Apple Tried To Kill Epic’s Australian Fortnite Lawsuit This Week

Apple Tried To Kill Epic’s Australian Fortnite Lawsuit This Week
Image: Epic Games
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Remember that time Epic effectively dropped a bombshell in the middle of COVID and got Fortnite yeeted entirely off the Apple ecosystem? That lawsuit picked back up again today, with both parties battling it out to decide whether Epic’s Australian case should continue.

It all played out in the extremely cold and gray environment of Sydney’s Federal Court, where Apple and Epic went toe to toe in their first proper Australian hearing. There has been some local legal stoushes between the two earlier, but it’s mostly been restricted to case management hearings and spats over producing documents, like Epic demanding Apple reveal how many Australian users it has and how much money its made from Aussies in microtransactions.

Yesterday, however, set the stage for whether Epic and Apple’s Australian stoush would continue at all. Apple applied last year for a permanent stay on Epic’s Australian suit, arguing in the Federal Court that Epic had agreed as recently as June last year to terms that included an exclusive jurisdiction clause. That developer agreement limits any legal cases against Apple to the Northern District of California’s U.S. District Court, the California Superior Court for Santa Clara County and the Santa Clara County Municipal Court.

The cornerstone of Apple’s argument against the Australian case hinged on a few key points: That Epic was a “goliath” in their own right and fully capable of litigating in California; that both Apple and Epic agreed to have the case tried in California under the terms of their contractual agreements; the Australian case would have “very substantial overlap” with proceedings in the United States, and multiple cases in multiple countries could result in contradictory findings that would become oppressive on Apple’s part; and, most crucially, that the Australian Consumer Law does not explicitly cover exclusive jurisdictions.

It was also revealed during the hearing that Epic sent an email to Apple on June 30, 2020, asking for Apple’s permission to establish their own app store on iOS or their own in-app payments system within Fortnite. “Please confirm in two weeks if Apple agrees to allow Epic to provide a competing app store or a competing payment system,” Epic CEO Tim Sweeney said, according to an email which was partially read out in court.

That same email also included a reference to Android customers, which Justice Perram — who is also overseeing Epic’s lawsuit against Google in Australia — suggested was a “form letter gone astray”.

Interestingly, Apple’s legal representatives claimed Epic “unilaterally withdrew” Fortnite from MacOS users after it was pulled from iPhones and iPads, even though MacOS market is not governed by the same restrictions.

The interlocutory hearing also saw both parties spar over whether details of Apple’s business in Australia, including the size of Apple’s user and developer base locally, would be entered into evidence. Justice Perram, who is also overseeing Epic’s lawsuit against Google in Australia, opted to submit the evidence, albeit subject to an interim confidentiality order.

The case continues.


  • I’m cautiously hopeful here that Australia won’t balls this one up, given that it’s the courts involved in this case and not the politicians.

    Anything that leaves more cash in the pockets of people who actually develop apps instead of just funnelling buckets of cash to rent seeking do nothing monopolists has got to be a good thing.

    • Bit of a narrow view.
      I have no love for Apple either and think Epics choice to take a smaller cut than others is fantastic but Epic seems more concerned with marketing their case rather than proving it.

      • So mine is a ‘narrow’ view, but all I’m seeing from you is some light cynicism about Epic’s motives which is, frankly, completely irrelevant.

        I mean, who seriously cares about Epic’s motives if the end result is that the market is opened up to third part app stores and third party payment options where, either way, devs end up with more money in their pockets.

        This isn’t some weird-arse corporate morality test where a company doing things partially out of self-interest can’t possibly be given any credit for doing something good simply because its motivates aren’t pure and altruistic enough for some people.

        • No offence dude but what would you call a view that only focuses on a very limited part of a much larger issue?
          As for my comment, I’m sorry but it has nothing to do with motive at all, Epics PR campaign is well established and proving Apples fees and payment restrictions are anticompetitive is about as relevant as you can get considering that’s the entire argument.

          Don’t assume I have a horse in this race just because you do my friend.

  • The Australian Consumer Law part is interesting. The implications are significant. If the justice finds for Apple then it’s a loophole that could undermine ACL everywhere via contracts between third parties. The ACL provides consumers rights that can’t be waived. Apple can’t for example do business in Australia and then say “sorry we are Californian, because you consumers accepted a new terms and conditions”. What I don’t know is whether this will extend to non-consumers in contracts.

  • The Australian court system generally isn’t the type to let court cases go overseas if it feels it’s against the public interest (unofficially). They’ll invent some bullshit to keep a precedent local if it’s a strange case and Epic being so stupid with their marketplace withdrawals is the court system’s favourite type of dumb legal problem.

  • The biggest thing is this is a civil case and doesn’t involve the ACCC, it’s just involving two American companies. Epic is the consumer in this case, not you me or the Australian children playing fortnite.

    Apples biggest hurdle is they have history with the Federal Court of misinterpretation of ACL and making their own rules.

  • Much like Epic is settling with their customers with Vbucks, I hope if Epic is successful, Apple will settle with iTunes cards.

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