In Epic Games-Apple Legal Fight Judge ‘Inclined’ to Provide TRO for Unreal Engine, but not Fortnite

In a hearing held over Zoom Monday afternoon U.S. District Judge Yvonne Gonzalez Rogers grilled attorneys for Apple and Epic Games as the Fortnite and Unreal Engine maker seeks a temporary restraining order to keep Apple from removing its Developer Program certification. 

The hearing is the result of filing by Epic on Aug. 13 seeking a TRO after Apple informed the developer that it would lose its developer program certification. Epic develops the Unreal Engine, which is used in countless iOS and Android games such as PUBG MOBILE. Losing this certification on the App Store would make it so that Epic could not deploy updates to licensees.

The Zoom call for the hearing had a limit of 500 users, but journalist Sarah Jeong offered an extensive blow-by-blow of the proceedings on social media. Many tried to stream the hearing on various streaming platforms but were unceremoniously ejected as the court enforced its policy of “no video” during hearings.

Attorney Richard J. Doren of law firm Gibson, Dunn & Crutcher represented Apple during the majority of hearing, while attorney Katherine B. Forrest of Cravath, Swaine & Moore argued on behalf of Epic.

In regards to granting a TRO, Rogers said that she was inclined to provide relief for Unreal Engine, but not Fortnite.

“I am not inclined to grant relief with respect to the games, but I am inclined to grant relief with respect to Unreal Engine,” she said.

Forrest tried to argue that those two things were “all part of the same ‘integrated’ retaliatory package.”

Earlier in the preceding Rogers pointed out that Epic could cure its situation simply by removing the hotfix that caused the initial problem. This was a point Doren touched on in his argument: “Let me take it back to first principles. All Epic needs to do is to put a compliant version of Fortnite back on the App Store,” he said. 

Doren also tried to argue that the contracts related to Epic and Unreal Engine were the same thing: “Epic Games International S.a.r.l. is Epic Games, it’s Unreal Engine,” he said.

Forrest countered that while these Epic entities might be related they hold separate contracts:

“We’re not saying SARL is not affiliated with Epic Games,” Forrest said. “What we’re saying is they’ve reached out beyond the contracts and the accounts….. where the in-app purchasing conflict occurred. … These are independent contracts. This is purely a pressure tactic.”

There were several times throughout the hearing where attorneys for both companies donned the dramatis personae of prophets predicting doom and destruction for their respective clients.

Forrest:  “The Unreal Engine will be destroyed… app developers need the ability for their app to be deployed on multiple platforms. If Epic cannot offer that with the Unreal Engine, the Unreal Engine will cease to exist. … Developers are fleeing the Unreal Engine now.”

Doren said that if Apple is forced to maintain Unreal Engine, Epic’s conduct “would spread like a virus.” 

After all the arguments were heard Rogers set a preliminary injunction hearing for Sept. 28 and said that a written order on the TRO would be coming “shortly.” 

 

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