Epic Games brings its Fortnite fight with Apple to Australia

Why Australia? Because it’s currently running an inquiry into app store monopolies, that's why

+Comment Epic Games has had another crack at forcing Apple to let it handle in-game purchases itself, rather than through the App Store, this time by bringing a case in Australia – a nation currently running an inquiry into app store monopolies.

The Apple vs. Epic fight kicked off in August 2020 when the game developer breached the terms and conditions of the App Store by daring to offer gamers the chance to pay it directly, rather than submitting funds through Apple’s digital bazaar and therefore giving Cupertino the right to take a 30 percent cut.

Apple responded by tossing Epic’s products out of the App Store.

The matter has been in and out of court ever since, with Epic accusing Apple of running a monopoly that denies gamers choice and Apple accusing Epic of knowingly breaching its contract.

Epic yesterday brought its side of the argument to Australia yesterday.

“You, as a mobile device owner, have the right to install apps from sources of your choosing,” says Epic’s Free Fortnite Australia post, adding: “Software makers have the right to freely express their ideas and to compete in a fair marketplace. Apple’s policies take these freedoms away.”

Apple Australia sent The Register the following comment:

For twelve years, the App Store has helped developers turn their brightest ideas into apps that change the world. Our priorities have always been to provide customers with a safe and trusted place to download software and to apply the rules equally to all developers.

Epic has been one of the most successful developers on the App Store, growing into a multibillion dollar business that reaches millions of iOS customers around the world, including Australia. In ways a judge [Yvonne Gonzalez Rogers of the US District Court] has described as deceptive and clandestine, Epic enabled a feature in its app which was not reviewed or approved by Apple, and they did so with the express intent of violating the App Store guidelines that apply equally to every developer and protect customers. Their reckless behaviour made pawns of customers, and we look forward to making this clear to Australian courts.

Enough of that PR war: Epic’s filing [PDF] with Australia’s Federal Court invokes sections of Australia’s Competition and Consumer Act that deal with illegal monopolies and unconscionable abuse of bargaining power in unequal commercial relationships.

Reg comment

The matter will eventually reach the court and put some lawyers’ children through nice schools. Epic may even win and will enjoy having a precedent set in Australia’s internationally well-regarded courts to wave around in other jurisdictions, but not a secret weapon. Taking home more cash from Australia’s 25 million people won’t hurt either.

But a bigger prize would be a change to local laws, and that is very much on the table right now because Australia is currently running an inquiry into the competitive impact of app stores that mentioned the Epic/Apple spat as one reason it is needed.

The inquiry is part of Australia's ongoing probe of how digital giants are shaping local markets.

When it thinks action is needed, Australia has shown a willingness to take on big corporations in ways that other nations have replicated.

Australia pioneered plain packaging for cigarette packets, then fought Big Tobacco and won to pursue its policy of making tobacco products look unattractive to depress sales. The policy is now used by 15 nations. Australia also led the charge to have social media companies quickly take down live streams of mass violence events, a widely-adopted policy. The nation is also currently trying to find a way to have Google and Facebook channel more funds to local news publishers, an effort that is being closely-watched as similar efforts elsewhere have been stymied.

So Epic is trying a pincer worthy of a game of Fortnite itself. It can win in court and that would not be a bad thing. It could lose in court and by doing so demonstrate that laws need a change and ram home that point to policy-makers regardless of the inquiry's recommendations. And if Australia legislates to Epic's liking, it might even find itself an ally willing to fight its battles around the world.

The stakes just got higher in this particular game. ®