Apple says Fortnite can come back anytime, once Epic cleans up its ‘hot mess’ null

Last week Epic Games sued Apple after Fortnite was removed from the iOS App Store, an action Apple took after Epic released an update that allowed Fortnite players to bypass Apple’s in-app purchasing system to buy V-Bucks. Apple didn’t stop at pulling Fortnite, though: It also informed Epic that as a result of its actions, all of Epic’s developer accounts and access to iOS and Mac development tools would be terminated on August 28. Yikes.

Epic quickly sought a temporary restraining order preventing Apple from taking these steps, saying it would have have a “devastating” impact on the company, which certainly seems believeable. Today Apple filed its opposition to that TRO request, saying that Epic’s problems are entirely of its own making—and that they would go away immediately if Epic would simply roll back the violating update.

“Epic’s agreements with Apple expressly spell out that if an app developer violates the rules of the App Store or the license for development tools—both of which apply and are enforced equally to all developers large and small—Apple will stop working with that developer. Developers who work to deceive Apple, as Epic has done here, are terminated,” the filing says (via MSNBC).

“So when Epic willfully and knowingly breached its agreements by secretly installing a ‘hotfix’ into its app to bypass Apple’s payment system and App Review Process, it knew full well what would happen and, in so doing, has knowingly and purposefully created the harm to game players and developers it now asks the Court to step in and remedy.”

Apple also noted that temporary restraining orders “exist to remedy irreparable harm, not easily reparable self-inflicted wounds,” adding that Epic could have avoided suffering any damage at all if it had filed its lawsuit without breaching its agreements. In fact, that’s apparently still an option.

“All of that alleged injury for which Epic improperly seeks emergency relief could disappear tomorrow if Epic cured its breach,” the filing states. “Apple has offered Epic the opportunity to cure, to go back to the status quo before Epic installed its ‘hotfix’ that turned into its hot mess, and to be welcomed back into the App Store.”

“All of this can happen without any intervention of the Court or expenditure of judicial resources. And Epic would be free to pursue its primary lawsuit. But Epic does not want to remedy the harm that it contends requires immediate relief because it has a different goal in mind: it wants the Court to allow it to free ride on Apple’s innovation, intellectual property and user trust.”

Apple’s opposition to the request for a restraining order also rejects Epic’s broader allegations, including that Apple operates as a monopoly, that in-app purchases are a separate product, and that its case has a high likelihood of success on its merits. But the crux of the argument is clearly that Epic caused all of this to happen, and it can’t reasonably expect the courts to clean up that mess.

“At the outset, equity does not favor Epic because it has unclean hands,” the filing says. “Epic has undeniably breached its agreement with Apple, and a party breaching a contract, as Epic here, has no standing to seek equitable relief.”

Interestingly, the same day that Epic filed its initial lawsuit against Apple, Epic founder and CEO Tim Sweeney said on Twitter that the studio was not seeking a special deal with Fortnite, but was in fact “fighting for open platforms and policy changes equally benefiting all developers.” 

In a declaration made in support of Apple’s opposition, however, Apple senior vice president of worldwide marketing Philip W. Schiller said that’s not actually the case.

“On June 30, 2020, Epic’s CEO Tim Sweeney wrote my colleagues and me an email asking for a ‘side letter’ from Apple that would create a special deal for only Epic that would fundamentally change the way in which Epic offers apps on Apple’s iOS platform, which is the operating system that runs Apple’s iPhones and iPads, and enable Epic to make more money at Apple’s expense,” Schiller said.

Schiller said Sweeney sent a second email on July 17, indicating “that he was still pursuing a special deal for Epic,” and then a third, at around 2 am on August 13, declaring that “Epic will no longer adhere to Apple’s payment processing restrictions.”

In a response to Schiller’s declaration, Sweeney said on Twitter that the statement is “misleading,” noting that while he sought approval for Epic to bypass the App Store payment system, he also expressed “hope that Apple will also make these options equally available to all iOS developers.”

Schiller alluded to that point in his declaration, but said it was part of the reason that Apple is unwilling to accede to Epic’s demands: “Moreover, what Mr. Sweeney asked for would have to apply not only to Epic but, based on the philosophy of our App Store, to all developers; this would have a catastrophic effect on the user experience and Apple’s business model.”

Epic took another public shot at Apple earlier today, announcing a #FreeFortnite tournament with prizes including the “Tart Tycoon” skin—the sinister apple man from its 1984 parody video—and a “dad hat” with an Apple-style llama logo. Epic is also currently embroiled in a similar lawsuit with Google over the Android Play Store.

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