Fortnite' Will Remain Out of Apple's App Store Ahead of Trial, Judge Rules -- Update

By Sarah E. Needleman

A California federal judge said Apple Inc. doesn't have to return the popular videogame "Fortnite" to its App Store but maintained that the tech giant can't block the game's creator from accessing its critical software development tools.

The ruling Friday on Epic Games Inc.'s motion for a preliminary injunction yielded a split decision similar to Judge Yvonne Gonzalez Rogers' order in August.

"Given the novelty and the magnitude of the issues, as well as the debate in both the academic community and society at large, the Court is unwilling to tilt the playing field in favor of one party or the other with an early ruling of likelihood of success on the merits," Judge Gonzalez Rogers wrote in her ruling.

The decision sets the stage for a trial next year that could have broader implications on the market for mobile apps and the companies that operate app marketplaces.

It also comes a few days after a report from the Democratic-led House Antitrust Subcommittee accusing Apple of abusing its market power with regard to how it operates the App Store. The report referenced an article by The Wall Street Journal last year that said Apple's apps routinely appeared in search results in its App Store ahead of those from rivals. At the time Apple said it doesn't give its own products an advantage over others and that it uses an algorithm reliant on machine learning and past consumer preferences to determine results, and that app rankings fluctuate.

Epic sued Apple as well as Google in August after the companies yanked its shooter-survival game from the App Store and Google Play, citing the addition of an unauthorized payment system that skirted their 30% commission on in-app purchases of digital goods.

Epic claims that Apple's App Store commission is excessive, that Apple unfairly prohibits developers from processing customer transactions themselves and that the tech giant abuses its control of the marketplace to stifle competition. The Cary, N.C., company said in its lawsuit that Apple violated the Sherman Antitrust Act in addition to California state rules regarding anticompetitive conduct.

Apple, which countersued Epic, disputes Epic's characterizations, saying that the developer can distribute its software through multiple channels and that charging a commission isn't illegal and covers expenses such as maintaining user privacy. It also accused Epic of deliberately flouting its rules and engaging in a campaign aimed at hurting its business.

Write to Sarah E. Needleman at sarah.needleman@wsj.com

(END) Dow Jones Newswires

October 09, 2020 19:55 ET (23:55 GMT)

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