In Appeal, Apple Argues Epic 'Failed to Prove' Facts of Fortnite Lawsuit

Apple continues to argue against Epic's claim the iPhone maker acted anticompetitively.

Ian Sherr Contributor and Former Editor at Large / News
Ian Sherr (he/him/his) grew up in the San Francisco Bay Area, so he's always had a connection to the tech world. As an editor at large at CNET, he wrote about Apple, Microsoft, VR, video games and internet troubles. Aside from writing, he tinkers with tech at home, is a longtime fencer -- the kind with swords -- and began woodworking during the pandemic.
Ian Sherr
4 min read

Apple and Epic have been fighting in court sine 2020 over payments processes for the App Store.

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Apple argued in court papers Thursday that appeals filings by Epic Games don't point to legal errors by a US District Court judge who ruled last year that the iPhone maker hadn't violated antitrust laws with its App Store. Instead, Apple cited the many times the judge said Epic had "failed to demonstrate," "failed to show" and "failed to prove" the facts of its case.

"On the facts and the law, the court correctly decided every issue presented in Epic's appeal," Apple lawyers wrote in the company's filing. They repeated earlier arguments that Epic is attempting to fundamentally change the App Store. "While these appeals are both important and complex, resolving the issues should not be difficult: Applying settled precedent to the adjudicated facts requires ruling for Apple across the board."

Epic declined to comment beyond its existing legal filings.

Apple's 135-page filing is the latest in the legal battle it's been fighting with Epic since August 2020. On the surface, the two companies are battling over who gets how much when consumers spend money on the App Store. Apple is fighting to maintain control of its App Store, which has become such a key feature of its iPhones that the company's ads saying "there's an app for that" are referenced in crossword puzzles and on the trivia TV show Jeopardy.

Over the past couple of years, though, Apple's runaway success with its App Store has been challenged. Epic, which makes the hit online battle game Fortnite, argued that Apple should loosen its control. In emails, court filings and public statements, Epic has said Apple should allow alternative app stores onto the iPhone and iPad, something it currently doesn't allow. Epic also says Apple should free developers to use alternative payment processors in their apps, rather than Apple's current rule requiring they use only its App Store, through which Apple takes a cut of in-app purchases on its devices.

Read more: Apple scores legal win over Epic in Fortnite lawsuit: What you need to know

In September last year, US District Judge Yvonne Gonzalez Rogers largely ruled in Apple's favor, saying Epic had failed to make its case. She did criticize Apple's business practices though, saying, "Common threads run through Apple's practices which unreasonably restrain competition and harm consumers." She also required that Apple change its App Store to allow developers slightly more freedom in how they communicate pricing to customers, a ruling Apple is also appealing.

Meanwhile, Apple hasn't allowed Fortnite back into its App Store because, it argues, Epic violated its developer policies.

Epic isn't suing just Apple. It's also suing Google over similar provisions the tech giant and Android purveyor keeps for its Google Play store for devices powered by Android, such as Samsung's Galaxy phones.

Apple and Epic Games battle it out in the courtroom

Apple CEO Tim Cook was called to testify as part of Epic's lawsuit last year.

Vicki Behringer/CNET

Battle royale

Lawmakers and regulators across the globe have taken notice while Epic's and Apple's legal battles play out in the courts. The US Congress is considering new antitrust laws that would target Apple, among other tech powerhouses. South Korean lawmakers, meanwhile, passed a law last year that prohibits companies like Google and Apple from requiring developers to use their in-app payment systems. 

Epic's appeal has garnered support from companies such as Microsoft, organizations such as the Electronic Frontier Foundation and attorneys general for 34 states and the District of Columbia, who argued Apple's power needs to be curbed.

"Apple continues to monopolize app-distribution and in-app payment solutions for iPhones, stifle competition, and amass supracompetitive profits within the almost trillion-dollar-a-year smartphone industry," the attorneys general wrote in their brief. "Apple's conduct has harmed and is harming mobile app developers and millions of citizens."

The US Department of Justice, which also filed a brief, declined to take a position on the merits of Epic's and Apple's arguments but said the district court "committed several legal errors that could imperil effective antitrust enforcement, especially in the digital economy."

Companies and other organizations supporting Apple's appeal are expected to file their briefs by next week. 

Read more: Apple mostly wins in Epic Games Fortnite trial, but must ease payment rules

In its filing Thursday, Apple argued Epic had "failed to prove any less restrictive alternatives" for app distribution or in-app purchasing requirements. Apple had argued that Epic's proposed alternative app store models would require it to "either add human review" or "leave app review to third-party app stores."

Near the end of its filing, Apple also argued Epic should pay its attorneys' fees, citing the developer-licensing-program agreement Epic agreed to when it joined the App Store. "The court ruled that Epic breached its contractual obligations to Apple," the company argued. "Epic has to pay the price for its decisions under the plain language of the very contract that it elected to disregard."

The appeals process is expected to continue into next year.