As it stands, Apple is under no obligation to release Fortnite in the US if it doesn’t want to, says one legal expert.
In fact, Apple can point to Epic’s previous behaviour and “keep the door closed” until the courts rule otherwise, says gaming law expert Florian Mueller, who runs legal and regulatory blog Games Fray.
Apple’s legal argument could be based on Epic’s original violation of the tech giant’s developer agreement in 2020, Mueller says. Epic deliberately added alternative payments into Fortnite on iOS expecting to be kicked off the App Store immediately, and had its ‘Free Fortnite’ campaign and related legal action ready to go.
“The alternative payment option was hidden from Apple’s app reviewers, and that was the basis on which Apple terminated the developer agreement with Epic,” Mueller tells us. “At the end of the district court proceedings, Judge Yvonne Gonzalez Rogers held that Apple was within its rights to terminate that contract. That holding was not reversed on appeal. Therefore, Apple can still point to what happened in 2020 and keep the door closed.”
“I’m not saying that it’s fair or reasonable, but it’s what Apple appears to be doing. And there’s nothing the EU can do about it either.”
This could be the reason Apple has asked Epic to create a new US-based developer account to release Fortnite in the US. Apple already approved Epic Games Sweden, the EU-based developer account through which Epic releases its Epic Games Store on iOS in the EU only, following the introduction of new EU laws under the Digital Market Act.
“In the U.S. [Apple] can argue that they distrust Epic based on what happened in 2020, whether reasonable at this point or not,” Mueller continues. “The judge who was angry about non-compliance with the anti-anti-steering injunction also decided that Apple was within its rights to terminate Epic’s Fortnite developer account.”
“Apple has a number of reasons for which it wants to keep Fortnite out, and one of them is that Apple wants to argue on appeal that Epic is no longer on the App Store, so it doesn’t have standing – the right to sue, and in this case specifically the right to enforce.”
“Apple is unforgiving, and one doesn’t have to agree with them,” adds Mueller. “But the injunction itself does not say that Apple has to give Epic access to the App Store again.”
The increasingly messy fight between Epic and Apple continues to rumble on. At the time of writing, Epic claims that Apple’s refusal to launch Fortnite in the US is an act of “blatant retaliation”, while Apple is refusing to release the game until the court makes a decision on its request to pause the injunction that cracked open the US App Store earlier this month. Apple has also asked Epic to submit a build of Fortnite through a new US-based account, rather than its existing Epic Games Sweden account.
It’s also worth noting that this has happened before. In March 2024, Apple terminated Epic Games’ EU developer account, on the grounds that it had proven itself an untrustworthy partner in the past. After the move alerted the attentions of the European Commission, Apple reinstated the account and allowed Epic Sweden to release the Epic Games Store, complete with Fortnite, as planned.
