In the Northern District of California, Epic Games just filed its reply brief in support of the Fortnite and Unreal Engine maker's motion for a temporary restraining order (TRO) against Apple (this post continues below the document):
Previously I reported on one of the three declarations Epic's lawyers submitted in support of that reply brief: the one by a Microsoft executive because it shows that the Windows, Office and Xbox company is backing Epic against Apple.
Epic's reply brief completely fails to address the legally most powerful part of Apple's opposition to the TRO motion: that Epic brought this situation upon itself, and "self-inflicted wounds" can't give rise to the requested type of relief in the Ninth Circuit. While Epic described as a "hotfix" its tactic of firstly running a Fortnite version by Apple that already contained the code for an alternative payment system and later triggering the display of that option to end users by means of data the Fortnite app retrieved from Epic's servers, Apple's opposition brief said this breach of a longstanding App Store rule became Epic's "hot mess."
Epic's decision not to address the "self-inflicted wounds" part is consistent with my overall impression that they've already given up with respect to Fortnite--not formally in the sense of a partial withdrawal of the motion, but practically. They must have realized that Judge Yvonne Gonzalez Rogers is hardly going to force Apple to offer a Fortnite version via the App Store that clearly breaches Apple's terms. Instead, Epic's reply brief focuses on the Unreal Engine, arguing that even if Apple was in its right to terminate any Fortnite-specific Epic accounts, "the breadth of Apple's retaliation is itself an unlawful effort to maintain its monopoly and chill any action by others who might dare oppose Apple." By "breadth" Epic means that Apple terminated multiple accounts, and that there are two Epic legal entities: Epic Games, Inc. of Maryland and Epic Games International S.à.r.l. of Switzerland. However, Apple argues that all those Epic accounts are managed as one, and Apple generally terminates the contracts of affiliated entities when a major breach occurs.
I don't intend to analyze the contractual part in detail now: the court hearing will take place tomorrow (Monday, 3 PM Pacific Time). Even with respect to the Unreal Engine, I still can't see how Epic would prevail, given that it has a simple option: to comply with the existing agreements while challenging their terms in court.
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