★ Apple Will Not Reinstate Epic’s Fortnite Developer Account, but Epic’s Other Developer Accounts Remain Active

Tim Sweeney, today on Twitter:

Late last night, Apple informed Epic that Fortnite will be
blacklisted from the Apple ecosystem until the exhaustion of all
court appeals, which could be as long as a 5-year process.

Sweeney posted a letter from Apple’s attorneys to Epic’s. It reads:

September 21, 2021

VIA ELECTRONIC MAIL

Gary Bornstein
Cravath, Swaine & Moore LLP
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019-7475

Re: Developer Program Account No. 8XJ6WJ8Z84

Dear Gary,

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
“[w]ouldn’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.

Sincerely,

/s/ Mark A. Perry
Mark A. Perry

That’s lawyer-speak, I believe, for “go fuck yourselves”.¹

Sweeney is crying foul, arguing that this contradicts Apple’s repeated public statements that Fortnite would be welcomed back to the App Store if they came into full compliance with App Store rules. Here’s a version of Apple’s statement from two weeks ago, via Protocol:

“As we’ve said all along, we would welcome Epic’s return to the
App Store if they agree to play by the same rules as everyone
else. Epic has admitted to breach of contract and as of now,
there’s no legitimate basis for the reinstatement of their
developer account.”

Apple’s lawyers’ characterization of Sweeney’s statement about being unwilling to trade something away “to get Fortnite back on iOS” does seem like a bit of a hatchet-job, quote-editing-wise. Sweeney tweeted the following on September 11, one day after the Epic-v.-Apple decision was delivered:

Thinking much more about whether we’re going to live in a world
where two platform megacorps dictate software and world commerce
to everyone or whether the digital world and the future metaverse
will be a free world. Wouldn’t trade that away to get Fortnite
back on iOS.

That doesn’t sound like the words of a man poised to comply with the App Store rules around in-app purchases. But, it doesn’t mean Epic wasn’t going to submit a Fortnite build that fully complies with the rules, either. Really does seem like Sweeney just thinking out loud in a tweet.

Sweeney also tweeted an email he sent to Phil Schiller on September 16. It reads:

From: Tim Sweeney
Date: Thu, Sep 16, 2021 at 5:01 PM
Subject: Fortnite and the App Store
To: Phil Schiller

Hi Phil,

I’m writing to provide clarity on where we stand.

Epic has appealed the court’s decision in our suit over Apple’s
policies on In-App Purchase and competing stores. Though we can’t
update the Fortnite version that users still have on their iOS
devices, we’ve disabled Epic payments server-side, and have paid
Apple $6,000,000 as ordered by the court.

Epic has asked Apple to reactivate our Fortnite development
account. Epic promises that it will adhere to Apple’s guidelines
whenever and wherever we release products on Apple platforms.
If we get the account back, we’ll bring Fortnite back to Mac as
soon as possible, and we’ll reincorporate Fortnite for iOS in our
Unreal Engine development and testing process, which will benefit
all of our mutual developers.

Whether Epic chooses to bring Fortnite back to iOS consumers
depends on whether and where Apple updates its guidelines to
provide for a level playing field between Apple In-App Purchase
and other methods of payment.

Epic will resubmit Fortnite to the App Store if you adhere to the
plain language of the court order and allow apps to include
buttons and external links that direct customers to other
purchasing mechanisms without onerous terms or impediments to a
good user experience. In that case, our remaining dispute will be
about competing stores, and I genuinely believe we could find
common ground on the topic if Apple’s position were based solely
on user security and privacy rather than commercial interests.

As a provider of developer tools, Epic continues to support Apple
platforms and our mutual developers wholeheartedly.

If you have any questions or thoughts, I’m happy to talk.

Tim Sweeney
Epic Games

A few comments:

Epic promises that it will adhere to Apple’s guidelines whenever
and wherever we release products on Apple platforms.

Epic, of course, had previously promised the same thing, in a legally binding fashion, when they agreed to Apple’s developer account terms and conditions. But agreeing not to break Apple’s guidelines again seems in the spirit of what Apple had been asking for, regarding reinstating Fortnite.

Epic will resubmit Fortnite to the App Store if you adhere to the
plain language of the court order and allow apps to include
buttons and external links that direct customers to other
purchasing mechanisms without onerous terms or impediments to a
good user experience.

Here’s where I think Sweeney garnered the legal “go fuck yourself”. Sweeney is arguing that Apple, which won the lawsuit, should interpret the court’s anti-steering injunction in a way that pleases Epic, which lost the lawsuit. That’s not how things work.

In that case, our remaining dispute will be about competing
stores, and I genuinely believe we could find common ground on the
topic if Apple’s position were based solely on user security and
privacy rather than commercial interests.

Tim Sweeney is high as a kite.

So here’s the thing to keep in mind, and that I think Sweeney purposefully muddled in the way he announced this news: Epic is a conglomerate with multiple subsidiaries, and those subsidiaries have their own Apple Developer Program accounts. The only developer account Apple ever disabled in this dispute was the one held by Epic Games, Inc. — the Fortnite account. It was disabled on 28 August, 2020 and has been disabled ever since.

Accounts that have never been disabled include the accounts for Rocket League (a game whose Mac support Epic discontinued in January 2020, exemplifying Epic’s “wholehearted” support for “Apple platforms”), and separately and importantly, Unreal Engine. It is true that Apple moved to block the Unreal Engine account back in August 2020, but Judge Yvonne Gonzalez Rogers ordered Apple not to pending a decision in the case, while allowing the Fortnite account to be blocked. In her ruling this month, however, Gonzalez Rogers stated that Apple would now be within its rights to disable any and all of Epic’s Apple developer accounts for breaching the license agreement. (See p. 179 of the ruling.)

My understanding is that none of those accounts are affected by Apple’s decision not to reinstate the Fortnite developer account. Those accounts have been operational throughout this legal dispute, and I believe will continue to be — by Apple’s choice.

Read more at Daring Fireball.