The judge presiding over Epic Games’ Fortnite lawsuit against Apple has indicated that she has not been convinced by the game developer’s case to reinstate its game to the App Store, but is more sympathetic when it comes to Epic’s developer tools including Unreal Engine.

At the court hearing, U.S. District Judge Yvonne Gonzalez Rogers questioned Epic’s claim that it is suffering “irreparable harm” to its reputation from iOS customers asking why they cannot play Fortnite, and enquired why the developer could not simply “flip the switch” to turn off its alternate payment method and restore the status quo.

However, she did say that Apple’s move to block access to Unreal Engine looked “retaliatory”, and asked Apple’s attorneys what stopped Apple from qualifying as a monopoly, as iOS customers cannot purchase apps through other platforms such as Amazon, and given Apple’s 30% fee on in-app purchases through the App Store.

“So the question is: Without competition, where does that 30% come from? Why isn’t it 10, 15, 20? How is the consumer at all benefiting from the fact that you get to say what you want it to be?” she asked.

In a legal brief supporting Epic, Microsoft’s General Manager for Gaming Developer Experiences, Kevin Gammill, said the Unreal Engine is “critical technology” for numerous game creators including Microsoft, as many developers – especially small, independent studios – do not have the resources to develop their own proprietary game engines.

“Epic’s Unreal Engine is one of the most popular third-party game engines available to game creators, and in Microsoft’s view there are very few other options available for creators to license with as many features and as much functionality as Unreal Engine across multiple platforms, including iOS.

“Denying Epic access to Apple’s SDK and other development tools will prevent Epic from supporting Unreal Engine on iOS and macOS, and will place Unreal Engine and those game creators that have built, are building, and may build games on it at a substantial disadvantage,” he wrote.

Microsoft has a number of games using Unreal Engine available on iOS, including racing game Forza Street, Gammill added.

“Microsoft has an enterprise-wide, multi-year Unreal Engine license agreement and has invested significant resources and engineer time working with and customizing Unreal Engine for its own games on PC, Xbox consoles, and mobile devices (including iOS devices),” he wrote.

Apple has removed Fortnite from its App Store and is set to terminate Epic Games’ developer account, which would curtail Epic’s ability to support Unreal Engine games on iOS and macOS. Epic has filed suit to prevent this.

Rogers is expected to hand down a temporary order soon ahead of a hearing on September 28 to devise a long-term solution.

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