Epic Games has been getting their hands extra dirty recently.
They’ve also tried to make another argument, but I’m doubtful that it’ll work out.
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When will they learn?
I hate Epic more and more with each passing day.
They signed a contract and breached it. Now call it unfair and attack it via proper proceedings, but they brought this on themselves and now whine for exemption because they lost huge swaths of their player base?
What on Earth did they expect?
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Two weeks ago the judge dealt with this issue, and basically said that Epic was punching itself in the face and could stop the pain by… stopping punching itself in the face. Nothing precludes them from following App Store rules while their lawsuit proceeds.
The issue of irreparable harm focuses on the harm caused by not maintaining the status quo, as opposed to the separate and distinct element of a remedy under the likelihood of success factor.
Here, the Court’s evaluation is guided by the general notion that “self-inflicted wounds are not irreparable injury.” Al Otro Lado v. Wolf, 952 F.3d 999, 1008 (9thCir. 2020) (quoting Second City Music, Inc. v. City of Chicago, 333 F.3d 846, 850 (7th Cir.2003)). Further courts generally decline to find irreparable harm that “results from the expressterms of [the] contract.” See Salt Lake Tribune Publ’g Co., LLC v. AT&T Corp. , 320 F.3d 1081,1106 (10th Cir. 2003) (no irreparable harm where the alleged harm “results from the express termsof [the] contract”).
At its core, irreparable harm is harm or injury that cannot be repaired. The Court finds that with respect to Epic Games’ motion as to its games, including Fortnite, Epic Games has not yet demonstrated irreparable harm. The current predicament appears of its own making. See Second City Music, 333 F.3d at 850 (“Only the injury inflicted by one’s adversary counts for this purpose.”). Epic Games remains free to maintain its agreements with Apple in breach status as this litigation continues, but as the Seventh Circuit recognized in SecondCity Music, “[t]he sensible way to proceed is for [Epic to comply with the agreements and guidelines] and continue to operate while it builds a record.” Id. “Any injury that [Epic Games] incurs by following a different course is of its own choosing.” Id. Epic Games admits that the technology exists to “fix” the problem easily by deactivating the “hotfix.” That Epic Games would prefer not to litigate in that context does not mean that “irreparable harm” exists.
(emphasis mine)
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Yes, absolutely. Which is why this new request from them makes no sense (apart from serving their PR crusade, which is their tactic of course).
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Uh-oh.
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It’s a pretty logical next move, given that “not guilty” doesn’t do nearly as much for the perception of Apple’s…I don’t want to use the word “innocence”, but not sure what else to say…as “Apple countersued and won”.
I don’t think Apple is ever going to have a clear-cut “win” in the court of public opinion, but if the law is determined to be more unambiguously on their side it’ll probably the best victory they can hope for.
I’m pretty sure they don’t need the money. 
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Pretty expected countermove given Epic’s non-compliance. Epic breached a contract and collected payments that otherwise would have gone to Apple so Apple is asking for that money as well as an injunction against its external payment mechanism in App Store apps. Not a huge ratcheting, regardless of Epic’s latest moves.
Interesting that Apple noted that Epic execs “recognized and thanked Apple for its support and promotion of Fortnite events” as recently as April 2020 during which time, ″[u]nbeknownst to Apple, Epic had been busy enlisting a legion of lawyers, publicists, and technicians to orchestrate a sneak assault on the App Store."
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And now Epic is in the dog house for at least a year, banned from development on Apple platforms:
https://mjtsai.com/blog/2020/09/08/epic-banned-from-apple-development-for-a-year/
I will say, this is fascinating to watch.
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Given the potential broader outcome, I am not so sure if it is fascinating or frightening. 
Everybody could lose, including us customers.
Also from yesterday:
https://mjtsai.com/blog/2020/09/08/apple-antitrust-investigations-in-italy-and-australia/
And those are only the latest ones that are already in “good” company with several other entities like the EU.
Personally, I am not on Epic’s side here. But I think that Apple has put itself in a position that makes the App Store vulnerable by regulation.
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I think this was Epic’s endgame all along, given a poor legal argument.
Epic not only has its own app store with which it unreasonably demanded Apple allow into its own App Store for free, it it also 40% owned by giant Tencent (which owns 10% of Universal Music, 5% of Tesla, 10% of Spotify, 13% of Snap, and a lot more) which owns its own app store. Apple derives no income at all from 80% of the apps in the App Store because they’re free, and their cost for tools and support and marketing of the store becomes severely jeopardized if devs that would otherwise charge (and pay) would be able to use the store yet not pay anything. But cracking open the App Store, via legislation, would hurt Apple (and the ecosystem, which would have to change sans current support) while greatly enriching Epic and Tencent.
There is a larger game at play and Epic’s helping the poor widdle developer has little to do with it.
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Absolutely… I agree 100%. 
Epic is trying its best to hurt and to damage the App Store’s rules in order to basically get anything they want on iOS devices including their own payment options…
Holy cow!
Ditto!
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Epic/Tencent won’t win in court, but what they’re asking for is to wreck the current support system for the 80% of apps that don’t charge customers since it would affect Apple’s investments for them in technology, tools, software for app development and testing, marketing efforts, customer service, and how its distribution system works, all so they can grab a piece of the existing pie without having to make the same investments… or deal with supporting those grubby free apps.
As for the Tsai blog post, he is merely playing catch up, since what he quotes is from Apple’s letter from two weeks ago that was already stayed by the judge in the case.
This is unsurprising.
Ugh, what now?
I find this line hilarious, from Mr. Sweeney:
“Epic isn’t even seeking monetary damages. We are fighting for change!”
I mean…they don’t need monetary damages. If they win, they get a huge pay raise by default.
I find myself wondering if Mr. Sweeney is fighting for the monetary reasons, or if he actually believes the caped-crusader sort of stuff he’s saying. In the first case, he’s smart but disingenuous. In the second case, he’s nuts.
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Well said! Greed and insanity…
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They are fighting for a very simple reason: they want to open a store on iOS. They have done so on Windows by circumventing Steam and opened their parallel store. They want to do the same everywhere (and get a cut of sales themselves instead of Apple).
Which is why I find that holier-than-thou rhetoric absolutely disgusting and I’ll never touch anything Epic makes ever again.
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Well, if they could provide a better deal to developers without making too many tradeoffs, they would be better and right to point it out. Boycott for any reason you like, of course.
Also, thank goodness for people who seem nuts until the moment their idea is validated. That’s an old story!