Yesterday’s hearing on Epic’s request for a temporary restraining order against Apple has partially prevailed. While Judge Yvonne Gonzalez Rogers has denied Epic’s motion to have Fortnite return to the App Store, she has ruled that Apple cannot block Epic from the Apple Developer Program because of the Fortnite dispute. The TRO will be in place until a hearing on Epic’s motion for a preliminary injunction has taken place. That hearing is slated for September 28.
In her ruling, Judge Rogers indicated Epic had demonstrated to the Court’s satisfaction that Apple overstepped when they attempted to revoke Epic’s access to the development tools for iOS and macOS. She also pointed out that the tools access was normally handled by a separate subsidiary, Epic Games International, which did not break any rules.
“Apple does not persuade that it will be harmed based on any restraint on removing the developer tools,” she wrote. “The parties’ dispute is easily cabined on the antitrust allegations with respect to the App Store. It need not go farther. Apple has chosen to act severely, and by doing so, has impacted non-parties, and a third-party developer ecosystem. In this regard, the equities do weigh against Apple.”
However, Judge Rogers was less forgiving on the question of Fortnite and expressed skepticism that Epic would prevail in that matter. She did allow that “serious questions do exist” regarding Apple’s policies and the size of the cut it takes from developers but doesn’t believe Epic is going to get everything it wants. “While the Court anticipates experts will opine that Apple’s 30% take is anti-competitive, the Court doubts that an expert would suggest a 0% alternative. Not even Epic Games gives away its products for free.”
Judge Rogers summed up the matter of the tools access, and the larger Fortnite dispute, succinctly when she wrote, “Epic Games and Apple are at liberty to litigate against each other, but their dispute should not create havoc to bystanders.”
