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Epic can continue to support Unreal Engine on Mac and iOS for now

Though the lawfight's far from over

While Epic and Apple's legal battle over app stores isn't due in court until next year, one important matter is settled for now: Epic will get the keep the Apple developer accounts which let them update and maintain Unreal Engine on Mac and iOS. Apple had threatened to disable those too, not just the accounts Epic use for Fortnite, until a judge approved Epic's appeal for a temporary restraining order. That's now settled for longer thanks to a preliminary injunction issued on Friday. But the judge also held firm in her decision not to force Apple to let Fortnite back on iThings. Everyone's a winner, everyone's a loser.

Epic and Apple (as well as Google) have been lawfighting since Epic snuck their own payment system into the mobile version of Fortnite, which bypassed the official payment systems. That got the game kicked off both app stores. Epic are taking a dramatic stand against walled gardens and their strict rules, and have been waging a PR war against Apple in particular. Then Apple threatened to kill all of Epic's dev accounts, and Epic say hey hang on. Some of Epic's arguments have failed to sway the judge (and she doesn't seem best impressed with their bluster), but she does agree that it's in the public interest for Epic to keep their Unreal Engine dev accounts.

"Epic Games and Apple are at liberty to litigate this action for the future of the digital frontier, but their dispute should not create havoc to bystanders," district judge Yvonne Gonzalez Rogers said in Friday's order (via The Verge). If Epic did lose their Unreal Engine dev accounts, all Mac and iOS games built in it would be unable to receive updates for bugs, security, or Apple's ever-changing app store requirements, as well as new features. "The record demonstrates potential significant damage to both developers and gamers absent the issuance of a preliminary injunction," the judge said.

She also noted that Apple later threatening to close dev accounts Epic use for Unreal, after starting with the Fortnite ones, "appears to be retaliatory". And she said there was no evidence behind Apple's weird claim that if they didn't, Epic could slip secret code into Unreal Engine. "Further," she observed, "to do so would be tactically disastrous for Epic Games and its affiliates as it would prove Apple's point with respect to its need to maintain its walled garden or closed platform to protect iOS consumers against security attacks." Good grasp of common sense, this judge.

And as before, Gonzalez Rogers does not agree that it's in the public interest for Apple to be forced to accept Fortnite back on iOS, and declined Epic's request to order that.

She said the court "has empathy for Fortnite players", especially considering that video games and virtual worlds "are both social and safe" and we're in a pandemic. "However, there is significant public interest in requiring parties to adhere to their contractual agreements or in resolving business disputes through the normal course," she said. "Thus, the public interest factor weighs in favour of Apple as to Fortnite."

She also noted that the court shouldn't be making hasty decisions "regarding the impact of the walled garden model given the potential for significant and serious ramifications for Sony, Nintendo and Microsoft and their video game platforms."

Judge Gonzalez Rogers is also currently presiding over a separate antitrust class action against Apple brought by other developers unhappy with App Store rules, and doesn't see why Epic forced the issue this way. She said, "Epic Games has never adequately explained its rush, other than its disdain for the situation. The current predicament is of its own making." Nor is she convinced by arguments that Fortnite players and Epic's reputation will wrongly suffer irreparable harm because "such harm flows from Epic Games' own actions and its strategic decision to breach its agreements with Apple."

This was only a preliminary injunction, so it could all change after the trial. Gonzales Rogers had proposed a jury trial, expecting it to perhaps start in July 2021, though both sides have requested it's settled by a judge, not a jury.

Epic said in their semi-victory statement that they "will pursue all avenues to end Apple's anti-competitive behaviour." Apple's own semi-celebration boasted about the "economic miracle" the App Store has enabled and said they "look forward to sharing this legacy of innovation and dynamism with the court next year." Goodness me, they're all going to be insufferable.

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