'Retitle- Count 10 Summary - Part D. Public Interest & E. Weighing of Factors'

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4. Summary

D. Public Interest

"[T]he public interest inquiry primarily addresses the impact on non-parties rather than  parties." hiQ Labs,  (internal quotation marks omitted). "The plaintiffs bear the initial burden of showing that the injunction is in the public interest." Stormans, Inc. v. Selecky ,  (9th Cir. 2009). The current briefing does not change significantly the parties’ initial submissions or the Court's findings, which it reaffirms:

With respect to the gaming requests, the Court recognizes based on the numerous internet postings and comments submitted in the record that Fortnite players are passionate supporters of the game, and eagerly anticipate its return to the iOS platform. The Court further recognizes that during these coronavirus pandemic (COVID-19) times, virtual escapes may assist in connecting people and providing a space that is otherwise unavailable. However, the showing is not sufficient to conclude that these considerations outweigh the general public interest in requiring private parties to adhere to their contractual agreements or in resolving business disputes through normal, albeit expedited, proceedings. See S. Glazer's Distrib. of Ohio, LLC v. Great Lakes Brewing Co. , (6th Cir. 2017) (declining to enjoin termination of contract according to its terms because the "public has a strong interest in holding private parties to their agreements").

With respect to the Unreal Engine and the developer tools, the calculus changes. 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. The public context in which this injury arises differs significantly: not only has the underlying agreement not been breached, but the economy is in dire need of increasing avenues for creativity and innovation, not eliminating them. Epic Games and Apple are at liberty to litigate against each other, but their dispute should not create havoc to bystanders....

Epic Games , 2020 WL 5073937, at 4 (Dkt. No. 48 at 7).

As to Fortnite , nothing has changed in the prior analysis. The Court has empathy for Fortnite players regarding the continued unavailability of the game on the iOS platform. This is especially so during these continued difficult times that is the COVID-19 pandemic era, where gaming and virtual worlds are both social and safe. However, there is significant public interest in requiring parties to adhere to their contractual agreements or in resolving business disputes through the normal course.[36] Thus, the public interest factor weighs in favor of Apple as to Fortnite.

The record has also remained the same as to the Epic Affiliate accounts and Unreal Engine. The record demonstrates potential significant damage to both developers and gamers absent the issuance of a preliminary injunction. Indeed, many games on iOS and on other platforms, including Fortnitecompetitor PUBG , are built using Unreal Engine and rely on the engine remaining compatible with future Apple software updates. Without the ability to update the underlying engine for these and other games, the gaming industry built upon developers and fervent consumers, including iOS consumers, will be unnecessarily impacted. Moreover, the need for increasing avenues for creativity  and innovation has not abated since the prior order. If anything, the continued ongoing pandemic has demonstrated the imperative for substantial digital and virtual innovation. Epic Games and Apple are at liberty to litigate this action for the future of the digital frontier, but their dispute should not create havoc to bystanders. Thus, the public interest weighs overwhelmingly in favor of Unreal Engine and the Epic Affiliates.

E. Weighing of Factors

In sum, the Court finds that based upon the record before it, the Winterfactors weigh ***against ***granting a preliminary injunction based on Epic Games’ requests as to Fortnite and other games and ***in favor ***of granting a preliminary injunction order as the Epic Affiliates effected developer tools, including as to Unreal Engine.

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[36] Epic Games cites authority that it is not in the public interest to enforce illegal contracts. Of course, these cases presuppose a showing on the illegality of the contract, which Epic Games has not yet done, and are therefore inapposite.

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This court case 4:20-cv-05640-YGR on Oct 9, 2020, is part of the public domain. The court-created documents are works of the federal government, and under copyright law, are automatically placed in the public domain and may be shared without legal restriction.

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