Epic Games appeals ruling in Epic v. Apple to the Ninth Circuit after partial victory

Epic Games CEO Tim Sweeney waits to move past security at the United States District Court on May 20, 2021 in Oakland, California. A judge has given Epic, the maker of popular video game Fortnite, a partial victory in its lawsuit accusing Apple of antitrust behavior through Apple's business practice of restricting in-app payments outside of options offered through its own App Store. (Philip Pacheco/Getty Images/TNS)
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Zachery Eanes The News & Observer (TNS)

Epic Games has asked for a higher court to review a California judge’s decision in the high-profile Epic Games v. Apple antitrust cases, filing an appeal on Sunday to the United States Court of Appeals for the Ninth Circuit.

On Friday, Judge Yvonne Gonzalez Rogers, of the United States District Court for the Northern District of California, handed down a partial victory to Epic in its legal battle against how Apple controls its powerful App Store, ruling that Apple can’t block developers from communicating alternative payment options to customers outside of the App Store.

The decision could give developers a greater ability to get around Apple’s 30% fee on in-app purchases, but it fell short of Epic’s much larger complaint about how Apple operates as a business.

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Cary-based Epic had fought for the judge to rule that Apple was an illegal monopoly, and that developers should have more than one way to get their apps onto iPhones and the ability to use any payment system they desired within apps.

But Gonzalez Rogers ruled that Epic hadn’t proven Apple was operating as an illegal monopoly, writing: “While the Court finds that Apple enjoys considerable market share of over 55% and extraordinarily high profit margins, these factors alone do not show antitrust conduct. Success is not illegal.”

Her ruling also will not give developers the right to put their own payment systems within the apps, meaning to get around Apple’s 30% fee, transactions will need to be done on outside websites rather than directly in the app.

And the Epic Games Store, an alternative app store, is still barred from the iPhone.

On Friday, Epic Games CEO and founder Tim Sweeney said its popular game Fortnite will not return to the App Store because he didn’t believe the court had made the App Store environment fairer to developers.

“Fortnite will return to the iOS App Store when and where Epic can offer in-app payment in fair competition with Apple in-app payment, passing along the savings to consumers,” Sweeney said on Twitter.

Following the court’s decision, Sweeney spent the weekend hiking Cold Mountain in Western North Carolina and reflecting on what he called a “loss” in court.

“Just as determined as ever to fight on until there is genuine developer and consumer freedom in software, and fair competition in each mobile platform software component,” he wrote.

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