I am not a legal expert. So I don’t just google “is this legal?” I reached out to YouTube gaming attorney Richard Hoeg, an executive member of the Hoeg Law law firm in Northville, Michigan. He has broken down some of his thoughts on the story in his in-depth analysis of the case that Epic is bringing against Apple. If you look carefully you might see a cameo of a gif that I posted on this video.
The above video was recorded just before Google’s decision to remove Fortnite from Google Play, which led to Epic’s lawsuit against Google. However, he is committed to continuing to cover this story as it develops. So keep an eye on his channel for future legal analysis.
I wanted to get another look at this story from his point of view (although it should be noted that his comments here do not constitute legal advice) so I asked Hoeg some specific questions.
In your opinion, what could realistically be the fastest way to resolve this situation, reach an agreement with all relevant parties and get Fornite back into the app stores?
Hoeg: I don’t know what Epic is up to now with updates for Fortnite on mobile off the table. Will they contain all versions? If so, then they risk a lot and tend to close quickly. As in almost all cases, a settlement is the likely outcome, but first and foremost Apple / Google will try to rule out the respective cases for failure to state a claim (also known as summary dismissal). Unless Epic works out completely, an agreement is likely only if Apple / Google lose on layoff.
The opposite question: how long could this process take if neither party is willing to compromise or step down?
Hoeg: Federal cartel proceedings against two of the largest technology companies in the world? Years and years. (Especially in 2020 when court resources are practically non-existent)
Do you think Epic might open Pandora’s box? If they succeed in their case against Apple and Google, then could Epic possibly be forced to allow third parties to sell Fortnite skins and emotes without Epic cutting it? Any other interesting possible consequences?
Hoeg: While I think there are potential risks for epic gain here for software platforms (like EGS), the greater risk is for the consoles that are more closely analog. Why can Sony charge 30%? Or prevent a consumer from downloading an Xbox Live Store app?
What impact (if any) do you think Epic’s attempt to address this case from a public relations / marketing perspective with its “Nineteen Eighty Forty” etc. campaign might have on legal proceedings?
Hoeg: It wouldn’t affect the outcome, but it could get a derogatory remark or two from a judge (and certainly in the response documents). Epic would like to say, “We knew they would use their market power in this illegal way,” but the reality is, “When you openly breach a contract, reprisals are quick.”
Have you ever seen a lawsuit launched with an official hashtag?
Hoeg: I did not. That doesn’t mean it didn’t happen, but I can’t imagine one.