(Bloomberg) — The judge hearing Apple Inc.’s fight with Epic Games Inc. said she’s “inclined” not to order the iPhone maker to reinstate the Fortnite app as the companies faced off in their first courtroom showdown.
But U.S. District Judge Yvonne Gonzalez Rogers said during a hearing Monday that the dispute over Apple’s App Store isn’t a “slam dunk” for either side. She appeared sympathetic to the game developer’s argument that Apple retaliated against it by threatening to cut off Epic’s graphics technology, known as Unreal Engine, a suite of software used by developers to build 3-D games and other products.
Apple faces a backlash from some developers who say its standard App Store fee of up to 30% and other policies are unfair and designed to benefit iPhone maker’s own services. The fight blew up Aug. 13 when Epic told customers it would begin offering a discounted direct purchase plan for items in Fortnite, and Apple then removed the game app, abruptly ending access for more than a billion iPhone and iPad customers.
Rogers appeared unconvinced by Epic’s argument that it’s suffering “irreparable harm” as complaints from consumers that they can’t play Fortnite are pouring in and hurting Epic’s reputation.
But the judge also said Apple’s decision to block access to the Unreal Engine “does to me look retaliatory.”
Cutting off Epic from Apple’s iOS and Mac developer tools would mean the gaming company can no longer distribute Unreal Engine to other developers, Epic said Sunday in a legal filing. Microsoft Corp., which makes the Xbox, uses the technology for games developed for consoles, PCs and mobile devices and is backing Epic in court.
Apple has said that Epic Chief Executive Officer Tim Sweeney sought a “side” deal seeking an exclusive storefront for Fortnite, a move that Apple executives argued would fundamentally upend how the App Store works. Sweeney maintains he wasn’t asking for special treatment but for Apple to make the same option available to all developers.
Of the 2.2 million apps available on the App Store, the 30% fee is billed to more than 350,000. Apple reduces the fee to 15% for subscriptions after a user signs up for more than a year.
The case is Epic Games Inc. v. Apple Inc., 20-cv-05640, U.S. District Court, Northern District of California (Oakland).
(Updates with judge’s comments in fourth paragraph)
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