The Epic-created Fortnite remains off the app store. Adding insult to injury, it was forced to pay millions of dollars for a breach of contract claim brought by Apple, and its Apple developer account was not reinstated. Nonetheless.) Epic lost on all the federal antitrust claims, prevailing only on a claim under California unfair competition law. (In antitrust just giving people information can be called “steering.” It seems odd to refer to consumers choosing to save money as being “steered,” as if they have no agency in the matter. It’s understandable why Epic would not be happy: It did not get the broad, structural relief it wanted - just a targeted injunction blocking the App Store’s “anti-steering” rules, which prevented developers from communicating with users within their own app, or even via email if that address was collected in the app, about ways they can save money on in-app purchases. At the same time, though, Epic - even though it won an injunction that (assuming it goes into effect) will force Apple to make a significant, pro-competitive change to its App Store practices - is not happy with the decision, and has already appealed. It falls well short of bringing about the broader changes that are necessary to make sure that app stores are not competitive and free expression bottlenecks. Apple trial is good for developers and users. Last week, a California judge ruled partly in Epic’s favor. The Epic lawsuit is a marathon, not a sprint, so Epic has plenty of time to set things right.Last year, Epic Games sued Apple, arguing - among other things -that its restrictions on app store payments for digital goods were anticompetitive. However, if Epic wants to maximize its chance for success, its first step should be to rebuild its credibility. Apple coming out ahead in this initial heat will hold no bearing on the overall outcome of the case. In other words, Epic Games lost not because it was wrong, but because it has not yet proven it is right. This is not to say the case is over - the court noted several times that the case is in its early stages, that its findings are preliminary, and that its decision was based on the lack of a factual record. Indeed, there is even a strong argument to be had that the court’s decision to deny Epic its preliminary injunction was the direct result of Epic’s lack of credibility, since it supported the court’s conclusion that the harm Epic suffers “is of its own choosing.” Epic Games v. The fact that the court opted to do so here means that it will be much harder for Epic Games to succeed. Judges rarely question the credibility of attorneys in written decisions, and they do so even less frequently at such an early stage. In the abstract, these admonishments might not seem like much, but in the context of ongoing litigation, this is huge. But looking past the obvious, there is one aspect of the opinion that has been overlooked by other commentators - and that has significant implications for the case as it goes forward. At the most basic level, the case was a loss for Epic - the court questioned the viability of its claims and denied Epic’s request for judicial intervention. The court concluded that Epic failed to show that it was likely to succeed at trial and also failed to show that it would suffer any “irreparable harm” (i.e., it concluded that if Apple lost, Apple could pay Epic to account for any damage caused in the interim). The decision itself is straightforward and actually a pretty interesting read - even for non-lawyers. Last week, the court issued a 39-page decision denying that request. Because the case won’t go to trial until next spring (at the earliest), Epic Games asked the court to require Apple to return Fortnite to the App Store for the eight or more months between now and then.
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