Apple takes its Fortnite fight all the way to the Supreme Court

The long-running legal dispute between Apple and Epic Games finally reached a verdict two years ago. But the battle, which began when Epic bypassed Apple’s 30 percent cut for in-app purchases and Apple responded by booting Fortnite out of the App Store, is far from over. And now it’s headed to the highest court in the land.

Given that Apple hailed Judge Yvonne Gonzalez Rogers’ 2021 ruling as “a huge win,” it was no surprise when Epic filed an appeal. Less predictably, Apple appealed too. In a filing this week, Apple attorneys argued that the court overreached in issuing a broad nationwide injunction applying to all developers, rather than just Epic. Maybe it wasn’t such a huge win after all.

While the judge ruled in Apple’s favor on nine counts, the Cupertino company was unhappy about the 10th: this one went in Epic’s favor, with the result that Apple was “permanently restrained and enjoined from prohibiting developers from including in their apps and their metadata buttons, external links, or other calls to action that direct customers to purchasing mechanisms.” This means iOS app developers can link to their own payment systems, and Apple has to put up with it. In other words, Epic gets its own way on the issue at the very heart of the original dispute.

Both Apple and Epic appealed (different parts of) the ruling to the U.S. Ninth Circuit Court of Appeals, but were unsuccessful. The companies then appealed against the appeal court’s upholding of the ruling and were unsuccessful again. So now Apple is taking its case all the way to the Supreme Court.

“The district court issued a sweeping injunction prohibiting Apple from enforcing its anti-steering rules against all developers of iOS apps offered for distribution in the United States, even though the sole named plaintiff (Epic Games, Inc.) did not seek or obtain class certification, and did not prove that an injunction running in favor of non-parties was necessary to make it whole,” the filing reads.

“The panel’s decision affirming the injunction departs from Supreme Court and Circuit precedent holding that an injunction cannot be any broader than necessary to make the plaintiff whole, and that relief cannot otherwise extend beyond the named plaintiff without class certification.”

Slightly less convincingly, the filing argues that “there would be no prejudice to Epic from a stay: Epic is not an iOS app developer and does not stand to benefit from the injunction.” Epic is not an iOS app developer because Apple terminated its account.

Apple has been rumored to be opening iOS 17 to third-party app stores and sideloading in the European Union following the Digital Markets Act’s strict terms regarding third-party app stores and payments. However, Apple has not yet announced any such changes in the operating system, which launches this fall.