While Apple and Fortnite's big, dramatic lawsuit didn't seem to reach the conclusion either party actually wanted, its resolution offered some hope for Fortnite lovers that the title could be finding its way back to the App Store and onto their Apple devices.
And yet... It seems that legalese will once again get in the way of the battle royale. In a tweet thread today from Epic Games CEO Tim Sweeney, communications between him and Apple's legal team seem to cement that Apple has no interest in bringing Fortnite back while Epic continues to appeal the court's recent decision, a process Sweeney estimates could keep Fortnite out of the App Store for another five years or more.
Apple lied. Apple spent a year telling the world, the court, and the press they’d "welcome Epic’s return to the App Store if they agree to play by the same rules as everyone else". Epic agreed, and now Apple has reneged in another abuse of its monopoly power over a billion users.
— Tim Sweeney (@TimSweeneyEpic) September 22, 2021
Sweeney shared an email sent by himself to Apple's Phil Schiller and a terse reply from Apple's legal team, which detailed that "Apple has exercised its discretion not to reinstate Epic's developer program account at this time. Furthermore, Apple will not consider any further requests for reinstatement until the district court's judgment becomes final and nonappealable."
Here's the full text of the email:
I am responding to your recent request that Apple reinstate Epic's developer program account, which was terminated for cause last year. Epic committed an intentional breach of contract, and breach of trust, by concealing code from Apple and making related misrepresentations and omissions. In its decision, the court recognized that "Apple had contractual rights to act as it did. It merely enforced those rights as [Epic's] own internal documents show Epic Games expected." ECF No. 812 at 178-79. The court further found that "Apple's termination of the [Developer Program License Agreement] and the related agreements between Epic Games and Apple was valid, lawful, and enforceable." Id. at 179. Following that decision, Mr. Sweeney has publicly said that Epic "[wouldn't trade [an alternative payment system] away to get Fortnite back on iOS." In light of this and other statements since the court's decision, coupled with Epic's duplicitous conduct in the past, Apple has exercised its discretion not to reinstate Epic's developer program account at this time. Furthermore, Apple will not consider any further requests for reinstatement until the district court's judgment becomes final and nonappealable.
/s/ Mark A. Perry
The courts ruled in their decision earlier this month that Apple was "not in violation of antitrust law," that Epic Games had to repay Apple the lost App Store fees, and -- most interestingly -- that Apple could not continue to block alternative forms of payment inside the App Store. The decision greatly complicates Apple's App Store economics, but Apple still did not appeal the court's decision, framing it as an overwhelming win for the company overall. Epic Games was less satisfied, appealing the decision and pledging to "fight on."
In a press call with reporters immediately following the ruling, Apple indicated they would welcome Fortnite back if Epic Games agreed to follow the same rules as every other developer on the App Store -- though this statement was notably made ahead of Epic's official appeal of the court's decision.
In a tweet further down in his thread, Sweeney called Apple's refused reinstatement of Fortnite's developer account, "another extraordinary anticompetitive move by Apple, demonstrating their power to reshape markets and choose winners and losers."
We've reached out to Apple for comment.