Epic and Apple were back in court today for week two of the trial sparked by Epic's 2020 accusation that Apple's iOS rules are anti-competitive. As usual, the lawyers are arguing over technical distinctions that wouldn't be out of place in a late night Discord chat: Today's questions included whether or not Fornite is for kids, and whether Fortnite creative mode is a game or something else.
One unexpected question did come up, though: Whether or not it's appropriate to show the nude chest of Peely, Fortnite's banana character, in a federal court. (The chest was shown, apparently.)
The Verge senior reporter Adi Robertson has been listening to the live audio feed from the courtroom and posting a play-by-play on Twitter (recording the audio is not allowed, so transcriptions are what we have). According to Robertson, the following exchange occurred today between Apple's lawyer and Epic marketing director Matthew Weissinger:
Apple lawyer: "We have a large yellow banana here, in a tuxedo?"
Weissinger: "Yes, that's Peely."
Apple lawyer: (After noting that Peely is wearing a suit) "We thought it was better to go with the suit instead of the naked banana, because we are in federal court right now.”
Clearly Apple's lawyer was being playful, but it's still very good that the phrases "yes, that's Peely" and "naked banana" have been recorded by the court stenographer. And the Peely discourse didn't stop there. Later, Epic lawyer Lauren Moskowitz questioned Weissinger, and Peely came up again. According to Robertson's transcription, that conversation went like:
Epic lawyer: "There might have been an implication that showing Peely without a suit might have been inappropriate." [Lawyer shows a picture of naked Peely in court.] "Is there anything inappropriate about Peely without clothes?”
Weissinger: "It's just a banana, ma'am."
"It's just a banana, ma'am" is one of those phrases that just feels right—an S-tier utterance—but sadly, it may not be exactly what was said. Due to Covid-19 restrictions, only one reporter is allowed to actually sit in the courtroom. That reporter apparently heard "It's just a banana, man," which isn't as funny. (Whatever the court stenographer wrote down will be the final word on it, though, so we'll see.)
Epic lawyer: "There might have been an implication that showing Peely without a suit might have been inappropriate. [Lawyer shows a picture of naked Peely in court.] "Is there anything inappropriate about Peely without clothes?”Weissinger: “It’s just a banana, ma’am."May 10, 2021
Last week, Apple's lawyer tried to establish that hosting third-party stores is unwise by declaring that itch.io—which Epic recently made available on the Epic Game Store—contains "offensive and sexualized" games. And now Epic is showing off a shirtless banana. Shameful.
The Peely gags were just a little aside in what was otherwise another long day of attempting to define things. Epic later called up an expert witness and tried to establish that Apple's iPhone sales create an aftermarket for iOS app distribution. That's an argument that was well-documented before the trial. I explain it, along with other arguments we expect to hear, in this overview of Epic v Apple.
We expect the trial to go on for the rest of the week, maybe a little longer. Once it's over, the judge will write her decision—which will almost definitely be appealed by whichever party it doesn't favor. So far, I'd say the winner has been itch.io. What better publicity could it have gotten than an Apple lawyer trying to make it sound like a den of depravity?
