
Epic vs. Apple: Order Granting in Part and Denying in Part Motion for TRO [pdf] - devemanc
https://www.courtlistener.com/recap/gov.uscourts.cand.364265/gov.uscourts.cand.364265.48.0.pdf
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reissbaker
This seems like the predictable outcome. Epic knew Fortnite would get banned
when they started this; Apple is innocent until proven guilty, so no court
will force Apple to reinstate Fortnite unless Epic wins its antitrust suit.
But similarly, Apple's subsequent, second threat to ban Epic from doing other
lines of business via macOS tools (e.g. Unreal Engine development) seemed
excessive compared to other app bans, and seemed clearly an attempt to use
their power to shake down Unreal customers as retaliation for the dispute.

I'm not surprised that Epic started this: they want their game store on iOS,
and the only way that happens is via an antitrust lawsuit — and you can't
bring an antitrust lawsuit unless you show evidence of harm (aka, lost
Fortnite sales). Epic wanted Fortnite to be banned so that they could sue
Apple.

I'm curious why Apple escalated, though. It seemed to me like they were
playing into Epic's hand: they're currently under multiple antitrust
investigations by the US and the EU, and using their market power on iOS to
corral developers on macOS seems like a pretty obvious violation, and a novel
one: when they banned XCloud from iOS, for example, they didn't also ban MS
Office from running on Macs. Why would they try to do it now? When I first saw
it I wondered if Apple knew something we didn't (since Epic would pretty
obviously attempt to contest this in court), and that Apple was playing its
own 4D chess game against Epic, secure in the knowledge that the court
wouldn't grant the injunction on the macOS tools. But... Now it just looks
like a fit of pique? Apple had already banned Fortnite when it issued the
second threat to ban Unreal; the second threat ended with them getting nothing
(the court prevented them from following through) and left looking like
monopolists during the antitrust investigations. I don't get it.

~~~
Hamuko
>you can't bring an antitrust lawsuit unless you show evidence of harm (aka,
lost Fortnite sales)

I thought the point of antitrust is that it brings harm to the consumers and
not just some lesser company?

~~~
modeless
The harm to consumers is the higher price that they have to pay. Epic didn't
just keep the 30% all for themselves, they lowered prices.

~~~
fatbird
They lowered prices as part of a calculated stunt. If Apple is suddenly
turning over 20% of the purchase price to devs, why would the devs lower the
price when they're getting an extra 20% at the same price point?

~~~
rbranson
This is the correct take. Generally speaking, the prices set by Epic before
this stunt likely approximated the highest price which didn't reduce aggregate
spending.

------
supernova87a
Some choice sections:

 _"...On Thursday, August 13, 2020, Epic Games made the calculated decision to
breach its allegedly illegal agreements with Apple by activating allegedly
hidden code in Fortnite allowing Epic Games to collect IAPs directly. In
response, Apple removed Fortnite from the App Store, where it remains
unavailable to the date of this Order. Later that same day, Epic Games filed
this action and began a pre-planned, and blistering, marketing campaign
against Apple... "_

 _"...The Court finds that with respect to Epic Games’ motion as to its games,
including Fortnite, Epic Games has not yet demonstrated irreparable harm. The
current predicament appears of its own making... Epic Games admits that the
technology exists to “fix” the problem easily by deactivating the “hotfix.”
That Epic Games would prefer not to litigate in that context does not mean
that “irreparable harm” exists..."_

 _"...Epic Games moves this Court to allow it to access Apple’s platform for
free while it makes money on each purchase made on the same platform. While
the Court anticipates experts will opine that Apple’s 30 percent take is anti-
competitive, the Court doubts that an expert would suggest a zero percent
alternative. Not even Epic Games gives away its products for free..."_

Ouch.

Separately, the aspect of Apple pulling keys for the developer (e.g. Unreal
Engine) platform access was granted a preliminary injunction. Which seems
reasonable.

I guess Epic has a couple days to decide whether to give in or not: _"
Fortnite’s next season starts on Thursday, August 27, 2020, and will require
an update of the game to play."_

~~~
trumpeta
"...Epic Games moves this Court to allow it to access Apple’s platform for
free while it makes money on each purchase made on the same platform. While
the Court anticipates experts will opine that Apple’s 30 percent take is anti-
competitive, the Court doubts that an expert would suggest a zero percent
alternative. Not even Epic Games gives away its products for free..."

Apple is arguing as if accessing their platform for free was a crime. This
makes sense, since they have costs associated with reviews, code signing and
distribution. But that is of their own making. Walled gardens should be
outlawed.

~~~
ben_w
It being a walled garden is the only way I’m willing to trust it for accessing
all my account recovery emails, my 2FA SMSes, my bank details, and the sensor
package that can listen to everything I do while GPS tracking me and
monitoring my heart rate and gaze if I happen to be holding it where I can see
the screen.

Of course, that doesn’t mean I like being stuck with an American cultural
hegemony that says sexual content is forbidden, or that needs an encryption
export licence from the USA government for apps written by non-Americans for
non-Americans, and which still demands annual reporting to the US government
for using https.

I’m happy with any walls that meet basic security standards, but I do want _a_
wall, even if it would be nice to choose _which_ wall.

~~~
roblabla
The walled garden is not what protects your email, 2FA SMSes or bank details.
The OS sandboxing and permissions system do that. The two are often conflated,
but the two concerns are orthogonal really.

Heck, you could easily imagine a system where software distributed outside the
app store can only access a subset of perms if security is such a concern, and
that'd still be less anti-competitive

~~~
threeseed
Due to the way iOS works (dynamic dispatch) private APIs can _only_ be
prevented through an App Store review process.

And many of those APIs can be used to extract enough information to
fingerprint the device, determine your location or steal your data e.g.
accessing the list of WiFi networks or browser history.

So no. The two concerns are very much related.

~~~
brmgb
> Due to the way iOS works (dynamic dispatch) private APIs can only be
> prevented through an App Store review process.

That's complete nonsense.

Dynamic dispatch has nothing to do with the ability or not of a program to
access API. Dynamic dispatch is the selection at runtime of the correct
version of a polymorphic function. Obviously, you can sandbox programs written
in languages using dynamic dispatch.

~~~
threeseed
Be curious how you plan to prevent access to Apple's private APIs in
Objective-C, which uses dynamic dispatching, without breaking existing code.

I am sure Apple would love to know how you've managed to solve this.

~~~
gpderetta
sign existing code.

~~~
ben_w
They do, this is an argument about how they decide when it is OK to sign that
code.

------
nouveaux
Key quotes:

"the Court observes that Epic Games strategically chose to breach its
agreements with Apple which changed the status quo"

"However the showing is not sufficient to conclude that these considerations
outweigh the general public interest in requiring private parties to adhere to
their contractual agreements or in resolving business disputes through normal,
albeit expedited, proceedings."

"Epic Games and Apple are at liberty to litigate against each other, but their
dispute should not create havoc to bystanders."

------
square_usual
I'm pretty sure this is the outcome Epic was expecting.My impression is that
they don't want their stunts to affect the developers using Unreal Engine, but
they're OK with Fortnite being off the App Store if they can win a concession
for things like a smaller cut or even getting their EGS onto iOS.

------
devemanc
Related case: [https://www.courtlistener.com/docket/15721902/cameron-v-
appl...](https://www.courtlistener.com/docket/15721902/cameron-v-apple-inc/)
\-- please use the RECAP browser extension if you access any of these filings
( [https://free.law/recap/](https://free.law/recap/) )

------
CobrastanJorji
Ooph. I'm betting that Epic was expecting to get to stay on the app store
during the trial. That's an expensive difference. I would guess that Epic will
retract its change and ask to be relisted on the app store (and if that
doesn't happen, seek rapid redress in the court, since this TRO decision
explicitly lists Epic's ability to be reinstated as a rationale for why there
is no risk of irrevocable harm).

~~~
dogma1138
I don’t think Epic is making that much money from Fortnite on iOS to actually
care, I think they are using Apple because a) its an easy target and if they
win the ruling can be expanded to other platforms too where they currently
make the most money on and b) while they aren’t a major source of revenue now
Epic probably has bigger plans for mobile centric games down the line.

Basically now it’s the best time for them to do it, Apple is a huge target and
they can gain industry support, Fortnite is big enough that even the average
judge, jurist and jury member is likely aware of it and right now they stand
to lose very little financially from not being on iOS while the potential
future gains are insane.

~~~
CobrastanJorji
It's possible that revenue has fallen off, but it appears that Fortnite Mobile
revenue has been at least $500 million per year. If this trial goes on for two
years, that's potentially a billion dollars in lost revenue.
[https://sensortower.com/blog/fortnite-mobile-
revenue-1-billi...](https://sensortower.com/blog/fortnite-mobile-
revenue-1-billion)

~~~
dogma1138
Those estimates are utterly out of touch with reality to the point of being a
straight fabrication.

Fortnite brought Epic £1.8b in revenue for 2019, there is no way that 25% of
that came from iOS based on actual player data and experience, if their iOS
revenue is 10% of the total I will be in shock.

~~~
TMWNN
The US is disproportionately iOS compared to the entire world, and especially
US teens (I've seen estimates of something like 90%). iOS, the US, and US
teens are all disproportionately important to digital sales. Although the US
is 10% of TikTok's user base, it provides 50% of TikTok's revenue, nd from
Charli D'Amelio on down the most-followed TikTok accounts are almost entirely
American. That's why everyone expects TikTok's US (and possibly global)
operations to be soon sold; the US is the tail that wags the dog.

~~~
dogma1138
US is the majority of revenue sure, but there is no way that so much comes
from iOS the cross platform play numbers don’t back this up you can’t just
extrapolate from hypothetical app download figures.

The US is about 80% of Fortnite’s but the majority of the players are on
consoles not mobile. The 80% figure will change drastically when China grants
epic permission to monetize the game as the vast majority of their players are
in China.

~~~
mercer
I also imagine Epic made these kinds of calculations before trying to take on
Apple.

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tdrp
It seems some of the decision hinged around this fact from the article: "self-
inflicted wounds are not irreparable injury".

I wonder if there could have been a better sequence of events (e.g. sue first
rather than sneaking it in)?

~~~
modeless
I don't think that would have changed anything. The court still wouldn't have
granted Epic special permission to break App Store rules before the lawsuit is
resolved. Epic isn't in a worse position for trying it. Unless Apple refuses
to let them back in after reversing the payment changes, in retaliation for
filing a lawsuit. In which case I think the court should intervene.

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swarnie_
Does anyone find this whole situation very anti-consumer?

Two billion dollar tech companies have started a slap fight, both have claimed
its for the benefit of their customers/users but in reality its about their
own personal bottom line.

The gaming forums filling up with pre-teen twits willing to cheer lead for
their respective megacorp is thoroughly depressing to look at.

------
bwilli123
..."What was striking about all of these apps is that only three of them
functioned primarily on an iPhone; in the vast majority of cases Apple was
demanding in-app purchase offerings for functionality that was largely not
dependent on an iPhone:"

[https://stratechery.com/2020/rethinking-the-app-
store/](https://stratechery.com/2020/rethinking-the-app-store/)

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terpimost
Not sure if somebody did that bet. So I just put it here. I think the best
outcome could be when Apple be forced to allow bigger number of devices under
TestFlight - which is the way to install apps not from AppStore. Apple would
probably charge extra for that like $1 per device. No virtual goods outside of
apple payment system, same 30%.

~~~
StavrosK
The best outcome would be for Apple to allow alternate stores into iOS, like
Cydia.

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garmaine
TL;DR: Apple is prevented from revoking Epic’s developer credentials, as they
have threatened to do, at least until this plays out in court. Fortnite is
still off the App Store for the duration. A schedule is outline for next steps
in the legal case.

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IceWreck
This seems fair. Although Epic should separate its Unreal business from
Fortnite to avoid these in the future.

~~~
threeseed
You have to remember Epic has planned this all pretty carefully from the
start.

They benefit from being able to play the "if you ban us, you also ban all of
the little mom & pop game developers" sympathy card.

~~~
ben_w
That sounds like Epic abusing its “monopoly”[0] on game engines.

[0] in the same sense that Apple is a monopoly on smartphones, hence the air-
quotes.

