Fortnite publisher Epic Games has suffered a setback in its legal fight against Apple, with a federal judge denying the company’s bid for an emergency order seeking to have the game restored on Apple’s App Store.
Technically, it was a split decision by U.S. District Court Judge Yvonne Gonzalez Rogers. In a ruling issued late Monday, she supported part of Epic’s argument but dismissed its claims of “irreparable harm” with regard to Fortnite — whose new season will start Thursday, she noted.
The next step in the case is a hearing on a preliminary injunction on September 28, which will feature a more substantive set of arguments on the issues of antitrust and trade involved in the case.
The two tech companies are in a legal battle over Apple’s policy of assessing a 30% fee to publishers of apps sold through its App Store. Epic ripped into Apple in a lengthy lawsuit earlier this month, labeling the fee a “tax” and circulating an animated parody of the tech giant’s fabled “1984” hammer-throw TV ad. Google joined Apple in banning Epic from its Android app store. Apple has defended its right to block apps that violate its rules, saying Epic’s flagrantly did so.
“Epic Games has not yet demonstrated irreparable harm,” Rogers wrote in her ruling. “The current predicament appears of its own making.”
The battle between the companies “has apparently been brewing for some time,” she added. “It is not clear why now became so urgent.”
A game engine Epic makes available to developers called Unreal Engine was singled out as an exception by Rogers, who granted that portion of the game company’s request for a temporary restraining order. She cited the impact on third parties who rely on Unreal Engine and its updates provided through the app store.
“The record shows potential significant damage to both the Unreal Engine platform itself, and to the
gaming industry generally, including on both third-party developers and gamers,” the ruling said. “The public context 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 and innovation, not eliminating them. Epic Games and Apple are at liberty to litigate against each other, but their dispute should not create havoc to bystanders.”
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