As previously reported, Apple and Epic are currently engaged in a legal battle over ownership and control of private ecosystems. Wherein Apple maintains they have a right to control their private ecosystem, whereas Epic is alleging permitting them to do so is a violation of the Sherman Act.
A new development has occurred in the case, as Apple has revoked Epic’s development account. Without the tools provide by having access to this account, Epic will no longer be able to develop Fortnite for any iOS devices. Furthermore, they are now unable to further develop the Unreal Engine for iOS systems.
Epic has filed an injunction to have the law compel Apple to do business with them during the legal proceedings.
(1) restraining Defendant Apple Inc. (“Apple”) from removing, de-listing, refusing to list or otherwise making unavailable the app Fortnite, including any update thereof, from the App Store on the basis that Fortnite offers in-app payment processing through means other than Apple’s In-App Purchase (“IAP”) or on any pretextual basis; (2) restraining Apple from removing, disabling or modifying Fortnite or any code, script, feature, setting, version or update thereof from any iOS user’s device; and (3) restraining Apple from taking any adverse action against Epic, including but not limited to restricting, suspending, or terminating any Epic entity from Apple’s Developer Program, on the basis that Epic enabled in-app payment processing in Fortnite through means other than IAP or on the basis of the steps Epic took to do so.
This motion is made on the grounds that (1) absent a temporary restraining order granted without further notice, Epic is likely to suffer irreparable harm; (2) that Epic is likely to succeed on the merits of its claims that Apple’s conduct violates the Sherman Act; (3) that the balance of equities tips sharply in Epic’s favor; and (4) that the public interest supports an injunction.
It is unlikely that Epic’s injunction will receive a favorable verdict. Outside of contractual agreements, courts cannot compel an individual or corporation to engage in activity with another entity. As Epic willfully and with meditation violated Apple’s Terms of Service with the intent of suing, there is no contract left to enforce.
Further, it is unlikely their lawsuit will succeed as Apple’s iTunes App Store is not a public marketplace. The Atari Games Corp. V. Nintendo of America lawsuit established a company that has the legal right to maintain control over their private ecosystem.
What Epic is attempting to do with their lawsuit is to undo decades of law that enshrines ownership to the manufacturer of their product’s ecosystem. If this succeeds the precedent will not only apply to Apple and Google, but will also apply to Nintendo, Microsoft, and Sony.
Unfortunately for Epic, they miscalculated.
Apple has a considerable market dominance from millions of their products’ loyal consumers. They are in a position where they are capable of weathering the loss from no longer having Fortnite and the Unreal Engine 4 on their ecosystem. Epic, by comparison, has competition in that ecosystem. Competition that is more than eager to snatch up developers, so even in the event of a hypothetical victory as implausible as it is, they would lose a substantial market hold from this ban.
Also keep this in mind, Apple will keep them banned, and their account terminated through the initial proceedings and afterward in the event of a victory. If Epic were to win, then the ban would continue through the appeals process that Apple, Google, Sony, Microsoft, and Nintendo will take all the way to the Supreme Court if necessary. This will take years, during which time Epic would have zero access to the market. Even if they somehow win, there is a good chance the courts will rule that Apple still does not have to provide them access to the development tools rendering this whole procedure a pyrrhic victory.
