Articles index

Your Honor, what about the Mac?

August 27 2020 by Jeff Johnson
Support this blog: Link Unshortener, StopTheMadness, Underpass, PayPal.Me

On August 17, Epic Games filed a motion for a temporary restraining order against Apple Inc. Here's an excerpt from Epic's proposed restraining order:

ORDERED that Apple, together with its agents, employees, attorneys and all persons having knowledge of this Order are restrained and enjoined from:

  1. Removing, de-listing, refusing to list or otherwise making unavailable the app Fortnite, including any update thereof, from the App Store on the basis that Fortnite offers in-app payment processing through means other than Apple’s In-App Purchase (“IAP”) or on any pretextual basis;
  2. Removing, disabling or modifying Fortnite or any code, script, feature, setting, version or update thereof from any iOS user’s device; and
  3. Taking any adverse action against Epic, including but not limited to restricting, suspending or terminating any Epic entity from Apple’s Developer Program, on the basis that Epic enabled in-app payment processing in Fortnite through means other than IAP or on the basis of the steps Epic took to do so.

A hearing on the motion took place August 24, and the presiding judge issued a temporary restraining order that evening. Here's an excerpt:

Accordingly, for the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART the motion for a temporary restraining order.

THEREFORE, APPLE AND ALL PERSONS IN ACTIVE CONCERT OR PARTICIPATION WITH APPLE, ARE TEMPORARILY RESTRAINED from taking adverse action against Epic Games with respect to restricting, suspending or terminating any affiliate of Epic Games, such as Epic International, from Apple’s Developer Program, including as to Unreal Engine, on the basis that Epic Games enabled in-app payment processing in Fortnite through means other than IAP or on the basis of the steps Epic took to do so.

There are competing interpretations of this restraining order. I take it to grant 3 from Epic's proposed restraining order but deny 1 and 2. However, some people seem to think that the restraining order not only denies 1 and 2 but also grants only part of 3. The wording is almost but not quite identical. According to the judge's order, "Apple maintains separate developer agreements and developer program licensing agreements between Epic Games, Epic International and four other affiliated entities." The competing interpretation is that the restraining order allows Apple to terminate the developer account of Epic Games, just not the developer accounts of the other 5 entities.

What's the difference? In one word: Macintosh! Apple had obviously already removed Fortnite from the iOS App Store before the motion was filed, and the judge denied Epic's motion for Apple to restore the app. However, Fortnite for macOS is distributed as a direct download from Epic Games, not in the Mac App Store, so it's not governed by App Store rules about In-App Purchase. If Apple terminates the developer account of Epic Games, then they will no longer be able to update Fortnite for macOS. Apple's letter (threat) to Epic, included as an exhibit in Epic's legal motion, states that Epic will lose access to, among other things, the "Notarization service for macOS apps", which is required for distribution on macOS Catalina and later. As a Mac developer, I'm extremely concerned about whether Apple can use App Store rules as a legal excuse to hold hostage macOS software distributed outside the Mac App Store.

Frustratingly, the temporary restraining order is almost completely silent about the Mac. The only reference to macOS was in a footnote enumerating the platforms that Fortnite supports. I personally have no legal standing in this case that I know of, but I would like to submit a question to the Honorable Judge: what about the Mac?

Support this blog: Link Unshortener, StopTheMadness, Underpass, PayPal.Me

Articles index