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(Bloomberg) -- The judge hearing Apple Inc.’s fight with Epic Games Inc. said she’s “inclined” not to order the iPhone maker to immediately reinstate the Fortnite app as the companies faced off in their first courtroom showdown.
But U.S. District Judge Yvonne Gonzalez Rogers said during a hearing Monday that the dispute over Apple’s App Store isn’t a “slam dunk” for either side. She was sympathetic to the game developer’s argument that Apple retaliated against it by threatening to cut off Epic’s graphics technology, known as Unreal Engine, a suite of software used by millions of developers to build 3-D games and other products.
After subjecting both sides to tough questions and critical comments for more than an hour, Rogers said she will issue a temporary order soon and will hold a Sept. 28 hearing on a longer-term solution.
Apple faces a backlash from some developers who say its standard App Store fee of up to 30% and other policies are unfair and designed to benefit iPhone maker’s own services. The fight blew up Aug. 13 when Epic told customers it would begin offering a discounted direct purchase plan for items in Fortnite, and Apple then removed the game app, abruptly ending access for more than a billion iPhone and iPad customers.
Rogers appeared unconvinced by Epic’s argument that it’s suffering “irreparable harm” from the damage to its reputation by customers complaining that they can’t play Fortnite.
The judge asked Epic’s attorneys why the company can’t “flip the switch” on its independent storefront and return to “status quo” so gamers can get back to playing Fortnite.
That is “really asking us to require that consumers pay more than they should,” Epic’s lawyer Katherine Forrest said.
But the judge also said Apple’s decision to block access to the Unreal Engine “does to me look retaliatory.”
The bigger issue in the case is whether Apple’s control over its App Store amounts to a monopoly. Apple isn’t alone in taking a commission. Rogers noted that Epic takes a 12% cut from third-party game developers in its store that offers computer games.
“The definition of the market will be an interesting and complicated issue.“ Rogers said. “The battle here will not be won or lost on a temporary restraining order” or a preliminary injunction, she said.
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Apple’s lawyer defended its App Store policies, saying they take into account other stores and mobile platforms.
“Apple, while a serious and ardent competitor in that arena, is nothing approaching a monopolist once you look at the entirety of the situation,” attorney Richard Doren said.