Judge ensures Epic’s Unreal Engine remains on Apple’s iOS while warning of ‘serious ramifications’ for consoles

    
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Judge ensures Epic’s Unreal Engine remains on Apple’s iOS while warning of ‘serious ramifications’ for consoles

While we still have a long way to go before the Epic Apple feud begins its bench trial, there’s been a couple of notable moves by Judge Yvonne Gonzales Rogers ahead of the official trial.

A preliminary injunction released on Friday has ensured that Epic Games’ developer account should stay in place, which includes Unreal Engine, effectively making the temporary access to Unreal Engine permanent. The game Fortnite itself, however, remains barred on the platform.

“Without the ability to update the underlying engine for these and other games, the gaming industry built upon developers and fervent consumers, including iOS consumers, will be unnecessarily impacted. Moreover, the need for increasing avenues for creativity and innovation has not abated since the prior order. If anything, the continued ongoing pandemic has demonstrated the imperative for substantial digital and virtual innovation,” reads part of the ruling. “Epic Games and Apple are at liberty to litigate this action for the future of the digital frontier, but their dispute should not create havoc to bystanders. Thus, the public interest weighs overwhelmingly in favor of Unreal Engine and the Epic Affiliates.”

In that same injunction, the judge also suggests that the ruling of this case could have “significant and serious ramifications for Sony, Nintendo and Microsoft and their video game platforms” as she finds that the companies in question “all operate similar walled gardens or closed platform models as Apple, whereby the hardware, operating system, digital marketplace, and IAPs are all exclusive to the platform owner.”

As a result, the judge has quashed Epic’s argument that the iOS platform is unique from other devices because home consoles and computers require electrical outlets and separate screens to be used, instead arguing that those devices have “significant overlap.”

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Rndomuser

It is a fair decision for Apple but it’s a shame that it did not progress further, where Apple would be forced to allow users to install third-party apps and games by downloading them from other sources and not from app store, same it works on Android phones now. That would actually be fair for both developers and consumers, the kind of people I care more about. Oh well, maybe some day it will happen. At least I don’t have to use any product by this extremely greedy corporation.

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silverlock

You must not have kids in school where Apple products are forced upon you.

O RA
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O RA

As an IT person I would rip that school a new.. yea. Whenever I hear of someone making the decision to use apple products in professional environments, I just know that they’ll expect the world and then blame everyone except apple when their products don’t integrate with anything.

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bobfish

The thing is, it won’t help developers. Android’s open platform doesn’t really help anyone other than phone couriers or manufacturers.

For example, Fortnite is/was available through Google Play, Samsung Store and direct from Epic. 90%+ of users/revenue was still coming from the Google Play store.

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Rndomuser

The thing is, it won’t help developers.

What you said is an irrational nonsense. Of course it will help developers – even if some people will download app directly from developer’s site and use a payment system inside the app which would bypass Apple/Google – it will already help developers earn a little bit more money, even if most of the money will come from a different version of app available at the Apple/Google app store. And even that little bit of money will absolutely matter to many developers, regardless of whether you personally consider it as insignificant.

Aside from money aspect, there are many other cases where it helps developers. For example, both Apple and Google do not allow apps with certain kind of sexual content or other kind of content, such as certain kind of violence (each has a list of what is not allowed), regardless of the type of monetization so if developer wants to include such content in an app – the only choice is to make app available to be downloaded from third-party website. In Apple’s case, there is no such choice at all.

Another example if, for example, a crazed dictator of some third-world country like China, Russia or USA will want to ban specific app from app store for various reasons (xenophobia, or to make simple-minded people believe that the dictator cares about their privacy, or because dictator is afraid certain app may be used to allow people to criticize the dictator and to organize anti-dictator meetings) – both Google and Apple will always comply with dictator’s demands for any app to be removed because they value income above all else and they won’t want for their app stores to be banned in whole country. And in such case the only option for developers to distribute such app and for users to download it would be from third-party sites. Which again, in case of Apple is not even an option.

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bobfish

Right, so how much of the PC market is Steam, versus Epic, versus direct to consumer? It’s still heavily dominated by Steam, and the PC market is brand/publisher aware, compared to the mobile market where most users don’t even know who publishes the game their playing.

Your points are only valid if the consumer makes the effort to seek out the store and download the game. There are many many benefits to going direct to consumer or having multiple stores available, but they are all entirely dependent on the consumer, the player, adopting those stores.

To date, on Android, which has been an open platform since it launched, 90% of consumers only use the Google Play store, even though other stores have ALWAYS been available.

You can call bullshit on what I write as much as you like, I’m merely stating how it currently is on Android. You should also note that Epic’s case against Google wasn’t to open the platform, it was to allow them to bypass the Google Play payment system with their own, whilst ALSO being on the Google Play store.

O RA
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O RA

Oh, not true, I use an alternative app store on android called F-Droid that has some of the best apps I’ve ever used. I had to download it as an open APK, there’s no version in the store. There’s actually more than a few apps I’ve had to circumvent the store to get.

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bobfish

Not sure how this makes my statement untrue. Epic said themselves that most of their players are on the Google Play version.

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O Ra

I was responding to:

Android’s open platform doesn’t really help anyone other than phone couriers or manufacturers.

(this is oruh btw, i must have logged in via twitter.)

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Blaaznar

I chose to pay a hefty price exactly for that walled garden and the closed off system – a large number of Apple users share the same sentiment and see this as one of the major selling points over alternatives.

Can’t talk about people that have no choice and have Apple forced upon them, but that’s not really the problem of Apple is it @bobfish?

O RA
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O RA

I hear “the walled garden” was foxconn’s nickname.

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Arktouros

I think Microsoft would still back Epic in this circumstances because they’ve taken an extreme shift away from hardware exclusivity and like Epic is trying to get themselves into a position where they can be on as many platforms as possible. Right now there’s Xbox and Windows and they’re moving towards xCloud as well to work on any device as well. So even if they lose potentially on the Xbox platform they stand to gain both the Nintendo and the Sony platforms. This also has the potential to destroy both the Sony and Nintendo models as both of those company’s business models rely extensively on exclusivity deals and revenue share schemes for their devices. They likely could adapt in some way but it seems unlikely they would be able to do so without taking large losses in their respective markets. So by supporting this it also delivers hard blows to Microsoft’s competition while they’re in a position to benefit from such an arrangement.

That said I still don’t think Epic really has a good case regardless and seems unlikely to win here. There’s very little evidence in this case that Apple has abused it’s position in the current market. It’s specifically that abuse that would run afoul of laws and Epic just hasn’t really showed a good case that Apple is. Their case still comes off as them wanting the ability to create a store on the Apple platform and trying to get the court to force Apple to let them.

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Bruno Brito

I think Microsoft would still back Epic in this circumstances because they’ve taken an extreme shift away from hardware exclusivity and like Epic is trying to get themselves into a position where they can be on as many platforms as possible.

I’ll repeat this to the ends of the earth: Microsoft wants the console money so much that they are willing to jeopardize the Xbox exclusivity so they can compete with the other consoles in their own storefronts.

I’m willing to bet that if they get the right to sell on the Playstation Store, they’ll pop the champagne.

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Bannex

My vote would be to just ban Fortnite but that’s simply because I think the game is stupid so take that for what it is.

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Schmidt.Capela

About the injunction, while it protects the other Epic subsidiaries until the end of the lawsuit, the judge made it clear that should any of those subsidiaries also violate their Apple developer agreement the injunction could be rendered null and void. So, while Epic got part of what they wanted, the judge nevertheless fired a warning shot across their bow.

Leo
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Leo

I wish epic would just update Fortnite to comply and make the game work again because of all those users that have been screwed over by all this. The big companies can sort this all out in the meantime

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Greaterdivinity

In that same injunction, the judge also suggests that the ruling of this case could have “significant and serious ramifications for Sony, Nintendo and Microsoft and their video game platforms” as she finds that the companies in question “all operate similar walled gardens or closed platform models as Apple, whereby the hardware, operating system, digital marketplace, and IAPs are all exclusive to the platform owner.”

HUH WEIRD, WHO COULD HAVE EVER SEEN THIS COMING?! Seriously, this was depressingly predictable as iPhones operate in a functionally identical capacity to consoles (first party hardware only, all a walled garden, no third party sales options etc.)

Wonder if Microsoft will be evaluating their support of Epic in the lawsuit after hearing the judge isn’t an idiot and can connect some very obvious dots between Apples business practices and those of Microsoft/Sony/Nintendo.

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Schmidt.Capela

Microsoft could escape that ruling by making the rumored “Windows Mode” some fans expected XBox Series X to have into a reality; this would make it possible to run anything — including third-party stores such as Steam and Epic — on the XBox Series X, eliminating the argument that the XBox is a walled garden.

Nintendo and Sony would be in direr straits, though.

(Incidentally, if that were to happen it might convince me to actually purchase an XBox Series X.)

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Greaterdivinity

Yeah…I highly doubt that’s ever gonna happen. Ever. There are so many problems with it as nice as it sounds…how will they certify those products? What security precautions would there be to protect the console/other games from third party malicious software? Why would they suddenly open up their digital store and lose a cut of all sales to another storefront?

Taking the walls down on Xbox sounds nice and all, but even with exclusives it would be financial suicide for them.

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Schmidt.Capela

I never thought Microsoft would allow you to pay for a game once and then play it on both PC and XBox, and yet here we are.

As for certification, just use separate partitions for the XBox OS and the Windows-mode OS and add a lock that prevents the XBox partition from being accessed by Windows mode.

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Greaterdivinity

Game Pass/cross buy was more about them trying to compete with Sony and leveraging their presence on PC to do so. They’re way behind and needed to do something to try to catch up.

Partitions are theoretically possible, but technically confusing for a lot of end-users. Most folks aren’t going to buy a game on Xbox and PC, so they’re not losing money with cross buy, they are if another storefront wants to take a cut of sales on the console. But it’d be pretty rad.

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Tobasco da Gama

It’s almost like there’s no relevant distinction between console walled gardens and smartphone walled gardens except for the fact that gamers arbitrarily see Apple as “evil” while seeing game console platform holders are “good”.

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Greaterdivinity

There’s an argument to be made on Android IMO. It’s an open platform and already supports multiple storefronts (Samsung store, Amazon Store which is running on Android etc.) But the open nature of the platform has also been one of the bigger selling points for it.

But not for Apple. They’ve been no different than console since what, the SNES/Genesis days? I forget when console makers started cracking down on unlicensed games for their consoles.

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Tobasco da Gama

For sure, I’ve always felt that Epic barely has a case against Google even if you accept the premise that walled gardens are inherently non-competitive.

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zoward

This is interesting. Microsoft came out in favor of Epic the other day, which made no sense to me as anyone could have seen this coming; the Xbox store is very similar to the Apple store. Maybe they’re trying to keep US and EU regulators at bay?

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cursedseishi

Microsoft had no reason not to support Epic. First and foremost being the rather… high demand in which Epic’s Unreal Engine enjoys as the predominant 3rd Party engine for games. They’re support was more tied to the loss of development licenses for updating Unreal for IOS and thus endangering the engine itself.

It’s also Microsoft showing support against Apple.

They’re also simply not worried yet about it either I’d say. Any threat this case would have towards the Gaming market is a long ways out, and Epic has long said the 30% cut for them is fair. Not that it will matter then, but given their lack of proof in showing a difference here between IOS and Console marketplaces? That could impact Epic negatively…

… Among all the other ‘unclean hand’ boneheaded acts they took. Like demanding a ‘preliminary injunction’ for Fortnite + Outside Apple payment systems when a Preliminary Injunction is meant to ensure the status quo is continued, which would have been Fortnite pre-hotfix of illicit payment system. Epic knows this, Epic’s lawyers knew this, and the judge knew they knew it so explicitly slapped it down.

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Schmidt.Capela

Judge Gonzalez Rogers looked skeptically at many of Epic’s claims, explicitly telling the company several times in the hearing she was not persuaded by its arguments or its strategy.

Epic knew that it was breaching its contract with Apple when it published the update, but did it anyway, she said, accusing the company of dishonesty.

Apple has justified its app store policies partly as a way to protect consumers from security risks and malicious software. Epic has countered that it is a credible business that has been on the iOS App Store for years and poses no security threat. But Gonzalez Rogers said that is not the issue.

“You did something, you lied about it by omission, by not being forthcoming. That’s the security issue. That’s the security issue!” Gonzalez Rogers told Epic. “There are a lot of people in the public who consider you guys heroes for what you guys did, but it’s still not honest.”

Part of the hearing that led to this current order, according to CNN.

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bobfish

Epic’s argument there was very weak, good to see that the judge has a grasp of the situation and can draw those parallels to consoles.

Curious if this could pressure Epic into withdrawing though, they’ve clearly made an effort to avoid bringing the consoles into the case, attempting to exclude them completely and Microsoft has even come out in support of Epic, but that stance might change now.

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McGuffn

Epic wants to pretend to avoid bringing consoles into the case.

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Schmidt.Capela

Yep. Because Epic knows if they anger Apple, Google, Microsoft, Sony, and Nintendo at the same time they are toast.

But if this case goes to trial then it creates precedent which will likely apply to any situation where a device maker creates a walled garden for apps running on that device. Heck, it could impact even things like smart TVs.

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Tom316

I doubt that would make epic toast in any way what so ever. If Apple, Google, Microsoft, Sony and Nintendo decide to ban the unreal engine that would be suicide for them. The Unreal Engine itself is used in a LARGE amount of console games and it also extends way outside of gaming also. Whatever company that decided to ban the unreal engine would be cutting off both of there hands at the same time. It would do nothing more then force more devs to leave the consoles for the PC market that is all that would do at a time where xbox and sony are trying as hard as they can to gobble up companies for exclusives.

What this whole lawsuit will end up doing is paving the way for a system where no one company can control the market for a console or OS. Just like back in the day with Microsoft and Windows the same thing is coming down the lines for phones and consoles, history dictates this will happen and this lawsuit is just speeding up that process.

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Lily Cheng

I read the second paragraph of your comment so many times and still can’t understand what you are trying to say. If you somehow think that Epic is in the right and what they are doing is speeding up the process of anything at all you have got to be highly delusional.

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Schmidt.Capela

Those big companies don’t need to ban Unreal to deal a crushing blow to Epic. They could just ban all of Epic’s first-party titles, which is where Epic gets most of its revenue.

As for Unreal, if those companies wanted to kill it without outright banning it they could stage a death by a thousand papercuts: start shunning Unreal devs, refusing to collaborate with them while providing increased access to developers working on competing engines. This would signal in not-so-subtle ways that anyone wishing to license a game engine should look elsewhere.

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Bruno Brito

I doubt that would make epic toast in any way what so ever.

If any of these companies get together to sharpen the pikes for Epic’s head, believe me, it IS toast. The UE is not the only thing they can cause damage. There are other ways.