Shortly before the Epic v. Apple trial, Epic Games made an interesting announcement: it would offer the indie game storefront Itch.io as an app on its own Epic Games Store. The Fortnite publisher was going to trial with the aim of making Apple offer competing app stores on its iPhone and iPad, so the move showed that Epic was willing to open up its own store in the same way.
On the fifth day of court, however, Apple tried to turn Itch.io into a liability — by telling Epic Games Store general manager Steven Allison about “so-called adult games” that were “so offensive we cannot speak about them here.”
Itch.io is one of relatively few non-game apps on the Epic Games Store, along with software like the Brave browser. It’s also, as we’ve previously described it at The Verge, “small and weird.” (Granted, it’s not quite as small as Epic seems to think; CEO Tim Sweeney said it had “at least hundreds” of games, while the real number is upwards of 200,000.) Epic hasn’t reviewed all these games, and Apple noted that its standards are different from the Epic Games Store’s. The list includes, per Apple’s attorney, a game called Sisterly Lust that includes “a list of fetishes which include many words that are not appropriate for us to speak in federal courts.”
Apple is notoriously wary of sexual or even debatably offensive content in its App Store. Until mid-2016, it told game developers that “if you want to criticize a religion, write a book. If you want to describe sex, write a book or a song, or create a medical app.” Epic is suing for the right to sideload alternative app stores like the Epic Games Store onto iOS. Today, Apple essentially warned Judge Yvonne Gonzalez Rogers that this would mean forcing Apple to indirectly allow a sexualized visual novel about incest (I’d call it a game, but Epic v. Apple witnesses have offered several conflicting definitions of that) onto the iPhone.
That’s probably not great for Epic. Judge Rogers seemed to take the concern seriously, asking Allison to explain whether Apple was correct. Allison demurred, although he later pushed back on Apple’s veiled suggestion that Epic kick Itch.io off the Epic Games Store. “Itch.io is an incredible community for developers that we support fully,” Allison said, “they have an open platform, and therefore have different moderation standards than the Epic Games Store.”
guys, Apple’s lawyers just called. They said we need to turn off ALL the games
Games Are Now ILLEGAL
— itch.io (@itchio) May 7, 2021
But regardless of what happens in court, Itch.io is an independent entity with little direct stake in the trial, and its users are largely indie game designers who are often skeptical of both Epic and Apple. (It’s got a lot of content that’s not safe for work, but it’s also by far the easiest place to publish experimental interactive media. It’s where I post my own small text-based games, and there’s a thriving indie tabletop role-playing game community, among other genres.) Some people were upset at Apple going after a platform that’s particularly favored by queer developers offering depictions of sexuality you won’t find in big-budget games. Others simply found it very, very funny.
Soon after the exchange, Itch.io’s Twitter feed jokingly claimed that Apple’s lawyers called and said to “turn off ALL the games,” then said Itch.io was renaming its “sensitive content” filter to “Unspeakable Games.” As I write this, one Itch.io user has announced a game jam called the “Unspeakable Jam” that will run until June 12th; all entries must follow Apple executive Trystan Kosmynka’s instruction that “games have a beginning and end; there’s challenges in place.”
In the interest of offering the clearest possible context for this exchange, I went back and transcribed the entire portion of testimony involving Itch.io’s unspeakable games, just to make sure it was as over-the-top as I remembered. Reader, it was.
Apple attorney: On April 22nd of this year, Epic Games Store added the Itch.io app to its store.
Steve Allison, Epic Games: Yes.
Attorney: You’re aware of that.
Allison: I am.
Attorney: And you’re aware that Itch.io is a third-party app store.
Allison: I am.
Attorney: And the court has also heard that Itch.io was added without reviewing all the games. You’re aware of that.
Allison: Yes.
Attorney: And are you aware, sir, that Itch.io includes so-called adult games, such as a game called Sisterly Lust?
Allison: I am not.
Attorney: You may not be aware then, but the description of that game includes a list of fetishes which include many words that are not appropriate for us to speak in federal courts. Are you aware of that?
Allison: I am not.
Attorney: And the list goes on. There are many games on Itch.io, I won’t even read the names out loud, but they are both offensive and sexualized. You are not aware of that?
Allison: Itch.io is an app store that is not the Epic Games Store. Itch is distributing Itch.io games. Epic is only distributing the App Store Itch.io.
Attorney: And Itch.io is now available as an app on the Epic Games Store, correct?
Allison: Yes.
Attorney: And those apps on Itch.io have not gone through any review process whatsoever. Correct?
Allison: They are subject to whatever process Itch.io puts in front of their devices.
Attorney: Right. So Epic Games, you’re sure, is on the hook for whatever process Itch.io puts in place to review these games that are so offensive we cannot speak about them here, correct?
Allison: I disagree with that statement.
Judge Rogers: So can you or can you not access those apps through your app store?
Allison: You cannot access those apps through the Epic Games Store, no. You can access those apps through their application, which that is what we are downloading: Itch.io, which is an app store. [Users] have their own account with them, and you use their store and are subject to their end user agreement.
Judge Rogers: So if I have a phone and your app store was on that phone, that other store could be downloaded which has all of this offensive material.
Allison: Not on your phone. The app could be downloaded onto your PC and you could access their app on your PC.
Judge Rogers: But that’s what you want to do on a phone too. That’s what I understand.
Allison: I don’t know that we would want to do that with Itch.io [on a phone].
Judge Rogers: But you’re doing it now, so I could access it on my PC, right?
Allison: Yes.
Judge Rogers: And this lawsuit’s about your ability to do it on your phone, right?
Allison: Yes.
Attorney: And just so we’re clear, sir, you can go to Epic Games Store, click Itch.io, and download the offensive games. Are you aware of that?
Allison: You can go to the Epic Game Store launcher, and you can launch Itch.io, which takes you out of the Epic Games Store and launches their application. You are then subject to their user agreement and you are in the Itch.io ecosystem.
Attorney: And you said to the court just a second ago that you wouldn’t want to do that with Itch.io, you wouldn’t want to put Itch.io on the phone.
Allison: I don’t know that we would or we wouldn’t. I don’t even know that it’s available as a mobile application.
Attorney: Because the reason that you said that to the court is because you’re recognizing that this is offensive and sexualized conduct that can be accessed.
Allison: I disagree with that statement.
(After digressions into some other topics, Apple’s attorney returned to the question.)
Attorney: Now that you know there are offensive and sexualized apps on Itch.io, as the head of the Epic Games Store, do you plan to do anything about that?
Allison: I don’t have an answer for you. I will dig in when we get back. But I don’t have an answer for you. I’m not sure. These apps were on Itch.io, not the Epic Games Store.
Attorney: Epic has been been advertising putting these apps in the store. Mr. Sweeney put up a tweet about Itch.io, and now you seem to be distancing yourself from Itch.io because you realized there are apps in there that you have not reviewed and cannot stand by.
Allison: I disagree with what you’re saying. Itch.io is an incredible community for developers that we support fully, they have an open platform, and therefore have different moderation standards than the Epic Games Store.
Attorney: I was just wondering, sir, if you support fully the offensive and sexualized content that is available there when people go to the Epic Games Store and download Itch.io.
Allison: I don’t support sexualized content of any sort.
