Epic goes to court to force Fortnite back on US iOS

After last month's bombshell legal ruling forcing Apple to allow the use of external payment processors for in-app purchases on iOS, Epic CEO and founder Tim Sweeney said Epic Games was "going to do everything we can to bring Fortnite back to the iOS App Store." That "everything" now includes a legal motion in the District Court of California seeking to force Apple to "accept any compliant version of Fortnite onto the US storefront of the App Store."

Apple removed Fortnite from the App Store and terminated Epic's US App Store account in August 2020 after Epic snuck its famous Epic Direct Payments "hotfix" into the game (thereby setting off a yearslong legal battle). On May 9, though, Epic used an iOS account for its Swedish subsidiary—which was recently used to take advantage of Europe's DMA policies—to submit a new version of Fortnite to the US App Store.

Apple formally rejected that submission on May 15, saying in a letter shared by Epic that it believes the recent court rulings "do not diminish Apple’s bases and legal right to have terminated Epic Games’ [iOS developer account]." Even under that new ruling, Apple notes, the 2020 "hotfix" allowing Epic Direct Payments inside the app rather than via an external storefront would still violate Apple's current lawful restrictions on such practices.

"Apple has determined not to take action on the Fortnite app submission until after the Ninth Circuit rules on our pending request for a partial stay of the new injunction," the company wrote in its letter.

Two smartphones showing nearly identical images are side-by-side. — Apple says the top example here is and was lawfully prohibited by its iOS developer agreement and is the reason Epic is still banned from the US App Store.

In the meantime, Apple suggested that the Swedish Epic Games account should submit a separate updated version of the game—without a US App Store listing request—to prevent this situation from "impacting Fortnite in other geographies." But in a social media post, Epic said the suggestion to submit different versions of the game for different markets is "in violation of [Apple's] guideline that developers shouldn’t submit multiple versions of the same app." As such, Epic said Apple is effectively "blocking us from releasing our update in the EU and US."

Tell it to the judge

In an attempt to force Apple's hand, Epic filed a motion on Friday arguing that Apple's latest Fortnite denial is "blatant retaliation" for Epic's court challenge and an attempt to "circumvent this Court's Injunctions and this Court's authority."

Epic says the iOS version of Fortnite it recently submitted complies with all Apple policies and court rulings by offering a link to the external Epic Games Store for purchases. Through that link, players would be able to take advantage of a 20 percent discount on purchases compared to in-app purchases through iOS itself.

"Although Apple’s contracts may permit it to reject an app for lawful reasons, the Injunction provides that Apple may no longer reject an app—including Fortnite—because its developer chooses to include an external purchase link," Epic wrote. "Likewise, if the Injunction is to have any teeth, Apple cannot reject an app on the ground that its developer has sought to enforce the Injunction’s prohibitions."

Elsewhere in the filing, Epic says it is being "punished" by Apple after a nearly five-year legal battle and is being denied the ability to "take advantage of the pro-competitive rules it helped usher in." Epic argues that Apple "cannot reject any developer (including Epic) because they went to court to enforce the Injunction" and "cannot refuse to deal with Epic as retaliation for Epic’s decision to avail itself of this Court’s Injunction."

The matter will now be taken up by Judge Yvonne Gonzalez Rogers, who has shown little love for Apple in recent weeks. In her April order, she took the company to task for its "clear and convincing violation" of her initial injunction and even made a criminal contempt referral for Apple executives who she said "outright lied under oath."

"Apple’s continued attempts to interfere with competition will not be tolerated," Gonzalez Rogers wrote at the time. "This is an injunction, not a negotiation. There are no do-overs once a party willfully disregards a court order. Time is of the essence. The Court will not tolerate further delays."