Epic judge permanently restrains Apple from blocking Unreal, but not Fortnite

This was more or less expected given the judge's ruling at the TRO stage and what happened during the hearing last week.

A few interesting quotes:

> First, Epic Games avers that the iOS market is distinct from other video game platforms because Sony, Nintendo, and Microsoft do not make much profit, if any, on the sale of the hardware or console—unlike Apple, which allegedly makes significant profits from the sale of each iPhone. This distinction is without legal precedent under section 2 of the Sherman Act. Indeed, Sony, Nintendo and Microsoft all operate similar walled gardens or closed platform models as Apple, whereby the hardware, operating system, digital marketplace, and IAPs are all exclusive to the platform owner. As such, a final decision should be better informed regarding the impact of the walled garden model given the potential for significant and serious ramifications for Sony, Nintendo and Microsoft and their video game platforms.

The judge correctly points out that the outcome of this case will affect all manufacturers of walled garden devices, not just Apple. The fact that gaming consoles are sold at a loss but iPhones are not is entirely irrelevant for antitrust purposes.

> The IAP system does not appear to be a payment processor in the same way that Visa, Mastercard, or PayPal is a payment processor; it is more akin to a link back to the App Store whereby the transaction must occur within the digital confines of the App Store. The IAP system appears to have been created, in part, to capture the value of a developer being on the digital shelf of the App Store which is owed to Apple—either on the initial download, or in subsequent IAPs.

Here the judge rejects Epic's framing that the IAP system is a mere payment processing system, as opposed to the (deferred) cost of distributing apps to iOS devices.

> Finally, the Court finds that the balance of equities weighs toward Apple where Epic Games breached both its agreements and the guidelines, and an injunction would potentially incentivize similar breaches among developers. Epic Games does not dispute that it breached its agreements. Nor is a breach required to maintain or even commence this lawsuit as reflected by the fact that the named plaintiffs in Cameron did not breach their agreements. As explained herein, Epic Games can similarly proceed. The Court declines to incentivize breaches of contracts where the legality of those provisions has not yet been conclusively or presumptively determined to be illegal.

I've seen many people claim that Epic's breach was necessary in order to have standing to bring the lawsuit in the first place. The judge explicitly states here that the breach was not necessary, and in fact there is another lawsuit that is still ongoing where the plaintiffs have not breached their agreement.