High stakes legal action continues in the Epic lawsuit against Apple Games, as the court has made its first decision on the matter, albeit an early and temporary one.
Late yesterday, the court issued a temporary restraining order (TRO) on behalf of Epic Games, ordering that Apple cease actions to suspend or terminate Epic Games affiliates from the Apple Developer's Program. This is particularly noted in regards to Epic International, and the Unreal Engine, which had previously been targeted by Apple under a policy of deactivating all related accounts. The ruling notedly does not protect Fortnite or allow it back on the storefront in any way. This comes after Microsoft threw in to protect Unreal Engine on iOS recently.
In the ruling Judge Yvonne Gonzalez Rogers notes that there are 4 matters that determine whether a case should have a temporary restraining order granted. They are:
- The case is likely to succeed on its merits
- The lack of preliminary (or pre-hearing) relief is likely to cause irreperable harm
- The balance of equities is in their favor
- The TRO is in the public interest
It is worth noting that while all factors need be present, the degree of them can be allowed to offset another. For example, a case that may be only slightly likely to succeed on its merits, but where harm is significant may be granted a TRO while a similar case where the harm is less may not. In this case, the court does not say that Epic is likely to succeed, but that there are serious questions in regards to Apple.
On irreperable harm is where we see the major difference. The court determines that all the Fortnite losses do not really meet this as Epic Games could litigate the case while staying on the App Store and paying Apple the 30% cut, seeking to recoup losses later in the legal action. That makes the Fortnite losses due to the Epic Games lawsuit a self-inflected wound, and the court notes that previous cases have found that those do not constitute irreperable harm, and the harm is reparable by Epic Games disabling the payment option update and becoming compliant with the terms of Apple's agreement.
The matter of Unreal Engine though is different. The Apple Xcode and Apple SDKs agreements are separate from the program license agreement, and Epic International (who maintains Unreal Engine) appears to have a separate account from Epic Games. The ruling notes that ruling on Apple's general policy of removing all affiliated accounts is something that would be better done when able to be evaluated with a full briefing, and that, "Apple is hard-pressed to disputethat even if Epic Games succeeded on the merits, it could be too late to save all the projects bythird-party developers relying on the engine that were shelved while support was unavailable.Indeed, such a scenario would likely lead to nebulous, hard-to-quantify questions, such as, howsuccessful these other projects might have been, and how much in royalties would have beengenerated, much less the collateral damage to the third-party developers themselves."
A similar line continues throughout the ruling, with Judge Rogers noting towards the end of her ruling,
The record shows potential significant damage to both the Unreal Engine platform itself, and to thegaming industry generally, including on both third-party developers and gamers. The publiccontext in which this injury arises differs significantly: not only has the underlying agreement not been breached, but the economy is in dire need of increasing avenues for creativity andinnovation, not eliminating them. Epic Games and Apple are at liberty to litigate against eachother, but their dispute should not create havoc to bystanders. Certainly, during the period of atemporary restraining order, the status quo in this regard should be maintained
Thus, for now it is that Fortnite will stay off of the Apple App Store, but Unreal Engine games don't have to worry about their Engine going without updates for a while longer. The temporary restraining order will remain in effect until a ruling on the preliminary injunction is made, which will happen after a September 28th hearing. You can read all of the ruling here (thanks The Verge), which marks the first decision in what promises to be a protracted legal battle.
