Judge won't make Apple restore 'Fortnite,' but protects Unreal Engine

Epic Games has failed to convince the court to order Apple to restore Fornite on the App Store, but it successfully secured a temporary order to stop the tech giant from pulling its developer tools. If you’ll recall, Apple told the video game developer that it’s terminating all its developer accounts and cutting “Epic off from iOS and Mac development tools” on August 28th shortly after the Fortnite debacle started. That would prevent Epic from distributing Unreal Engine to other developers, which use the software suite to build 3D games and other programs.

During the hearing, US District Judge Yvonne Gonzalez Rogers said Apple’s move against the Unreal Engine “seems like an overreach.” She noted that Apple’s contract for Unreal Engine is under Epic Games International, S.à r.l., and that the contract that was breached when the developer offered discounts for those who bypass App Store purchases is under Epic Games.

As journalist and lawyer Sarah Jeong explained, Apple believes that the SARL entity is a shell corporation. It wants the court to treat Epic Games and the SARL entity as a single company. Epic, however, insists that they’re not, and that Apple’s move to block Unreal Engine is a retaliatory action for offering direct Fortnite purchases.

“The Unreal Engine will be destroyed ...app developers need the ability for their app to be deployed on multiple platforms,” Epic’s lawyer Katherine B. Forrest said to illustrate what would happen if the court doesn’t grant a temporary order. “If Epic cannot offer that with the Unreal Engine, the Unreal Engine will cease to exist... Developers are fleeing the Unreal Engine now."

Apple’s lawyer Richard Doren countered that by saying that all Epic needs to do is to put a compliant version of Fortnite back on the App Store. When the judge asked him whether “the revocation of the engine will negatively impact third parties,” he tried to get out of giving a definitive answer. But upon being pressed to answer yes or no, he responded with: “That's why Epic should cure its breach, yes."

While Judge Rogers was inclined to grant a temporary order with respect to Unreal Engine from the start, she wasn’t very sympathetic with Epic when it came to Fortnite. She told Forrest that Epic created the situation: “Your client does not come to this action with clean hands,” she said, “...in my view, you cannot have irreparable harm when you create the harm yourself.”

Epic Games’ CEO Tim Sweeney has long been a critic of Apple’s and Google’s app store policies, particularly the one that gives them the right to take a 30 percent cut from in-app purchases. Then, earlier this month, the company offered players discounted Fortnite in-game purchases if they take the “direct payment” option instead of paying through the App Store or Google Play. The companies obviously didn’t like that, and both pulled Fortnite from their platforms on the same day. Epic sued both Apple and Google over their policies as a response, though it had to file a second lawsuit against the former after it notified the company that it’s pulling access to its developer tools.