Epic's Feigning Floundering to Keep Apple Under Pressure
Tim Sweeney has spent a lot of time the past few weeks talking to basically anyone who would listen, to both take a (some might say well deserved, but certainly hard-fought) victory lap with the US federal court's smackdown of Apple for failing to comply with the one ruling Epic won in their case against Cupertino a few years back, but also to note that with the new ruling, Fortnite would be coming back to the App Store.
In the US. Any day now...
That, of course, didn't happen. And the truth is that it was never going to happen, despite Sweeney's assurances. And I'm going to continue to double down on my years-long belief that Sweeney is well aware of this all, but continues to just play a different game. That is, a fairly classic pressure campaign against Apple.
Again, I've been saying this for years. I believe that Sweeney knew that Epic wouldn't and couldn't win their legal claims against Apple, at least not in full. But in just filing them, they started a process which has snowballed into a blizzard for Apple. Both around the world and now at home as well. While that has largely been political, it's also increasingly moving down the chain.
Apple developers having long been annoyed with the company about various elements of App Store development, and now Epic's lawsuit, and political fallout, gives them more cover and hope for real change. I don't believe this has yet translated to consumers in any meaningful way, but that doesn't mean that it won't. If every single headline turns into yet another thing Apple is doing to say, keep Fortnite off the App Store, years later, these things tend to have a cumulative effect. Even if Apple is in the right in that particular case, legally. The public doesn't care about that. All they see is that Apple continues to block a developer from the App Store.
And that's the thing. Apple is well within their rights not to allow Epic back to the US App Store. They clearly and explicitly broke the rules. Judges have upheld this aspect multiples times now – including the judge overseeing this whole anti-steering element, specifically. Again, it's hard to believe Tim Sweeney didn't know that would be the case. When asked if he had spoken to Apple about re-submitting Fortnite in the US, he just kept talking around it, which again suggests he knew they didn't have a great shot (despite the words coming out of his mouth).
As I wrote a few weeks back as this was unfolding:
Anyway, Sweeney knows that it's perhaps unlikely that Apple will roll this change out around the world, which is exactly why he made his "peace agreement" contingent on it! This is what he does – what he's been doing – applying continued pressure on Apple. And even just re-submitting Fortnite – which he's also done before! – is a form. He's daring Apple to accept him back, even though they don't technically have to because Epic did breach the rules around payments way back when. But Sweeney knows that if Apple rejects Fortnite, it's just another PR win for Epic and more bad press for Apple. He's calling their bluff.
But really, he's poking the bear. Again. And again. And again.
On one hand, it's silly because he's decidedly not helping his own business, Epic, in the short-term. But he's clearly playing a longer-term game here. And my point is that he's been winning it. Even if Epic did not technically win anything here.
Apple's actual stance on the matter – via lawyers – also sounds fairly reasonable. They simply would wish to not rule on allowing Epic (and thus, Fortnite) back in the US App Store until all legal proceedings between the two are final. Epic was trying to use a loophole created because of the unique situation in the EU with regard to the DMA and third-party app stores, but it was never going to fly in the US. It's pretty black and white. Epic – and all their affiliates – are banned.
Again, Sweeney is not a moron, he has to know all of this. But why simply sit quietly when you have an excuse to poke the bear again and raise hell for your cause? So that's what he's doing. He wasn't going to win the legal fight, but he could win the political one. And now he's not going to win this legal fight, but he can win the pressure campaign. Especially important in the weeks leading up to WWDC...
If I'm him, here's the general game plan:
- Re-submit Fortnite to the US App Store even though you have no legal grounds to do so. No one will care about that. They will have just read about your legal win and assume you won everything and so Fortnite can return – even though this particular aspect of the case had nothing to do with that.
- When Apple rejects (or refuses to rule) on the new submission, pull your app around the world under the notion that the unified apps all have to be updated in unison, including an element bringing the US back to the App Store. So yeah, blame Apple for this. It may even technically be true, but it doesn't matter. Again, it's a perception thing.
- File a new legal claim against Apple for blocking your submission in light of the recent ruling. Again, this has no legal grounds, but perhaps the Judge who issued that ruling is, in fact, pissed off enough to entertain this in some way – even if just in weighing in on it to dismiss it sympathetically, thus generating more press, instead of immediately dismissing it, legally.
- Give more interviews about all of the above in the coming weeks. Again, leading up to WWDC. Keep the pressure on.
If I'm right, step three may happen this week, and step four certainly will. And don't be shocked if politicians get involved even though, once again, Apple is on strong legal footing in this particular matter. That hardly matters when there are headlines to be made. And Sweeney is great at winning the headlines battle, even if he's not particularly good at winning the legal ones. Because that was never the point, per Jack Ryan.
I'm also reminded of another film...
Update May 19, 2025: And sure enough -- we're on to step 3... the Judge has said an Apple executive in charge of the App Store -- likely Phil Schiller? -- will have to show up in person to defend Apple's rationale for not allowing Epic back into the US App Store. My read is that she didn't have to do this, but she seems happy to make Apple do this to make their case legally, which they should be able to do.
Update May 21, 2025: Game over. (For now.)
M.G. Siegler
M.G. Siegler
M.G. Siegler
M.G. Siegler