Apple Terminated Epic’s EU Developer Account

Wednesday, 6 March 2024

Welp, so much for my theory that Apple was making nice with Epic Games — letting bygones be bygones and allowing Epic to open an iOS games marketplace in the EU. Epic, on their company blog:

We recently announced that Apple approved our Epic Games Sweden AB developer account. We intended to use that account to bring the Epic Games Store and Fortnite to iOS devices in Europe thanks to the Digital Markets Act (DMA). To our surprise, Apple has terminated that account and now we cannot develop the Epic Games Store for iOS. This is a serious violation of the DMA and shows Apple has no intention of allowing true competition on iOS devices. [...]

In terminating Epic’s developer account, Apple is taking out one of the largest potential competitors to the Apple App Store. They are undermining our ability to be a viable competitor and they are showing other developers what happens when you try to compete with Apple or are critical of their unfair practices.

If Apple maintains its power to kick a third party marketplace off iOS at its sole discretion, no reasonable developer would be willing to utilize a third party app store, because they could be permanently separated from their audience at any time.

Epic seems to be arguing that Apple is forbidden from any sort of oversight over who runs an app marketplace under the DMA. If Epic can’t run its own game store marketplace, Apple isn’t complying with the DMA — that seems to be their stance. Common sense suggests that can’t be right. There’s got to be some sort of line a developer can cross that would justify Apple revoking their developer account. One can argue that what Epic did with Fortnite and in-app payments in 2020 doesn’t cross that line. But that’s not what Epic is arguing — they’re arguing that the DMA forbids any such line, and that Apple does not have the discretion to decide who can run — and keep running — an app marketplace.

I guess Epic is implying that the EU government, not Apple, should have that discretion? They don’t say so, but who else but Apple could have that discretion? But the European Commission isn’t set up for that sort of police work. That’s not how the EC works. The DMA doesn’t say that the EC now runs app marketplaces.

Epic quotes from an email from Phil Schiller to Tim Sweeney, back on February 23:

Your colorful criticism of our DMA compliance plan, coupled with Epic’s past practice of intentionally violating contractual provisions with which it disagrees, strongly suggest that Epic Sweden does not intend to follow the rules. Another intentional breach could threaten the integrity of the iOS platform, as well as the security and privacy of users.

You have stated that allowing enrollment of Epic Games Sweden in the Developer Program is “a good faith move by Apple.” We invite you to provide us with written assurance that you are also acting in good faith, and that Epic Games Sweden will, despite your public actions and rhetoric, honor all of its commitments. In plain, unqualified terms, please tell us why we should trust Epic this time.

Sweeney’s response:

Hi Phil, Thanks for reaching out. Epic and its subsidiaries are acting in good faith and will comply with all terms of current and future agreements with Apple, and we’ll be glad to provide Apple with any specific further assurances on the topic that you’d like.

Best Regards,

-Tim

The termination of Epic Games Sweden AB’s Apple developer account was communicated in a letter from Mark Perry, a lawyer representing Apple, to Epic’s lawyers:

Mr. Sweeney’s response to that request was wholly insufficient and not credible. It boiled down to an unsupported “trust us.” History shows, however, that Epic is verifiably untrustworthy, hence the request for meaningful commitments. And the minimal assurances in Mr. Sweeney’s curt response were swiftly undercut by a litany of public attacks on Apple’s policies, compliance plan, and business model. As just one example: https://x.com/TimSweeneyEpic/status/1762243725533532587?s=20.

That Tim Sweeney tweet cited as an example doesn’t seem out of line to me. It’s strident, to be sure, but we know Sweeney endorses a regulatory structure that would legally require Apple to treat the iPhone as a platform more or less as open as the Mac. We know Apple disagrees, vehemently, with that — but I don’t see how stating that viewpoint ought to disqualify Epic from obtaining a developer account. Apple ought to stick to Epic’s deliberate breaking of the App Store rules with Fortnite back in 2020. It’s not even in dispute that they flagrantly broke the rules then. If Apple wants to make that a “lifetime” ban, they should just say so.

Citing recent tweets, like Sweeney’s, that are simply critical — even scathingly critical (or to borrow Schiller’s term, “colorful”) — just makes it look like Apple’s policy is that if a developer criticizes the App Store’s rules, Apple will punish them for speaking out. I don’t think that’s Apple’s policy at all, but some people think it is, and this situation with Epic just reinforces that.

Spotify, for example, is just as vociferous a corporate critic of the App Store as Epic is, and Apple hasn’t threatened them with revocation of Spotify’s developer program membership. The difference between Spotify and Epic isn’t in their rhetoric; it’s in their past behavior.

After Epic’s blog post was published today, Apple issued a statement to The Verge and 9to5Mac (and perhaps other outlets):

“Epic’s egregious breach of its contractual obligations to Apple led courts to determine that Apple has the right to terminate ‘any or all of Epic Games’ wholly owned subsidiaries, affiliates, and/or other entities under Epic Games’ control at any time and at Apple’s sole discretion.’ In light of Epic’s past and ongoing behavior, Apple chose to exercise that right.”

That’s a stronger, thicker-skinned argument. Stick to the fact that Epic deliberately broke the rules with the Fortnite payments stunt. Ignore the tweets arguing that Apple is abusing a monopoly.

But why not take an opportunity to look magnanimous? Apple shouldn’t be expected to grovel, but this looks like they’re going out of their way to look vindictive. I really thought it would be a clever bit of public relations jujitsu to make nice with Epic, even if, in Cupertino, it was through gritted teeth.

Popcorn-eating-wise, I’m genuinely curious about Apple citing a U.S. court decision as grounds for banning Epic’s Swedish subsidiary from holding a developer account. What happens if the European Commission doesn’t see that ruling as applicable? Epic never lost a lawsuit to Apple in the E.U. So how is this going to pan out?