Did Epic lie to the judge about its Fortnite hotfix?

Epic Discount
Epic Discount (Image credit: iMore)

What you need to know

  • Epic Games' couldn't quite get its story straight in court yesterday.
  • One developer says that Epic has lied to the judge in the case about how the payment system was activated.
  • Miguel de Icaza pointed out the conflicting narratives.

Famed developer Miguel de Icaza noted on Twitter last night that Epic Games might have lied to the judge in the case of its lawsuit against Apple, and a hearing on a temporary restraining order.

Judge Gonzalez Rogers upheld Apple's decision to ban Fortnite, whilst blocking it from retaliating against Epic Games' Unreal Engine and developer tools.

But something doesn't quite add up about the way Epic explained the changes it made to its Fortnite payment system, and whether Apple should have spotted it. As noted by Miguel de Icaza:

The Lawyer for Epic just said that they didn't hide the new payment option and "apple knew where to look" and implied Apple did not look- I am thinking this is not true.

As Icaza notes, Apple's previous filings in the case maintain that Epic "activated a secretly planted payment mechanism in Fortnite to slide a non-approved change into the app that blatantly evaded App Review." Essentially, Epic is alleged to have made changes to the app "server-side", so there's no way Apple could have taken issue with the feature in a previous assessment of the app when it was submitted for review.

As noted at the hearing, however, Epic's lawyers fervently argued that they did not "hide" the feature from Apple and that the code was in the app "for several weeks". From Sarah Jeong's commentary on the hearing:

YGR: Epic Games didn't tell Apple that you had code in there that would allow you to collect directly from your consumers, right?Forrest: We'd never hide it. There are lines and lines of —YGR: I get to interrupt. That's my privilegeForrest: What happened here was that we ceased to comply with an anticompetitive provision. It was with code that was resident in the build for several weeks proceeding.

But as Miguel notes, Epic's own filing for the temporary restraining order says something else:

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In Epic's own words:

"To make this payment choice available, the app did not download any executable code. Instead, the code performed the same server check that it had done previously but upon receiving notice of the two payment options, the code made both options accessible to users. (Grant Decl. 12-13.) The process of notifying an app to make existing functionality and updated content accessible to users through interaction with a developer's server is called a "hotfix", and the practice is common within the industry. (Id. ¶¶ 4-9, 11.) For example, new characters or items in a game can be made available to users upon notification from a developer's server. This process is also used for testing different versions of a feature to assess which is more successful. (Id. ¶ 9.) Indeed, the practice is so common in the industry that there are companies that specialize in helping developers deliver hotfixes. (Id. ¶ 11.) Epic has made hotfixes to Fortnite for years without Apple objection."

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As Miguel asserts, this seems like a pretty clear contradiction to what Epic told the judge in court yesterday, who explicitly said "it was with code that was resident in the build for several weeks", and if true, would undermine Epic's argument that Apple is somehow partly culpable for not picking up on the changes to code in its app when it was reviewed.

What do you think? Do Epic's explanations regarding its changes made to Fortnite stack up?

Stephen Warwick
News Editor

Stephen Warwick has written about Apple for five years at iMore and previously elsewhere. He covers all of iMore's latest breaking news regarding all of Apple's products and services, both hardware and software. Stephen has interviewed industry experts in a range of fields including finance, litigation, security, and more. He also specializes in curating and reviewing audio hardware and has experience beyond journalism in sound engineering, production, and design.

Before becoming a writer Stephen studied Ancient History at University and also worked at Apple for more than two years. Stephen is also a host on the iMore show, a weekly podcast recorded live that discusses the latest in breaking Apple news, as well as featuring fun trivia about all things Apple. Follow him on Twitter @stephenwarwick9

  • I think Epic is trying to sell the idea that someone at Apple could have found code among thousands of lines that could have, given data from the server that wasn't provided during review, enabled the payment bypass. That's not a realistic expectation of how app review works. I think it qualifies as a lie.
  • Quite possibly, but there also seems to be the possibility that there wasn't any code to find, as per Epic's admission in the filing, that this was all done server-side.
  • Either way, it is Epic intentionally providing functionality expressly forbidden, in a way to avoid detection, prior to enabling that functionality. Egregious violation of the terms.
  • To simplify it they are saying, we didnt break the rules because were werent caught at the time of breaking the rules...so them finding out about breaking the rules 2 weeks later means that it doesnt count....You know we need to leave this kind of loophole for ALL legal cases including fraud...its only breaking the law if you were caught the very second you broke the law!. I dont care how greedy a person may think but what Epic did was a shady and dishonest as you get...and again notice they arent suing microsoft,facebook,amazon,steam for charging the same 30% if they were truly crusading for the common man and small developers they would be suing the whole industry instead of just the two largest distributures...also the line that average online charges to developers being 3%per transaction is a lie...on thier own EPIC store they charge developers 12-15%... all that this is is epic doesnt want to pay the apple and google tax when raking in billions off fortnight.