Epic Games Sought Side Deal for Fortnite Prior to Lawsuit, Apple Says in Court Filing [Updated]

Earlier this week, Epic Games levied a lawsuit against Apple after Apple pulled popular game Fortnite from the App Store for defying Apple's ‌App Store‌ policies surrounding in-app purchases, launching a legal battle between the two companies.

Apple in turn said that it would terminate Epic's developer accounts on August 28, prompting ‌Epic Games‌ to file a restraining order attempting to stay that removal. Apple today responded to ‌Epic Games‌' lawsuit with its own court filing, arguing that Fortnite should not be allowed to remain on the ‌App Store‌ as the legal fight plays out.

According to Apple, ‌Epic Games‌ in June sought a special deal from Apple's Phil Schiller that would change the way in which Epic offers apps on the ‌App Store‌. From CNBC:

"On June 30, 2020, Epic's CEO Tim Sweeney wrote my colleagues and me an email asking for a 'side letter' from Apple that would create a special deal for only Epic that would fundamentally change the way in which Epic offers apps on Apple's iOS platform," former Apple Senior Vice President ‌Phil Schiller‌ wrote in a declaration.

‌Epic Games‌ CEO Tim Sweeney previously said that Epic was not seeking a special deal from Apple and was instead fighting for "open platforms and policy changes equally benefiting all developers," but it appears that Epic did attempt to establish a unique relationship with Apple prior to when the lawsuit was filed. "When Apple refused to fundamentally alter the way it does business to appease Epic, Epic resorted to sudden, unilateral action that blatantly breached its contracts with Apple," reads Apple's response.

Epic had asked Apple for permission to bypass the in-app purchase system and allow Fortnite players to pay for in-game currency directly, a request that Apple denied and a feature that Epic implemented anyway. According to Schiller, Sweeney emailed him on the morning that Fortnite changed the payment mechanism and said that Epic will no longer "adhere to Apple's payment processing restrictions."

Apple lawyers argue that the emergency stay that Epic is seeking is an emergency "entirely of Epic's own making," as Apple has said that if Epic removes the direct payment mechanism that it added to Fortnite, the game would be allowed to return to the ‌App Store‌ and Fortnite's developer accounts would not be disabled.

Apple has also likened ‌Epic Games‌' behavior to a shoplifter. "If developers can avoid the digital checkout, it is the same as if a customer leaves an Apple retail store without paying for shoplifted product: Apple does not get paid," Apple said.

Apple's promise to terminate all of Epic's developer accounts and access to Apple tools on August 28 would impact the development of the Unreal Engine used in many third-party apps and games. Along with the pending account termination, Epic is not able to update Fortnite, which means that existing iOS users will not be able to take advantage of the next season of the game launching on August 27.

A court hearing is scheduled for Monday to determine whether Apple can remove Fortnite from the ‌App Store‌ for violating the ‌App Store‌ rules.

Update: In a tweet, ‌Epic Games‌ CEO Tim Sweeney called Apple's statement misleading because Epic's email also asked for the concessions to be made available to other developers.

Apple's statement is misleading. You can read my email in Apple's filing, which is publicly available. I specifically said in Epic's request to the Apple execs, "We hope that Apple will also make these options equally available to all iOS developers..." https://t.co/yRio08fPSy pic.twitter.com/HsqjApFQeo — Tim Sweeney (@TimSweeneyEpic) August 21, 2020