Judge in Apple ‘Fortnite’ case slams Epic Games’ lies by omission

Judge Yvonne Gonzalez Rogers of the United States District Court for the Northern District of California is presiding over an antitrust lawsuit between Apple and Epic Games, maker of the video game Fortnite. The judge repeatedly slammed Epic on Monday on its legal theories and tactics in the company’s case against the Apple’s App Store.

Apple App Store on Apple devices
Apple’s App Store

Brian Fung for CNN Business:

She did not give a timeframe for a decision on the injunction. She also said that given her schedule, the case is not likely to go to trial until July 2021. And, she added, she would prefer the case be tried before a jury.

Judge Gonzalez Rogers looked skeptically at many of Epic’s claims, explicitly telling the company several times in the hearing she was not persuaded by its arguments or its strategy.

Epic knew that it was breaching its contract with Apple when it published the update, but did it anyway, she said, accusing the company of dishonesty… “You did something, you lied about it by omission, by not being forthcoming. That’s the security issue. That’s the security issue!” Gonzalez Rogers told Epic. “There are a lot of people in the public who consider you guys heroes for what you guys did, but it’s still not honest.”

[Epic] cited Apple’s in-app payment system as an example of illegal tying — when a company bundles two products together for anti-competitive gain.
But there is no tying going on with Apple’s in-app payment system, Gonzalez Rogers observed. “I’m not particularly persuaded,” she said of the in-app payment mechanism. “I just don’t see this as a separate and distinct product.”

Nor did the judge buy Epic’s argument that Apple has harmed the distribution of Fortnite because of Apple’s exclusive control of the iOS App Store… “Walled gardens have existed for decades,” she said. “Nintendo has had a walled garden. Sony has had a walled garden. Microsoft has had a walled garden. What Apple’s doing is not much different… It’s hard to ignore the economics of the industry, which is what you’re asking me to do.”

MacDailyNews Take: Epic games, indeed.

When the judge is calling you a liar and throwing out your arguments left and right, you don’t have a case.

The reason for this sham is that Fortnite was dying because it was a passing fad and Epic was on the slide down, desperate to boost their biggest moneymaker in whatever way possible. One dead giveaway: Epic’s big “protest” video (“1984” parody) was ready to go immediately.

The epic whiners at Epic Games want all of the benefits afforded to them by Apple’s App Store for free. How much did it cost developers to have their applications burned onto CDs, boxed, shipped, and displayed on store shelves prior to Apple remaking the world for the better for umpteenth time?

12 Comments

  1. It’s actually worse what Epic is trying to do:
    They’ve admitted that only 10% of their users come from iOS but they get a majority of their revenue from iOS users.
    They just want more income at the expense of Apple.

    Epic is being underhanded as they knew what they did was wrong and they knew the terms was what they agreed to before they signed onboard.

    Plus, Epic doesn’t mind collecting their fees from the Developers using their Unreal engine so they’re talking out of both sides of their mouth. Give us money but we’re not going to pay what we owe to Apple.

    IMHO

  2. Seems like the judge (or a lawyer) could ask Epic some very simple questions:

    If Apple allows you to set up a store on their platform, will you allow independent developers to sell their apps through your store?
    If so, will you be expecting to take a commission from them? How much? Why?
    If so, will you assume full responsibility/liability for any security issues related to those apps?
    Will you monopolize third party customer info or will you plan on sharing it with said independent developers?

    So glad we have a judge in this case who clearly “gets it.”

    1. Speculated answers:

      I suppose if the independent dev used the Unreal engine (a platform, as is iOS) then Epic should have no problem regardless of client OS.

      Since income is already derived from licensing the Unreal engine, additional commissions may not be necessary.

      If Epic feels it is too much of a burden, they can simply limit their store to only their products as the same products are available from other sources for each OS. They have no policy limiting Unreal engine based games to sales solely through their ‘store’.

      Same as the ‘liability’ response above.

  3. Epic picked some really dumb lawyers. Their entire legal argument and PR blitz has been about Apple’s App Store being a monopoly. When the judge asked them to explain this they didn’t have anything resembling a coherent thought. As the judge correctly said, “walled gardens” have existed in the electronics industry for decades. If you design and manufacture a piece of hardware, you are able to control the experience. If you want to have a digital store, you can open one. You can set up contracts with developers and charge a hosting fee for serving the customers. You can decide what payment system will be supported. None of this is illegal. But Epic suddenly thinks so because Apple is doing it. tim sweeney is ultimately stupid or just getting paid to do this nonsense. Every step epic takes, makes them more ignorant to the legal reality.

  4. Thankfully there’s an impartial judge that sees through Epic Games’ lies in that Apple isn’t doing anything different to Microsoft, Sony and Nintendo before them in which they have had walled gardens and charge the same as Apple which is the industry standard (30%), this is all about Epic Games wanting their own AppStore which Apple will never allow and rightly so because it would open iOS to the same malware and abuse that Google is struggling to control on the Play Store. And to Applecynic, if you want alternative AppStores you already have that choice on Android nobody is forcing you to use iOS or iPadOS (in your case) give it up because you are a minority that complains about the AppStore that most people but a small but obnoxious vocal minority are happy with and continue to buy iPhones these reasons but the one thing I agree with you is on cloud gaming which Apple is wrong in their stance.

    1. Sony and Nintendo generally have a ‘walled’ garden due to controlling the physical media manufacturing rights for their consoles. Apple does not have the same limitation that ‘forces’ a walled garden as the former two. The console gaming industry is moving to digital downloads and there may be a time in the near future that titles available for download will lead to multiple ‘stores’ for them also. It would not be prudent IMO to base Apple’s reason for a ‘walled garden’ on the console market unless the intent is just to kick the can for a few years delay.

      1. Seems like you’re getting distracted by the relevancy of physical media. All those platforms, and more, have digital storefronts. It is completely within each platform’s right to manage that. By Epic’s tragic rationale they seem to think they are entitled to have their digital storefront available within any other platform’s digital storefront. A store within a store? That’s not up for them to decide. They signed a contract to be a developer for that platform. They don’t like the fact that a platform has its own rules and design for the experience that company implemented. Tough. Welcome to the business world of contract law. I’ll write you a check for a million dollars of Nintendo ever allows another digital store within their store.

        1. I’m not arguing Epic’s right to a store within a store by their bypassing Apple’s App store payment system. I’m saying that the reason the walled garden exists for Nintendo and Sony is based on physical media and should the trend become primarily digital downloads, the argument against 3rd party storefronts (especially for the large ‘trusted’ game brands) on basis of security/privacy becomes very weak. More so if the exclusive ‘storefront’ denies entry due to reasons outside of security or privacy.

          1. The situation doesn’t change if its digital or physical goods. If you have developed a “store”, you get to set the terms for what goods are sold in that store. No business can compel another business to sell its goods. This isn’t an antitrust issue at all, no matter how much Epic’s brain dead lawyers try to argue. As already cited, they couldn’t even elucidate this concern when asked by the judge. iOS is simply one of several platforms that a developer can choose to create for.

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