U.S. District Judge Yvonne Gonzalez Rogers in Oakland granted Epic Games a temporary restraining order (in Pacer) blocking Apple from denying Epic access to Apple development tools, including for the Unreal Engine game creation platform that Epic offers third-party developers (see 2008240010). “The record shows potential significant damage to both the Unreal Engine platform itself, and to the gaming industry generally, including on both third-party developers and gamers” if Epic is denied access, said Rogers Monday. “Epic Games and Apple are at liberty to litigate against each other, but their dispute should not create havoc to bystanders.” She denied Epic’s motion to order Fortnite’s reinstatement on the App Store. Epic “has not yet demonstrated irreparable harm” from Apple’s removal of Fortnite in apparent retaliation for Epic’s installation of an in-app direct-payment system to compete with Apple’s, she said. “The current predicament appears of its own making.” Apple and Epic didn’t comment Tuesday. Rogers set a Sept. 4 deadline for Epic to file for a preliminary injunction and a Sept. 28 Zoom hearing on the motion.

Microsoft backs the Epic Games motion for a temporary restraining order (see 2008180022) blocking Apple from permanently barring the Fortnite franchise from the App Store and cutting off Epic’s access to Apple development tools, including for the Unreal Engine game creation platform that Epic offers third-party developers. So said Kevin Gammill, Microsoft general manager-gaming developer experiences, in a declaration (in Pacer) Sunday in U.S. District Court in Oakland. Epic alleges Apple is retaliating for Epic’s launch of an independent in-app direct-payment system at the App Store. Apple counters that Epic is violating its App Store license. Unreal Engine is “critical technology for numerous game creators including Microsoft,” said Gammill. It’s one of the most popular third-party game engines available to game creators, he said. “In Microsoft’s view there are very few other options available for creators to license with as many features and as much functionality as Unreal Engine across multiple platforms, including iOS.” Microsoft has an “enterprise-wide,” multiyear Unreal Engine license agreement, said Gammill. It invested “significant resources and engineer time working with and customizing Unreal Engine for its own games on PC, Xbox consoles, and mobile devices (including iOS devices),” he said. Apple didn’t comment. Sony agreed last month to make a $250 million “strategic investment” for a minority interest in Epic (see 2007090044). U.S. District Judge Yvonne Gonzalez Rogers, who was reassigned the case Wednesday, set a Zoom hearing on Epic’s TRO motion that was to be held at 3 p.m. PDT Monday.

Netflix and Hulu are defying Ohio law by running their streaming services through “wireline facilities located at least in part in the public right-of-way,” without proper state authorization and payment of 5% quarterly “video service provider” fees to local municipalities, alleged Maple Heights, Ohio, in a complaint (in Pacer) Friday in U.S. District Court in Cleveland. Their failure to seek authorization from the Ohio commerce director and give localities 10 days’ advance written notice before activating their streaming services doesn't relieve them of the obligation to pay the franchise fees, said the complaint, seeking class-action status on behalf of other Ohio municipalities. The suburb is about 10 miles southeast of downtown Cleveland. Its lawsuit seeks back payment of the unpaid fees with interest, plus declaratory judgment that Netflix and Hulu are violating state law. The same team of lawyers filed a nearly identical complaint Aug. 11 in Texarkana for New Boston, Texas, seeking class-action status for all Texas municipalities (see 2008120001). Netflix and Hulu didn’t comment Monday.

Epic Games asked U.S. District Judge Edward Chen in San Francisco Monday for a temporary restraining order (in Pacer) preventing Apple from “delisting” Fortnite games from the App Store or rendering gameplay useless on any iOS device. Epic sued Thursday to break Apple’s alleged “monopolies” in app distribution and in-app payment processing (see 2008130048). It added a direct-payment option to Fortnite, alleging Apple retaliated by removing the franchise from the App Store. The iPhone maker subsequently threatened to terminate Epic’s membership in the Apple developer program in two weeks and deprive it of developer tools if it didn’t remove the direct-payment option, said Epic. Apple didn’t comment Tuesday.

Thursday’s Epic Games complaint alleging Apple unlawfully monopolizes app distribution and payment processing through the App Store (see 2008130048) “makes out multiple actionable antitrust claims” against the iPhone maker, reported Cowen Research Friday. If Apple moves to dismiss the complaint, “we would not expect the judge to grant it,” it said. The case was assigned to U.S. District Judge Edward Chen in San Francisco. A trial could take up to two years to resolve, though “we’re likely to get clues where the judge is headed before then,” said Cowen. Cravath Swaine, representing Epic in the complaint, is “possibly the best antitrust law firm in the country,” it said. The firm "just guided Qualcomm to its win over the FTC" (see 2008110065), it said. Its reputation "likely ensures the judge won't subtly downgrade Epic's allegations,” said Cowen. If Democrat Joe Biden wins the presidency, “it's possible Apple might consider settling rather than risk a Biden DOJ joining Epic's lawsuit and giving it additional credibility and momentum.” Apple didn’t comment Monday.

FTC Chairman Joe Simons’ two-year recusal in the agency’s antitrust case against Qualcomm ended in May, a spokesperson confirmed (see 2008110065). The 9th U.S. Circuit Court of Appeals sided with Qualcomm in the case this past week. The FTC can appeal if the commission approves.

Apple engages in “unfair and anti-competitive actions” to “unlawfully maintain” its monopolies in the multibillion dollar markets of iOS app distribution and in-app payment processing, alleged Epic Games Thursday in a 173-page complaint (in Pacer) in U.S. District Court in San Francisco. Epic isn’t seeking “monetary compensation” for the “injuries it has suffered,” nor is it seeking “favorable treatment for itself,” it said. It’s instead seeking “injunctive relief to allow fair competition in these two key markets that directly affect hundreds of millions of consumers and tens of thousands, if not more, of third-party app developers,” it said. Through its control over iOS, and using a “variety of unlawful contractual restrictions that it forces app developers to accept, Apple prevents iOS users from downloading any apps from any source other than Apple’s own storefront, the App Store,” said Epic. Epic added a direct payment system to its Fortnite franchise Thursday morning, giving players the option to continue making purchases using Apple’s payment processor or use Epic’s, said the complaint. Fortnite users on iOS, for the first time, “had a competitive alternative to Apple’s payment solution,” it said. “Rather than tolerate this healthy competition and compete on the merits of its offering, Apple responded by removing Fortnite from sale on the App Store.” Apple didn’t comment. Sony agreed last month to make a $250 million "strategic investment" for a minority interest in Epic (see 2007090044).

Netflix and Hulu are defying Texas public utilities law by running their streaming service through local servers and “broadband wireline facilities located at least in part in public rights-of-way” without proper state authorization and payment of quarterly franchise fees, alleged the city of New Boston, Texas, in a complaint (in Pacer) Tuesday in U.S. District Court in Texarkana. As video service providers, Netflix and Hulu were required to file for state-issued certificates of franchise authority through the state's Public Utility Commission, but didn’t do so, said the complaint, seeking class-action status on behalf of other Texas municipalities. The certificates would have freed them to use public ROWs in return for quarterly franchise fees equaling 5% of gross revenue to each city in which it provides service, “derived from their operations in that municipality,” it said. The complaint seeks the unpaid fees, plus declaratory judgment that Netflix and Hulu are violating the law. New Boston is about 20 miles west of Texarkana and 150 miles northeast of Dallas. Netflix and Hulu didn’t comment Wednesday.

A judge Friday terminated Paramount consent decrees, which regulate how certain movie studios distribute films to theaters (see 1911220068). U.S. District Judge Analisa Torres in Manhattan terminated the decrees, effective immediately, allowing "for a two-year sunset period on the Decrees’ provisions banning block booking and circuit dealing,” DOJ said.

Interoperability of open software interfaces enables the app economy, and is good for developers and consumers, Google argued in a supplemental Supreme Court brief Friday (18-956). The high court will hear oral argument Oct. 7 in Google v. Oracle, an intellectual property case (see 2007130056). Oracle sued Google for its use of Java programming code. A decision in favor of Oracle would limit consumers’ ability to use technologies across devices, Google Senior Vice President-Global Affairs Kent Walker argued. Oracle cited a U.S. Circuit Court of Appeals finding on fair use: “It is not fair use for Google to copy popular portions of Oracle’s software for an identical, superseding purpose in a platform that competes with Oracle’s work and its derivatives.” Google exploited the code “for the same purpose for which Oracle created it in a protected market for Oracle’s work,” Oracle said.