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Comment by Jensson | Hacker News Reader

> Epic will resubmit Fortnite to the App Store if you adhere to the plain language of the court order and allow apps to include buttons and external links that direct customers to other purchasing mechanisms without onerous terms or impediments to a good user experience.

That seems very reasonable, why wouldn't Apple be forced to comply with the court order?

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Apple is complying with court rulings, including the judgment that Apple's contract with Epic is valid and enforceable. Apple could hypothetically ban all of Epic's accounts forever, but only the Fortnite account is banned. This appears to be a win for... payment vendors.

At this point Epic can only hope for legislative action.

Also on the "reasonableness" of Epic's promises... I'm not sure why making a pinky promise in a non-legal setting is any more serious than a legal contract they already choose to break.

In reality, though, Apple would be throwing half of their game developers under the bus if they disable the Unreal Engine account. So if Epic can bait them to do that, they'll have plenty of frustrated developers to push public anti-Apple sentiment.

As long as those developers can still test their games on the platform, there will only be anti-Epic sentiment. Every game developer using the Unreal Engine is seeing this play out just like we are and they're seeing that it's Epic's actions that are causing that issue. With the state of game engines today, many may even consider moving away from Unreal for future games specifically because of Epic's actions.

I've been involved with a few game projects and their developers. In general, everyone likes dealing with Epic because you can reach the actual developers quickly and they'll provide timely bug-fixes. Also, they are famously laid-back while your revenue is <$1 mio per game .. so most Indie developers experience them more as a charity than as a business.

Apple, on the other hand, is widely known as arbitrary, both on technical things and on what content or what games are allowed.

So if you tell a random game developer that Apple and Epic are fighting, most people will assume that it's Apple's fault because Epic has built up a lot of goodwill in that community.

We don't need assumptions. We have actual evidence that everyone can see. Epic started this fight and lost.

> Also on the "reasonableness" of Epic's promises... I'm not sure why making a pinky promise in a non-legal setting is any more serious than a legal contract they already choose to break.

Apple said they would reinstate Epic based on a pinky promise, they just wanted more in the promise they didn't question the promise itself. Pinky promises are absolutely a thing, not sure why you are ridiculing that part here.

Legal contracts are also a thing? In terms of seriousness, if you're willing to violate legal contracts, then what is the value of a pinky promise? The value of any promise is the sum of your credibility.

Well, violating the legal contract is just a cost of doing business, that’s why Epic shrugs and pays 6M.

I’d argue that the pinky promise means more.

What is a contract if not a slightly more legally binding pinky promise?

Something prone to procedural weaponization in the sense that strategic refusal to even consider redlined terms (the entire point of meeting of the minds) is rife.

I'd like to direct your attention to every piece of software's license agreement to which the answer to "decline" or "disagree" is to cease execution. Not to figure out what the person is actually okay with, and modifying execution from there.

Network effects are explicitly exploited (see "economies of scale") to lock in what the provider specifically wants. Hence why FLOSS is so important for it's role of providing BATNA.

>Apple could hypothetically ban all of Epic's accounts forever

Is this mere conjecture or is it founded on what was said in the court's opinion?

Court's opinion was the Apple has the right to enforce it's contract and ban Epic's developer account.

>Apple could hypothetically ban all of Epic's accounts forever

That is just plain wrong. There's no difference in Apple banning all Epic accounts over this and Apple Banning Microsoft or you for what Epic did. Epic is not one company, each account is a different business. Banning different companies in different countries and continents because of a brand name would get Apple sued into oblivion and would likely be the nail in the coffin for a closed app store.

> (2) a declaration that (i) Apple’s termination of the DPLA and the related agreements between Epic Games and Apple was valid, lawful, and enforceable, and (ii) Apple has the contractual right to terminate its DPLA with any or all of Epic Games’ wholly owned subsidiaries, affiliates, and/or other entities under Epic Games’ control at any time and at Apple’s sole discretion.

Why do you think this is plain wrong?

As you might recall - Apple did retaliate previously by also banning an associated Epic Account (for Unreal Engine and such) but was later legally forced not to [1]

1: https://www.theverge.com/2020/10/9/21492334/epic-fortnite-ap...

That was a temporary restraining order [1] and later certified in a preliminary injunction [2], which is what occurs before a trial in order to best preserve the pre-trial status quo and protect parties from harm pending trial.

You will note that the preliminary injunction vacates the temporary restraining order and notes that it will "remain in force until the disposition of this case". The case has been disposed. The final ruling explicitly allows "Apple has the contractual right to terminate its DPLA with any or all of Epic Games’ wholly owned subsidiaries, affiliates, and/or other entities under Epic Games’ control at any time and at Apple’s sole discretion."

I seriously recommend not relying on blog analysis of a court case and instead reading the court documents, and if you are unable to do so (understandable!) to avoid participating in the conversation in the manner of correcting someone.

1: https://storage.courtlistener.com/recap/gov.uscourts.cand.36...

2: https://storage.courtlistener.com/recap/gov.uscourts.cand.36...

Close, but since epic appealed, it is not disposed yet - it will become final once all appeals are exhausted

edit: I am not the original GP who said it's plain wrong - perhaps I should lead with that

---

I really appreciate your analysis. Perhaps my comment was unclear, but it was in reference to the GP asking

> Why do you think this is plain wrong?

Since from my understanding the injunction should still be in effect (as mentioned by another commenter). Of course with the added disclaimer that I am not a corporate lawyer.

> I seriously recommend not relying on blog analysis of a court case and instead reading the court documents, and if you are unable to do so (understandable!) to avoid participating in the conversation in the manner of correcting someone.

I appreciate your candor - while I may exhibit elements of imposter syndrome, I believe I didn't add noise to the SNR of this post since it was my intention to expand on the aformentioned GP's question.

… in a preliminary injunction that "[...] will remain in force until the disposition of this case" (pg 38, bottom), so once the appeals process has run its course, Apple is no longer bound by this.

https://cdn.vox-cdn.com/uploads/chorus_asset/file/21949772/g...

That said, Epic could always try to get a further injunction on this, and I don't really see an upside for Apple from banning further accounts.

I appreciate this - I should have expanded on my original post with the appeals disclaimer to clarify.

But wasn't Epic banned just because they broke that rule the court now ordered Apple not to enforce? Isn't it strange that this lawsuit would result in Apple now being able to enforce that rule only for Epic and they aren't allowed to enforce it for anyone else? Is that how it is supposed to work?

No, Epic directly offered in-game payment options for the Epic currency. The judge ordered Apple to allow in-game links to online purchase options, not to directly allow in-app purchases from 3rd parties.

> Is that how it is supposed to work?

Yup, the judge ordered Epic to pay some millions to Apple in damages.

So it said something like, Epic was wrong to do what they did and did break their contract, but also said from now on that Apple can't prevent devs from steering customers to outside the App Store payments.

It certainly could be interpreted as contempt of court but in practice Apple has hundreds of vague rules in their developer policies and they use them on a daily basis to block apps or updates just because they feel like it. They would have no difficulty constructing a retroactive excuse for banning Epic (and all their customers, as they threatened previously) from the store.

> why wouldn't Apple be forced to comply with the court order?

They seem to be waiting until all appeals have finished:

"Apple will not consider any further requests for reinstatement until the district court's judgement becomes final and nonappealable."

https://twitter.com/TimSweeneyEpic/status/144071177248318669...

Effectively telling Epic that if they are serious about this issue, they need to batten down for a multi-year court battle and give up selling games in the meantime.

I guess it has to do with the fact that Epic has appealed the court verdict. I can understand that Apple doesn’t feel like doing business with someone who has an active legal case against them.

That makes sense, thanks! The dispute isn't resolved yet, easy to understand. I assume if Epic accepted the court ruling then Apple would be forced to comply?

I am not sure they can be forced to comply (if I remember correctly this particular court decision mentioned that Apple was within their right for terminating Epic’s account), but that’s just half of the story. It is true that Apple has promised to reinstate Epic once they agree to follow their rules. What I find really disingenuous about all this is Tim Sweeney‘s attitude - he appeals the decision while at the same time publicly blaming Apple for not following up on their part of the bargain. It’s just embarrassing at this point.

Apple would be forced to comply with the court ruling, which does not require Apple to reinstate Epic's account and allow Fortnite back on the App Store.

A short summary of the ruling is that Apple has no ‘duty to deal’ with Epic (you can’t force someone to do business with someone), so they can let them in when they want.

If Epic did not appeal, and submitted a version of fortnight that complied with App Store requirements I think they would be in the store rn.

Apple is complying with the court order (so far as we can currently tell). Not reinstating Epic’s developer account is a separate issue. It was explicitly stated in the court order that Apple was allowed to terminate Epic’s account and it was solely up to them if they wanted to reinstate it.

Opening the payment mechanisms for other developers is a separate issue to whether or not Epic could still sell iOS apps on the AppStore.

It is very self-serving of Epic to offer Apple a legal interpretation of the court's decision free of charge, that delivers Epic all benefits it failed to receive in the court decision. Apple is, however, free to disregard Epic's input on interpretation, no matter how plausible Epic's phrasing may sound to others. Apple is not forced to comply with Epic's interpretation of the court order — Apple is forced to comply with Apple's interpretation of the court order, and has another ~10 weeks to decide how they will choose to comply with the order, assuming that it isn't suspended during the appeals process. If a court later decides that Apple has not complied, then Apple will be answerable to the court, not to Epic, for their interpretations.

Epic is appealing the decision. Sweeney is promising to follow the rules but is also trying to take Apple down. Definitely duplicitous. Apple does not have to let Epic back in.

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