Fortnite Dispute Between Apple and Epic Games Won't Have Jury Trial

[Art Mark]

Interesting. I am not sure why Epic chose this path. I would think, a jury would view a fairness argument more favorably than judges (and that's a GOOD THING).
This is not about "my store, my rules", as some fanboys here would make you believe.
It's a larger issue than that.

Well, what is the case about than? And if the case isn’t about the case, what case is it? I think perhaps Epic should have a real case in they want to have it adjudicated. I have to say I don’t know what the case is if this isn’t the case? And if there is a better case, why isn’t Epic bringing that ‘real’ case to court?

 

[Art Mark]

Can't wait for Apple's Marketing machine to turn this to their advantage with "Back to School - buy them a machine that doesn't allow Epic Games so they can't play Fortnite instead of studying"

3rd graders are already back in school. ... just saying. I’m not sure how big the game is with players over 13.

 

[ian87w]

The Epic Games situation, as summarized by Steve Jobs 10 years ago.

Yea, things would've been more colorful if Jobs was still around. He's less diplomatic about these things, and we would have had a keynote just for him roasting Epic/Spotify/Microsoft/Facebook, etc.

Not good for the board and lawyers, but entertainment for the rest of us.

 

[creediddy]

Bottom line is that Epic signed a contract with Apple and they must abide by it based on the iOS platform.

 

[mannyvel]

One interesting question for the lawyers here: could epic have disputed the contract terms in court without some kind of injury, like being shut out of the store? Usually you need some harm to have standing...so is there a way to get standing without violating the contact?

 

[j1huynh]

I went through all my games made by epic and delete them all.. epic failure.. done move on

 

[Gasu E.]

I tried to sell clothing in a department store years ago. They wanted me to pay for floor space, put all my stuff their on consignment, and then they were going to mark up 100%.
So I had to cover the cost of making the goods, getting them to the store etc, and they made a massive 100% mark up, where I had to cover the cost of goods sold in my share.
And this was to get product in 1 store.

It's not a strong analogy. You could have tried to sell your goods at another store, and potentially reached some of the same customers. But if you want to sell a software product to iPhones owners, there's only one store.

 

[cmaier]

I'm wondering why the court dates are like a few years out? Don't we have enough money to fund the courts? Don't they make money anyway? Why can't things happen faster? Court dates should happen the same week if both parties are ready.

Both parties aren’t ready. They won’t have completed document production until January. There need to be depositions, expert reports, motions for summary judgment, etc. It takes time. Plus there is a huge backup of criminal trials that can’t take place because of COVID, and accused criminals have a constitutional right to a speedy trial, so as the courts open up the criminal trials will go first.

 

[Gasu E.]

One interesting question for the lawyers here: could epic have disputed the contract terms in court without some kind of injury, like being shut out of the store? Usually you need some harm to have standing...so is there a way to get standing without violating the contact?

Epic could easily have claimed that their injury was overpaying on Apple's cut. They didn't need to get thrown out of the store. Getting thrown out doesn't help their case. I can only think they imagined that Fortnite users would rise up in anger against Apple. Clearly the overplayed their hand. Very people are not going to buy an iPhone because of Fortnite.

 

[cmaier]

It's not a strong analogy. You could have tried to sell your goods at another store, and potentially reached some of the same customers. But if you want to sell a software product to iPhones owners, there's only one store.

That’s like saying “bob only shops at walmart. If you want to sell your widget to bob, there’s only one store.”

Who says you have a fundamental right to sell to bob?

 

[cmaier]

One interesting question for the lawyers here: could epic have disputed the contract terms in court without some kind of injury, like being shut out of the store? Usually you need some harm to have standing...so is there a way to get standing without violating the contact?

Yes.

Rule 57. Declaratory Judgment

www.law.cornell.edu

 

[ilikewhey]

Epic dont know how good they had it.

I tried to sell clothing in a department store years ago. They wanted me to pay for floor space, put all my stuff their on consignment, and then they were going to mark up 100%.
So I had to cover the cost of making the goods, getting them to the store etc, and they made a massive 100% mark up, where I had to cover the cost of goods sold in my share.
And this was to get product in 1 store.

Epic can publish a game and get it in the hands of 1 billion people all over the world, all that distribution handled for them, selling across different currencies etc.

That would have been a dream for anyone only a few years ago.
I have zero sympathy for them.

and now you have the same platform on etsy or ebay or amazon. where you be charged around 10-15 percent fees

 

[cyb3rdud3]

Can't wait for Apple's Marketing machine to turn this to their advantage with "Back to School - buy them a machine that doesn't allow Epic Games so they can't play Fortnite instead of studying"

Couldn’t disagree more. That would be childish in the extreme, and stupid. Not a way grownups behave and definitely not something one should do during an active court case.

One interesting question for the lawyers here: could epic have disputed the contract terms in court without some kind of injury, like being shut out of the store? Usually you need some harm to have standing...so is there a way to get standing without violating the contact?

Yes there is, the judge even explained that to EPIC. EPIC refused, even when warned by apple what would happen, and after given sufficient time to rectify the situation. Contract disputes are entirely normal and are played out all the time. EPIC was just being childish and through their toys out of the playpen and even when invited back they stamped their feet and said no. Yet whilst blaming everyone else for it.

It's not a strong analogy. You could have tried to sell your goods at another store, and potentially reached some of the same customers. But if you want to sell a software product to iPhones owners, there's only one store.

That is simply not true. Remember the software is a free download. There are plenty of services where you can get the subscription elsewhere to activate in the app. For example take a look at Microsoft Office 365. You can have a different store. What you can’t do is be given a free space and then use that space to advertise to go to the different store and buy your vbucks there.
That is like getting a free concession in Harrods and use it to say don’t buy here, go to Selfridges as it will be cheaper.

Epic could easily have claimed that their injury was overpaying on Apple's cut. They didn't need to get thrown out of the store. Getting thrown out doesn't help their case. I can only think they imagined that Fortnite users would rise up in anger against Apple. Clearly the overplayed their hand. Very people are not going to buy an iPhone because of Fortnite.

They weren’t thrown out of the store. They took themselves out by not complying with the rules, and were given several opportunities and a generous amount of time and even advised by the judge that it is within their control. So no, they weren’t thrown out, they took themselves out.

 

[vjl323]

I'll be curious as to when Apple punishes/bans IFTTT, as they recently started doing the exact same thing that Epic did - using their own-in-app bill payment system, bypassing iTunes/iCloud payment.

 

[jinnj]

I am interested to see if the parties will put the funds in a trust if Fortnite is allowed to be on the App Store until a final decision

The judge denied Epic's request. The revenue of the app in the App Store is single digit percentage compare to the consoles and PC so Epic is not in "Emergency Mode".

 

[jinnj]

Can't wait for Apple's Marketing machine to turn this to their advantage with "Back to School - buy them a machine that doesn't allow Epic Games so they can't play Fortnite instead of studying"

Epic's competitors are doing them harm by buying Ads on the App Store (Front Page!) and every week it's been a different FPS/Battle Royale game. It was Butter Royale this week.

 

[jinnj]

I'll be curious as to when Apple punishes/bans IFTTT, as they recently started doing the exact same thing that Epic did - using their own-in-app bill payment system, bypassing iTunes/iCloud payment.

In the app or subscribing to IFTTT via the website (which lots of apps do... Spotify and Netflix)

 

[jinnj]

I agree with you but you’re missing the point. Epic KNOWS how good a deal it is. They just want to be the store-owner.

Correct it's not about the 30%. In the court filings, there is a request from Sweeney asking for OS Level access and allowing Epic to sell other dev's apps without needing Apple's approval.

 

[smetvid]

During Monday's hearing, the judge said that Epic was "not forthright" and had made a "calculated decision" to defy Apple's ‌App Store‌ rules. "There are people in the public who consider you guys heroes for what you did, but it's not honest," she said.

This right here is what fans of Epic need to realize. No matter how much you want Apple to lose on this they just will not. What Epic did was wrong. Some may want to consider them a Robin Hood kind of hero but at the end of the day what Epic did was a blatant contract violation and they are 100% in the wrong here.

The entire antitrust and anti competitive mantra some want to chant is only going to be taken up by Congress. Epic went about this in the wrong way. Since this also only really impacts software developers I doubt Congress is going to waste their time with it either. Especially during a pandemic and other more important tasks that actually impact more American people and consumers.

 

[jinnj]

One interesting question for the lawyers here: could epic have disputed the contract terms in court without some kind of injury, like being shut out of the store? Usually you need some harm to have standing...so is there a way to get standing without violating the contact?

The judge told them a few weeks ago to roll things back before they broke the contract and they can continue with the case.

 

[gnasher729]

I am interested to see if the parties will put the funds in a trust if Fortnite is allowed to be on the App Store until a final decision

Fortnite will not go back on the AppStore and epic won’t get its developer license back until a final decision. But since Epuc has plenty of money I don’t see any need for Epic to put money into escrow.

 

[gnasher729]

One interesting question for the lawyers here: could epic have disputed the contract terms in court without some kind of injury, like being shut out of the store? Usually you need some harm to have standing...so is there a way to get standing without violating the contact?

The claimed harm is 30% of in-app purchase revenue, so they definitely could have claimed that and taken it to court.

 

[Tech198]

"not honest" can be tested in several other ways. I mean anti-competiive to the whole "no one else charges 30%" do-hickey.

 

[Waragainstsleep]

This is a case which in my opinion a jury would screw up the fair verdict. This is a contractual dispute at the core. It is much better to be decided by a legal mind rather than a jury of non-legal minds.

I'd imagine so. Jury members are regular people afterall, and i'd say public opinion of apple is a lot more favourable than public opinion of epic games.

On the other hand, a judge should make a decision purely from a legal & technical viewpoints, their ability to disassociate their personal opinions about either company would be far better than that of the average jury member.

Interesting. I am not sure why Epic chose this path. I would think, a jury would view a fairness argument more favorably than judges (and that's a GOOD THING).

I'm surprised Epic don't favour a jury they can lie to and manipulate in the knowledge that Apple won't stoop to their level.

This is still going???

Have you never seen a first world justice system in "action"?

Well, what is the case about than? And if the case isn’t about the case, what case is it? I think perhaps Epic should have a real case in they want to have it adjudicated. I have to say I don’t know what the case is if this isn’t the case? And if there is a better case, why isn’t Epic bringing that ‘real’ case to court?

Its not a contract dispute at all. If it were (or if it eventually comes down to one) Epic don't have a leg to stand on. They signed up happily, profited massively, and breached the terms deliberately and knowingly and in bad faith before launching a suit based on greed hidden by lies.

What it is is an antitrust issue. Is it a monopoly, are Apple acting unfairly towards developers or more importantly consumers. Ultimately that comes down to a matter of opinion. Whether you can isolate two equivalent platforms as distinct populations for the purposes of antitrust protection.
Personally, if people think Apple's system is unfair or doesn't suit them, they can go to Android and side load apps so theres no monopoly.

Thank you, Epic! for fighting the fight for all. You will be acknowledged later regardless of the outcome.

No “safety and privacy” bsh*t can cover the unfairness of the AppStore’s policies.

Theres always one.

And? Actually you’re talking about market places. Like Walmart. And Walmart even tells manufacturers things like “If you want this in our store we will pay X for it. Make X work for us or we don’t carry it”. This may not be nice, but it is not illegal.

It's not a strong analogy. You could have tried to sell your goods at another store, and potentially reached some of the same customers. But if you want to sell a software product to iPhones owners, there's only one store.

That’s like saying “bob only shops at walmart. If you want to sell your widget to bob, there’s only one store.”

Who says you have a fundamental right to sell to bob?

Ultimately I don't see Epic can possibly win this case. Like you say, a consumer can always ditch their iPhone and buy Android. They are also free to have one (or more) of each. More practically, they can have an iPhone and an Android tablet to play games on should they wish.

A good analogy would be Target suing Walmart because Walmart customers can't buy Target products inside a Walmart and its not fair because Walmart customers are loyal due to their cheap prices. After Walmart had allowed Target to sell in their stores if they paid 30% to Walmart without putting their prices up to cover it.

The more I think about it, no sane judge could rule in Epic's favour here.

 

[scaramoosh]

I support Epic in trying to change the industry, but what did they expect to happen? What Epic needed to do was say "We're pulling Fortnite from IOS" and make a big song and dance of it, while pointing people to a competitor.