Editorial: Epic Wins Their Temporary Restraining Order Rendering the Courts the New Central Planners

Buckle in and sit down, for it is time for a lesson in liberty. This has become a necessity to remedy an ongoing misconception that continues to permeate our comment section from our more vocal critics. These critics have alleged in my coverage of the Apple/Epic lawsuit that I have defended Apple against Epic. In doing so, I have unveiled some unsavory nature to my character.

While the last juncture of their argument is so laughable, it is not worth commenting on other than to mock, the former part is what requires clarification. Bringing us to our lesson in liberty. Years ago, so long ago that I can no longer remember the person who uttered this historical concept, a person explained the defenders of liberty will be called upon to defend the most egregious and disgusting members of society. Not because they have any love for them, but because when the enemies of liberty want to remove rights come for said rights, they will come for them by attacking an entity that everyone hates.

I have no love for Apple. In private, I’ve mocked them and those that support them repeatedly. They have a closed platform that doesn’t allow for creativity to thrive. Further, they do nothing to regulate against loot boxes and microtransactions despite them being blatantly gambling. Instead, they are very much content to sit back and profit off companies exploiting their users. By no means are they, in my view, a good company, by no means are they a pro-consumer company.

Why then has my coverage favored them so much? The simple reason is principle.

If Epic succeeds, it will render the courts central planners. Planners who can compel — in the interest of the greater good — you to do business with any person or entity no matter how much you do not like them. Few of our readership support Antifa; if not for the hate readers and the accelerationists that figure would be zero.

Now imagine the courts mandating businesses have to continue associating with Antifa directly or companies that openly and financially support them. No one would desire such a compulsory interaction. Not businesses who would see it as an attack against their profit potential, nor consumers who would be forced to support entities they otherwise hate.

Imagine if Raging Golden Eagle or any of the comicsgate creators were informed they had to put their content on platforms that openly work to destroy everything they stand for. That’s not hyperbole either. During the early 1900s, the United States had what were called anti-unfair competition laws. To astute economists and historians, they’re just called anti-competition laws.

Under these laws, price-fixing was standard, sales were outlawed, and if you attempted to break from the pack, you were sued and prosecuted for carrying out acts of “unfair competition.” Were these laws to return, comicsgate would very much be forced to put their products on every storefront, lest they give some an unfair advantage over another. There would be no negotiation for pricing, that would be fixed by the industry. Finally, the courts would again act as the central planners for “the greater good.”

Outside protecting and enforcing contracts and rights, the courts have no business attempting to enforce what is in “the greater good” in this sense. Chiefly because the greater good typically is used to justify stagnation rather than what is actually in the interest of the greater. Interference with the market never produces a benefit or greater good. It promotes stagnation that inevitably devolves into economic rot that pervades woes throughout society.

Thus while I wouldn’t say I like Apple, while I do not support them as a company or their practices, the idea that the courts can mandate in the interest of the greater good Apple does business with Epic is a travesty. Such an action violates the right of association, property rights, pursuit of happiness, liberty, and nearly the whole gambit of related concepts and rights. It denies the individual the right of autonomy because it otherwise might harm those who have put themselves into a position that is not advantageous to them.

Our true conservative/classic liberal readership need not be told this. They full well understand what is at stake, but to the centrists, the moderate, and the average reader an explanation was due. I don’t defend Apple; I defend the rights Epic is attempting to steal by going through Apple. Anyone who thinks the courts will just apply these rulings to Apple are going to be in for a hell of a hangover when the merriment over Apple being knocked down a peg or two ends.

Explanation aside, there is an update in the ongoing legal battle. The Courts have now opted to act as central planners and have ruled partly in favor of Epic’s Temporary Restraining Order. Epic will not be allowed to see Fortnite returned, but Apple is now being compelled to do business with Epic in the name of the greater good.

By contrast, Epic Games has made a preliminary showing of irreparable harm as to Apple’s actions related to the revocation of the developer tools (SDKs). The relevant agreement, the Apple Xcode and Apple SDKs Agreement, is a fully integrated document that explicitly walls off the developer program license agreement. (See Dkt. No. 41-21 at 16.) Apple’s reliance on its “historical practice” of removing all “affiliated” developer accounts in similar situations or on broad language in the operative contract at issue here can be better evaluated with full briefing. For now, Epic International appears to have separate developer program license agreements with Apple and those agreements have not been breached. Moreover, Apple is hard-pressed to dispute that even if Epic Games succeeded on the merits, it could be too late to save all the projects by third-party developers relying on the engine that were shelved while support was unavailable. Indeed, such a scenario would likely lead to nebulous, hard-to-quantify questions, such as, how successful these other projects might have been, and how much in royalties would have been generated, much less the collateral damage to the third-party developers themselves.

Balance of Equities: The battle between Epic Games and Apple has apparently been brewing for some time. It is not clear why now became so urgent. The Cameron case which addresses the same issues has been pending for over a year, and yet, both Epic Games and Apple remain successful market players. If plaintiffs there, or here, prevail, monetary damages will be available and injunctive relief requiring a change in practice will likely be required. Epic Games moves this Court to allow it to access Apple’s platform for free while it makes money on each purchase made on the same platform. While the Court anticipates experts will opine that Apple’s 30 percent take is anti-competitive, the Court doubts that an expert would suggest a zero percent alternative. Not even Epic Games gives away its products for free.

Thus, in focusing on the status quo, the Court observes that Epic Games strategically chose to breach its agreements with Apple which changed the status quo. No equities have been identified suggesting that the Court should impose a new status quo in favor of Epic Games. By contrast, with respect to the Unreal Engine and the developer tools, the Court finds the opposite result. In this regard, the contracts related to those applications were not breached. Apple does not persuade that it will be harmed based on any restraint on removing the developer tools. The parties’ dispute is easily cabined on the antitrust allegations with respect to the App Store. It need not go farther. Apple has chosen to act severely, and by doing so, has impacted non-parties, and a third-party developer ecosystem. In this regard, the equities do weigh against Apple.

It is worth noting though the only reason Epic was successful at all resulted from the company being split into multiple entities. Frankly, conglomerates should be treated as a single legal entity in the eyes of the courts, but the courts right now do not agree with that assessment. Thus the courts ruled the matter did not apply to Epic’s other company, despite it being another division of Epic.

If that sounds messed up, that’s because it is. Typically this is done to scapegoat debt load. If one part of a business fails, then the management company drops the dead weight and responsibilities and shifts operations to the thriving subsidiary. In gaming, a holding company typically holds the IP rights for the same reason. Courts can order you to sell off assets to repay debt, but if the development company doesn’t directly own the IP, they cannot be compelled to sell it.

Going forward, this restraining order will remain in place until a proper injunction is litigated. What that means is the matter is not entirely settled. Still, in the interest of preventing damages before the issue can be resolved, Epic will be permitted to keep their developer account access. At the injunction, Apple could prevail in preserving their right to act as a business and associate with whom they please, so the matter is far from settled. Despite the alarming movement towards tyranny.