Epic Games has recently filed a new legal argument in their case against Apple which claims that Apple had and has no right to profit off of Fortnite. This argument reaffirms Epic’s position as claiming that there is something wrong with the system which governs business interactions, while Apple continues to make its case within the system itself.
Who has a right to profit off of Fortnite?
When we look into this situation in detail it becomes somewhat uncertain exactly who should make money off of Fortnite. Arguably plenty of people make money off of Fortnite who have nothing to do with the actual creation of the game. Anyone who streams the game, or makes a video parodying the game’s content earns money off of people recognizing Fortnite. Anyone reading this article has allowed my publisher to make money off of Fortnite.
So why then does Epic claim that Apple does not deserve to make money from Fortnite?
Fair use and public discourse vs. listing and selling
For almost anyone who makes a living by producing content their work is (usually) protected under “fair use,” a policy which protects people who use a copyright-protected work when used in the creation of something original and unmistakable for the original work.
For example, someone who reenacts an episode of The Office through the Fortnite creative mode and uploads it to YouTube hasn’t violated the copyright of either The Office or Fortnite as no one should be able to mistake their content as either a replacement for the beloved comedy show or high speed building based 3rd person shooter.
The crux of Epic’s argument is that Epic did not ask Apple to be their “agent,” but rather that Apple withholds the iOS market from anyone who refuses to comply with Apple’s lopsided contracts. In their filing, Epic stated that:
“Apple’s repeated assertions of theft boil down to the extraordinary assertion that Epic’s collection of payments by players of Epic’s game to enjoy the work of Epic’s artists, designers, and engineers is the taking of something that belongs to Apple.”
Why Epic’s convincing argument may not be enough
However, while Epic’s argument that Apple has no right to profit off of Fortnite, Epic has not yet established that they do have the right to have their game listed on the App Store, or whether or not Apple has the right to restrict iOS users from other app developers.
A judge may agree with Epic’s argument, but simply assert that this is no different than Epic simply refusing to do business with Apple. Simply put, Epic can’t merely state that they have the right to refuse to give Apple a cut of their profits, they have to convince people that Epic deserves to have access to the iOS app markets as well.
While both companies have been crafting strong legal arguments, it still seems like Epic will have to rely on a legislative solution and not merely a court ruling.Published 26 Oct 2020, 00:45 IST