Apple's 'Fortnite' takedown will cause incalculable harm to users, says Epic

Posted:
in iOS edited September 2020
Epic has petitioned courts once more in its antitrust battle with Apple over the App Store, arguing "Fortnite" should be reinstated to the digital storefront and protected from further retaliation, with the game already seeing 60% of its iOS users departing since the store takedown.




The ongoing legal tussle between Apple and Epic Games over whether Apple should allow third-party payment processing and to grant Epic its own digital storefront has moved on to a new phase. Late on Friday, Epic's latest filing with the US District Court for the Northern District of California, Oakland Division spells out its arguments against Apple's activity, as well as formally filing a motion for an injunction limiting Apple's actions against the company.

Following the August 24 ruling by U.S. District Court Judge Yvonne Gonzalez Rogers denying Epic's motion to force Apple into reinstating the game to the App Store, Epic's latest attempt to get what it wants has resulted in another lengthy filing. Spread across 182 pages, the filing consists of a notice of motion, a motion for a preliminary injunction, and multiple documents Epic believes supports its cause.

In its notice of motion, intended to apply to a virtual hearing set for September 80 over Zoom, Epic again accuses Apple of antitrust violations for its conduct in cutting off "Fortnite" from the App Store for using unauthorized payment mechanisms. In response, Apple "retaliated with ferocity" in removing the game and threatening to cut off all of Epic's developer program accounts.

"In short, accused of antitrust violations for misusing its power to create and maintain two monopolies, Apple used that same power to try and coerce Epic to abide by its unlawful restrictions," the document reads. "The Court should not allow Apple to enforce these restrictions."

In its reasoning to urge the court to make Apple undo its actions, Epic declares it is "likely to succeed on the merits," pointing out Apple's software platform control, which grants it "substantial market power" over developers and consumers. That power emboldened it to design restrictions to create and maintain monopolies in app distribution and in-app payment processing.

"Apple absolutely prohibits any competition in either market, leaving Apple free to impose distribution and processing terms unchecked by competitive forces," it continues. Epic then reiterates that, rather than forcing Apple into providing distribution and processing services for free, Epic is instead wanting "the freedom not to use Apple's App Store or IAP, and instead to use and offer competing services."

The Judge disagreed with Epic's argued point during the emergency injunction hearing.






The second point of the filing is the claim that, without injunctive relief, Apple's actions "will cause irreparable harm to Epic, as well as harm to countless third parties and the public interest." While Epic says it is "better positioned than many other companies to weather the storm," it also admits it "is not immune from irreparable harm."

As part of this so-called irreparable harm, Epic points to "Fortnite" being used for an "intensely social community," and that removing the game from the store "cleaved millions of users from their friends and family." Citing "the user outcry has been deafening," Epic claims it is already suffering "real harm," such as the decline of daily active users on iOS by 60% since removal.

There is also the claim of a loss of "goodwill" and reputation damage to Epic, with users defecting away from the game to other areas.

Aside from the loss of 60% of its daily active users, Epic also reasons this impacts heavily on the 63% of users who only access "Fortnite" via iOS and not other platforms. Its iOS app is also said to have the biggest audience across all platforms "Fortnite" exists on, with over 116 million registered users spending more than 2.86 billion hours in the app.

Meanwhile the removal of the game also "substantially impedes a major Epic initiative" to turn the game into a "full-fledged 'metaverse,' a multi-purpose, persistent, interactive virtual space." The harm to the game "cannot be calculated in damages," Epic reckons.

The damage is also threatening to impact the Unreal Engine, with Epic's inability to update the software causing millions of developers to be "harmed," including those who will have to change course or end projects following substantial investment. "Going forward, developers are questioning whether Unreal Engine would remain a viable platform on which to build their applications."

A third point further continues the damage theme, by declaring "the balance of harms tips strongly in Epic's favor," with Epic standing to lose considerably more than Apple, which would "at most lose some commissions from Epic."

A supposed concern of Apple's that every developer would follow Epic's lead with direct payments is deemed "speculative and implausible," as few would be able to "risk the wrath of Apple" and wouldn't have much incentive to do so.

Apple also stands to not lose much if Epic continued to use its tools for support while litigation is pending. Furthermore, Epic deems Apple hasn't asserted that agreements for those tools between Apple and Epic were breached, as well as those between Epic and third-parties using its engine.

"Thus, Apple's attack on these other businesses is pure retaliation to pressure Epic and deter others from challenging Apple's anti-competitive conduct," sums up Epic.

Epic also includes a proposed order that could be used by Judge Rogers as part of the September 28 hearing. Epic's requested results include restraining Apple from making the game unavailable, stopping any further adverse action against Apple, preventing Apple from affecting game code on user devices, and to restore its developer account.

The other documents in the filings constitute pro-Epic exhibits from a variety of sources, including a document from co-executive director of the Jevons Institute for Competition Law and Economics at University College London David S. Evans. Commissioned by Epic Games' counsel, Evans discusses how Apple has substantial market power in an antitrust market" for its App Store, as well as there being "material demand" for alternative payment systems.

Declarations in support of the motion are also included from Epic Games Technical Director of Engineering Andrew Grant, Vice President of Engineering Nicholas Penwarden, and CEO Tim Sweeney. Multiple exhibits of communications between the companies follow each, with a selection of consumer emails complaining about the takedown rounding out the list.

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Comments

  • Reply 1 of 86
    What a joke.  They are throwing spaghetti against the wall.  182 pages of pure horse shit 

    Epic snuck their own Trojan Horse payment code into their app in violation of the clearly written Terms of Service they signed.   It does not get any clearer than that .  Can you imagine the shit show if every app developer decided to pull this crap?

    It is remarkable that Tim Sweeney is still the CEO.   Only reason I can think of is that Epic is now owned 40% by Tencent and Tencent is happy with Fortnite users moving to PUG and also wants to set a precedent against Apple

    Day by day, the Fortnite brand and market position is getting destroyed by this self-inflicted gun shot to the head 
    edited September 2020 eyekeyretrogustotommikelelongpathaderutterericthehalfbeedysamoriapichaelrob53Samsonikk
  • Reply 2 of 86
    It would be different if Epic had never violated the rules of the store, filed an antitrust lawsuit, and then Apple kicked them off arbitrarily. That might be worthy of an injunction. Instead, Epic already admitted that they intentionally violated the contract and, as a result, the judge has told them that upholding the law regarding contracts is more important than giving them relief.
    longpathaderutterpichaelrob53bageljoeyanantksundaramJaiOh81flyingdppulseimagesspock1234
  • Reply 3 of 86
    No way the courts fold on this BS request. Epic created the entire mess all by itself. They chose to sue Apple because they didn't want to live up to the terms of a contract they willingly of their own free will entered into. Screw them.

    Their plan to beat Apple into submission was pathetic and poorly thought out. They should have known better. It won't work. Now they are paying the price.

    Epic's arrogance got them. Cutting off your nose to spite your face is not a productive strategy. Too bad Epic thought it would be.

    They made $750 million last year and were own track according to their own publicly released guidance to make $1 billion in 2020. Just look how they screwed that up, not to mention how what they have done will negatively impact all developers and especially the small ones who don't have the benefit of almost $1 billion in profits to bail out Epics stupidity.

    They put a gun barrel in their mouth and  pulled the trigger. Now they are surprised about what happened.

    Every one of the executives involved in hatching this plan should be terminated without compensation. 
    longpathaderutterBeatscornchipn2itivguylolliverwatto_cobrastourquecat52
  • Reply 4 of 86
    Apple doesn’t have to allow (let alone help, as they currently do) anyone at all to create apps that run in iOS, any more than Epic has to allow (and help) other companies to create apps that run in Fortnite. It’s as simple as that. 
    longpathXedmdriftmeyerBeatscornchipn2itivguylolliverwatto_cobra
  • Reply 5 of 86
    I guess they should have thought of their users before playing chicken with contract law.
    aderutterdysamoriarob53bageljoeyforegoneconclusionretrogustoagilealtitudemdriftmeyeranantksundaramBeats
  • Reply 6 of 86
    No amount of harm can ever come from not being able to play a video game.

    Get at JOB!

    kkqd1337rcfapichaelagilealtitudeflyingdpspock1234mdriftmeyerkhunbenjaanantksundaramBeats
  • Reply 7 of 86
    I’m not sure how this is different from before and why a judge wouldn’t just say that to avoid the damage by reverting the app to how it was before.
     The damage is self-inflicted, and as such, can be remedied by Epic solely.
    aderutterdysamoriapulseimagesBeatstenthousandthingsdarelrexmark fearingn2itivguylolliverapplguy
  • Reply 8 of 86
    I want to compare Apple's situation to a situation Walmart has. Walmart doesn't want its employees to unionize. Whether that's right or not is not the point under discussion. The fact is, Walmart doesn't want to deal with unions and it fights hard to maintain that status. I remember a Walmart a few hundred miles away from me whose employees successfully voted to unionize. I think Walmart shut down the store the next day saying that it wasn't a profitable store. Nobody could force Walmart to stay open. In a free country you can't force anyone to do business anywhere. (I would like to force Chick-Fil-A to open a store in my region, but I can't do that.) But everyone knew the Walmart store closed because the employees had just unionized. Apple needs to be prepared to play hardball like Walmart here. The danger to Walmart and Apple here are nearly identical, which is handing over power and decisions to other people. If Apple should lose control over its App Store policies to either the vendors who populate the store or to government officials who would make decisions on how the store operates, then Apple should close the store in that jurisdiction saying it isn't profitable. As with Walmart, no one can force it to do business in any jurisdiction. If the App Store closed down to third parties, that wouldn't be the end of the world. Apple could still sell its own software on its store, and it could even subcontract software to third parties to be rebranded as Apple software. (Microsoft does this too.) In fact Apple could also make an effort to write its own software that competes with Fortnite. Apple is 100% capable of writing that kind of software or alternatively buying a company that does it. And yet I still haven't been able to get a single person to agree with me on any of this.
    trustnoone00aderutterretrogustoflyingdplongfangpulseimagesBeatscornchipn2itivguymwhite
  • Reply 9 of 86
    GabyGaby Posts: 184member
    This is comical. They have some balls I’ll say that. But it seems that Tim Sweeney is  seriously delusional, and his quixotic strategy is proving incredibly misguided. 
    That they would try and offer purely speculative arguments as fact is objectionable in and of itself, or attempting to steer the narrative with buzzwords and by lying. Moreover giving opinion in such a calculated manner, as to be purportedly expert testimony shows a level of ignorance and arrogance that is frankly unforgivable. They are attempting to hoodwink both the courts and the public. Of course It would be very much in Epic’s financial interest if Apple were to be found guilty of Antitrust violations, with Sweeney and Co.  no doubt gleefully rubbing their hands in anticipation. Unfortunately wishing for a thing and kidding yourself does not make it so. Epic and it’s counsel are not in a position to speculate on such matters. Nor are they in a position to try and frame the argument of breach of contract and Apple’s resulting revocation of developer account as a further example of their illegal behaviour.  - "In short, accused of antitrust violations for misusing its power to create and maintain two monopolies, Apple used that same power to try and coerce Epic to abide by its unlawful restrictions,"
    Sweeney was well aware of his obligations with respect of developer contracts, and the consequences of breaching them. Epic is at fault pure and simple, no matter the justification. I also don’t think the implication that the judge, and by extension the court is incorrect in its previous findings is going to earn Epic any Goodwill either. 
     If I were Apple I would be adding defamation and libel to my list of grievances. I’m glad that the damage has been felt both financially and by a loss of customer goodwill. They may see now that the public are not the gullible Fools they took them to be. They are also lying about Unreal as the prior judgement already insisted on the status quo and therefore Apple has made no changes that impede the ability to maintain it. If, indeed as I imagine the case to be; their customers and potential clients are now jumping ship, then this is mess of Epics own making and fully deserved. Self belief can be a wonderful thing but self delusion can be extremely harmful. I think Sweeney should be assessed... One shouldn’t go into such a public chess match without being a competent opponent. He should perhaps read a well known book by Sun Tzu....
    On top of all that the Apple of 2007 was a markedly different and much smaller company so to suggest that The power Apple wields has emboldened it to make restrictions is again false. They haven’t made any substantive changes to the App Store since its inception. 
    If I were on The board of directors I’d be demanding a change in leadership.
    There certainly won’t be an IPO any time soon... Hopefully Unity steps up their game and puts Epic out of business altogether! 

    Granted I know apple is no saint and has many flaws but I am loathe to anyone that intentionally misleads people and presumes them to be idiots. Epic should have the backbone to be honest about their endeavours. 
    edited September 2020 retrogustoanantksundaramcornchipn2itivguywatto_cobraDetnator
  • Reply 10 of 86
    I still hope Apple bans all in app purchases for digital goods in games.
    Let’s go back to software being valued by having a cost associated with it up-front with a minimum app cost of say $4.99 which is still dirt cheap.
    dysamoriaGabyelijahgJaiOh81tobianblastdoorcornchipn2itivguymwhitelolliver
  • Reply 11 of 86
    Jamming the court with like-cases is a sure fire way to worsen their predicament. It also begins to build a new defense for apple: one against a vexatious litigant. 
    watto_cobra
  • Reply 12 of 86
    rcfarcfa Posts: 1,124member
    No disappearance of a game causes harm, if anything it’s a boon as it may bring one or the other out of a gaming addiction, and make them pick up a bock again...
    aderutterspock1234Beatsblastdoorlarryjwwatto_cobra
  • Reply 13 of 86
    dysamoriadysamoria Posts: 3,430member
    larryjw said:
    No amount of harm can ever come from not being able to play a video game.

    Get at JOB!

    Hot tip, mr superior: People with jobs play video games!

    No harm will ever come from not being able to play a specific video game, true. However, I’m sure it’s yet another irritation in a long string of daily irritations when the thing a person seeks to do as stress relief *after work* is blocked by Epic BS...
    watto_cobra
  • Reply 14 of 86
    dysamoriadysamoria Posts: 3,430member
    I want to compare Apple's situation to a situation Walmart has. Walmart doesn't want its employees to unionize. Whether that's right or not is not the point under discussion. The fact is, Walmart doesn't want to deal with unions and it fights hard to maintain that status. I remember a Walmart a few hundred miles away from me whose employees successfully voted to unionize. I think Walmart shut down the store the next day saying that it wasn't a profitable store. Nobody could force Walmart to stay open. In a free country you can't force anyone to do business anywhere. (I would like to force Chick-Fil-A to open a store in my region, but I can't do that.) But everyone knew the Walmart store closed because the employees had just unionized. Apple needs to be prepared to play hardball like Walmart here. The danger to Walmart and Apple here are nearly identical, which is handing over power and decisions to other people. If Apple should lose control over its App Store policies to either the vendors who populate the store or to government officials who would make decisions on how the store operates, then Apple should close the store in that jurisdiction saying it isn't profitable. As with Walmart, no one can force it to do business in any jurisdiction. If the App Store closed down to third parties, that wouldn't be the end of the world. Apple could still sell its own software on its store, and it could even subcontract software to third parties to be rebranded as Apple software. (Microsoft does this too.) In fact Apple could also make an effort to write its own software that competes with Fortnite. Apple is 100% capable of writing that kind of software or alternatively buying a company that does it. And yet I still haven't been able to get a single person to agree with me on any of this.
    I cannot imagine Apple ever shutting down the App Store as a response to these events. It’s too much money and influence for them to walk away from it just because of being assaulted by a cabal of insincere, opportunistic sociopathic executives from other companies.
    watto_cobra
  • Reply 15 of 86
    dysamoria said:
    And yet I still haven't been able to get a single person to agree with me on any of this.
    I cannot imagine Apple ever shutting down the App Store as a response to these events. It’s too much money and influence for them to walk away from it just because of being assaulted by a cabal of insincere, opportunistic sociopathic executives from other companies.
    I see, so you want Apple to accept any court or government decision in any jurisdiction that impacts how they run their store. So for example if the government in Russia said that the App Store percent must be dropped from 30% to 3%, as they very well might, you are saying Apple should comply. You don't want Apple to put up any fight.
    cornchiplolliverwatto_cobra
  • Reply 16 of 86
    Cry baby cry! You should’ve been thinking before you bite the hand that is feeding you!
    spock1234Beatsmark fearinglolliverwatto_cobra
  • Reply 17 of 86
    jkichlinejkichline Posts: 1,365member
    Incalculable harm? It’s a game for crying out loud. Get a grip Epic. Maybe gamers may discover the outdoors. Our work productivity will probably increase too along with GDP from this.
    Beatsmark fearingcornchiplarryjwwatto_cobra
  • Reply 18 of 86
    What if all the other app Developers decided to do what epic is trying to do wouldn’t that ruin the App Store experience? Not to mention the possibility of what could happen to the entire IOS platform.
    lolliverwatto_cobra
  • Reply 19 of 86
    Harm of their own making... and now they’re busy building their own games platform the epic store. To compete with steam and others wonder whether they be happy if clients on their platform weren’t willing to pay I think not... ! Kettle pot black
    aderutterBeatsmark fearinglolliverwatto_cobra
  • Reply 20 of 86
    genovellegenovelle Posts: 1,414member
    I want to compare Apple's situation to a situation Walmart has. Walmart doesn't want its employees to unionize. Whether that's right or not is not the point under discussion. The fact is, Walmart doesn't want to deal with unions and it fights hard to maintain that status. I remember a Walmart a few hundred miles away from me whose employees successfully voted to unionize. I think Walmart shut down the store the next day saying that it wasn't a profitable store. Nobody could force Walmart to stay open. In a free country you can't force anyone to do business anywhere. (I would like to force Chick-Fil-A to open a store in my region, but I can't do that.) But everyone knew the Walmart store closed because the employees had just unionized. Apple needs to be prepared to play hardball like Walmart here. The danger to Walmart and Apple here are nearly identical, which is handing over power and decisions to other people. If Apple should lose control over its App Store policies to either the vendors who populate the store or to government officials who would make decisions on how the store operates, then Apple should close the store in that jurisdiction saying it isn't profitable. As with Walmart, no one can force it to do business in any jurisdiction. If the App Store closed down to third parties, that wouldn't be the end of the world. Apple could still sell its own software on its store, and it could even subcontract software to third parties to be rebranded as Apple software. (Microsoft does this too.) In fact Apple could also make an effort to write its own software that competes with Fortnite. Apple is 100% capable of writing that kind of software or alternatively buying a company that does it. And yet I still haven't been able to get a single person to agree with me on any of this.
    I totally agree 100%!
    edited September 2020 cornchipwatto_cobra
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