As Epic’s ongoing legal battle with Apple moves into an upcoming September 28 hearing, Epic is formally asking for a temporary injunction to Fortnite back to the iOS App Store.
In a new motion filed in court late Friday night, Epic calls Apple a “monopolist” who “retaliated with cruelty” on Epic’s “daring to challenge Apple’s wrongdoing”. Epic cites precedent to suggest it shouldn’t face such retaliation for fighting “illegal contract terms” in Apple’s developer agreements.
More specifically, Epic accuses Apple of using its monopoly in the distribution of iOS apps (via the App Store) “to force developers [Apple’s in-app purchasing platform]†
“Epic is a potential direct competitor to Apple in the relevant markets, poised to offer competitive app distribution and competitive payment processing on iOS,” the company writes. “To be clear, Epic isn’t trying to force Apple to offer distribution and processing services for free, nor is Epic trying to enjoy Apple’s services without paying for them. What Epic wants is the freedom not to use Apple’s App Store or IAP. and use and offer competing services instead.”
Epic will use its own short offer of “Epic Direct Payments” in the iOS version of at the end of August Fortnite demonstrating “consumer demand” for such payment processing competition — 53.4 percent of iOS users chose that instant payment option over the two-week period, Epic writes. The fact that the Instant Payment option offered a 20 percent discount off the asking price over Apple’s payment processing could, of course, have played a part in that result.
“Epic may never see these users again…”
Epic also continues to claim it is already suffering irreparable harm from Apple’s decision to decline Fortnite from the App Store. While players who have previously downloaded Fortnite on iOS it can still play, that version can’t be updated anymore. So iOS players won’t be able to connect to players on other platforms running the latest version of the game, a state of affairs that “has ripped millions of users away from their friends and family in the Fortnite community, which relies entirely on connectivity,” Epic writes.
“People prefer Fortnite relative to other games, in part because Fortnite facilitates a community. When millions of players have to disappear from the community overnight, Fortnite itself becomes less attractive, not only to the players who can’t participate now, but to every other player.”
Daily Fortnite Use on iOS has fallen 60 percent as a result of Apple’s decision, Epic says, while 63 percent of iOS players who don’t play on other platforms have been left stranded.
In the meantime, Fortnite can’t attract new users to iOS as the case progresses, time the company says can’t go back. “The continued loss of Fortnite as a gathering place for users on all platforms, Epic’s customers will lead to defects,” the company writes. “Epic may never see these users again… Such damage to Epic’s flagship app cannot be calculated in damage. “
If Apple ultimately gains the upper hand in the case, Epic argues that regular monetary damages could be used to compensate for any damages to the iOS maker.
In a ruling late last month, Judge Yvonne Gonzalez Rogers largely dismissed similar arguments that Epic had made when seeking a restraining order against Apple regarding Fortnite development on iOS. There was no “irreparable damage” to Epic, Rogers wrote, because “the current predicament [Epic’s] own make.”
“Your client created this situation,” Rogers told Epic’s attorneys during an August hearing. “Your client will not come to this action with clean hands… in my opinion you cannot sustain irreparable damage if you cause the damage yourself.”
“The court has recommended that Epic adhere to App Store guidelines as their case moves forward, guidelines they followed for the past decade until they created this situation,” Apple said in a statement earlier this month. “Epic declined. Instead they have “resubmit” Fortnite updates designed to violate App Store guidelines.”
“This is not fair to all the other developers on the App Store and puts customers at the center of their battle. We hope we can work together again in the future, but unfortunately that is not possible today.”