Lawyers for Apple and Epic once again virtually met with Yvonne Gonzalez Rogers to do battle today. As with the last hearing, this was again over Epic’s requests for injunctions barring Apple from banning the Unreal Engine from Apple platforms, and more importantly for Epic, Fortnite from the iOS App Store. While the first hearing made it seem very likely that Unreal will remain unharmed, Epic did not fare well at all in its defense of Fortnite today.
Other than a few jabs at Apple over competition and where their fee structure is based on, Judge Rogers reserved the vast majority of her pointed comments and scorn for Epic. And it wasn’t just on one point, either.Right off the top she criticized their legal team for not producing discovery documents in a timely manner. It was mostly downhill from there.
Judge Rogers shot down their argument that Apple’s In App Purchases are a separate monopoly enterprise down before a word was said by either legal team. She refuted the 30% cut being excessive herself, without a word from Apple’s counsel. Epic’s argument about when and how Apple supposedly became a monopoly came under fire. The continued arguments defending their breach of contract to set up their own IAP solution and drew an allegation of flat-out dishonesty from the judge. Ouch. From there, Judge Rogers made it clear that she believes Epic brought the hardship of Fortnite being tossed out of the App Store on themselves.
In a nutshell, she wasn’t buying much, if any of it. While I don’t think Apple made any headway against Unreal (and I don’t think its reasonable that they would be able to), it seems all but certain that Fortnite is out of the App Store for the rest of this year and most of 2021. Judge Rogers even tried to extend an olive branch with a proposal to put any money related to Fortnite in escrow pending the end of the case if they remove their IAP hack and rejoin the App Store. Epic’s team’s reply was incredibly smug: “This court should not give its assistance to unlawful provisions by monopolists…” Considering that it came at the end of a convincing beatdown, it sounded all the more petty and small to me.
None of what happened today guarantees Apple a win in this case, but it don’t hurt, either. This was really just the end of the beginning of this case. However, today’s action did underline the fact that Epic has the tougher road to victory of the two. The judge keeping Fortnite out of the App Store (or making Epic bend to get it back in) is a win for Apple. The case being pushed well into next year is also good for Apple, as Epic’s team was clear that they wanted the case to proceed as quickly as possible.
Other than preserving Unreal on Apple platforms, Epic looks to have come up empty in round 1. Also, it was very clear that Judge Rogers is starting off the proceedings with opinions that don’t seem to be in their favor. It was clear today that she did not agree with their arguments on Apple’s IAP, Apple’s status as an illegal monopoly, or their payment structure being excessive. However, if this does turn out to be a jury trial, which Judge Rogers recommended, then that won’t matter other than in how she allows the evidence of the cases to be presented.
I won’t even attempt to hide my bias here. I can’t stand Epic or Tim Sweeney and have nothing but contempt for what they are up to with this case. That has more to do with my stance on free enterprise and the rights of a business to run a private marketplace than how I feel about Apple. I don’t favor any business that seeks to restrict a product distribution model that I use everyday in my day job.
I don’t deny that Apple needs to change how they administer the App Store in some ways, and I have written about that before. While I am happy that Apple has made a few conciliatory moves in regards to its online marketplace and developers recently due to increasing pressure on them, I do believe they still have a long way to go. However, I also agree with Apple’s legal team that Epic’s suit is attempting to invalidate their private marketplace business model in favor of one that directly benefits Epic as a massive company, themselves. There is nothing about their suit that beneficial for any person other than Tim Sweeney or any company other than Epic.
Whether we are talking about Apple or Google, I think these cases are a pathetic joke and nothing more than a publicity stunt by a petulant billionaire with deep enough pockets to stay in the game while trying to portray himself and his company as the little guy. Because of that, I won’t hide the fact that I found following today’s proceedings pretty entertaining.
I have a feeling that Tim Sweeney is already finding the reception in both the court of public opinion and the actual court cooler than he expected at the outset of his little quest. I hope that continues for the duration of his three ring circus and that it ends with a resounding loss for him and his company in the Supreme Court. Let the governments of the US and the EU regulate and public pressure and developer criticism change Apple. We can already see that the increasing pressure on them, completely independent of this trial, is starting to produce positive results. After today, odds are that this sideshow won’t achieve anything more than a lot of headlines and a billion dollars being flushed down the drain.