More from Epic v. Google: everything we learned in Fortnite court
In a theoretical scenario where an angry Google employee might send an email to another employee, the “correct” answer was to “talk to the team lead in the morning,” partially because, “It’s less likely that a record of the conversation could be discovered by an adversary and used against you, and Google, in ways you didn’t imagine.”
The second-best answer was not to send the email and chat “off the record” via Hangouts instead because there’s still a risk that “any chat participant may save the conversation by simply pasting it into a doc or email.”
Epic’s lawyer asked the question several different ways, including “If a person did not want something kept after 24 hours, this is a tool you could use for that?”
Lopez would not explicitly say that an employee might use it that way on purpose — he suggested it might be to protect their own personal conversations — but he did wind up roundabout admitting the tool could be used that way.
Google’s 2020 Chat Retention Policy says in black and white (and Lopez has confirmed) that chats are permanently deleted after these amounts of time:
24 hours if chat history is turned off
Otherwise: 30 days for one-on-ones
18 months for chats in a threaded room (though apparently Google planned to change this back to 30 days in 1H 2021).
That’s how Google’s training document begins — and Epic’s attorney Lauren Moskowitz is taking us on a whirlwind tour of phrases like “Sometimes the best way to communicate something super sensitive is to not write it down” and “Your communications can have unintended consequences for you and the company.”
Now, she’s asking Lopez if he understands the concept of a legal hold — that relevant documents should not be deleted during a legal proceeding. “Even anything that may be relevant must be preserved, right?” Yes, he says, as long as it’s potentially relevant.
We are looking at a training presented to Google employees titled “You Said What?! Ten things to ensure you are communicating with care.”
Epic really, really wants the jury to think that Google intentionally deleted evidence — and that the company directed employees to do so. Let’s see what it actually says...
We’ve just begun day two of the Epic v. Google trial.
The quote is Judge James Donato telling lawyers for Activision, Amazon, and (absent today) Nintendo that he’s not inclined to seal some exhibits they want to seal — instead, he’s asking Epic to work things out with each of them right now, in the courtroom hallway, before Epic tries to present those exhibits at trial.
Judge Donato is inclined to let Google seal the names of some companies it’s in “active negotiation” with.
In opening statements, Google tried to outline the goals of its Android business. Epic focused on painting the tech giant as a bully.
After Google attempted to point out that Down Dog does at least explicitly have the ability to contact its customers via email about alternative ways to pay (would that make a difference if they bounced off the higher price tag or already signed up for a year via Google Play?), the court has dismissed Simon as a witness and wrapped up early for the day.
See you tomorrow!
If I were sitting in the jury box, I’d be very skeptical of Google’s anti-steering rules right now: Simon testified that 28 percent fewer incoming potential users decided to pay for his app at all after Google forced him to remove an in-app button that advertised a way to pay 33 percent less at his website.
“At first we just had to remove the 33 percent button ... they later made us remove some links from our website because we had some links in our app to a FAQ page,” he says.
“As a former Google employee, it was shocking to me ... Maybe it was a Google app review team employee who was making a mistake.”
Google is currently trying to destroy his credibility on cross-examination.
Benjamin Simon, co-founder, CEO, and president of Yoga Buddhi, is our second witness. He’s behind the app Down Dog, and he was also called as a witness in the Epic v. Apple trial. There, he testified that Apple repeatedly rejected his app for steering — mentioning you could get a discount by signing up outside the app store.
The judge in that case rejected Apple’s so-called anti-steering rule, though that court’s decision is currently on hold.
On Google Play, he charges $60 a year or $10 a month; on his website, it’s $40 a year or $8 a month.
Apparently, Epic Games Store head Steve Allison said under oath years ago that he believes Epic’s fee for its store is for access to Epic’s audience, not just for payment processing.
Google pounced on that. Steam charges a higher rev share for its larger audience and larger collection of games, doesn’t it? Google Play has a larger audience and more games, so shouldn’t it deserve a higher rev share? Shouldn’t Google deserve money for more than payment processing?
Allison found a way through it, but Google may have made its point.
Google’s lawyer keeps asking Epic Games Store VP if he remembers things he said two years ago, and he keeps saying he doesn’t or it’s more complicated than that, at which point Google shows the whole courtroom that he said something vaguely similar if you really squint.
One attempt that did land: Epic apparently used to warn people away from downloading its game launcher from other sources, saying that Epic’s own website was the only safe place to get it. I wonder if that’ll come up again.
Google objected to Epic Games Store boss Steve Allison telling the jury that the reason it never launched a game store on Android was because “all the warnings that come from the Android platform when you do a direct download were off-putting.”
It sounded like the objection was successful — I couldn’t quite hear what the judge said, but the Google lawyer sat down with a smile.
Also, it’s Google’s turn to question him now.
Allison testifies that after the Epic Game Store launched with an 88/12 split (meaning developers keep 88 percent of the revenue), Valve’s Steam, Microsoft’s Windows Store, and Discord all reacted by giving more money to developers, too.
“In the PC space, is 70/30 still the standard?”
No, says Allison.
1) In their opening statements, both Epic and Google tried to address the scariest-sounding arguments against them. (Epic knew it was the bad guy when it sprung this trap! Google paid off all those developers and deleted evidence!)
2) Epic claims there’s no real Android alternative to the Play Store; Google says there is, but it’s not about Android; Google has to compete with the iPhone.
3) We’re now hearing from the head of Epic’s PC games store, but it kind of makes sense.
Read the rest of our StoryStream below for the details!
We knew the company was spending millions to give away free games every week, but we’d heard it was a bit of a money sink despite not actually paying for each and every copy given away.
In case you’re keeping track, Epic Games Store boss Steve Allison says on the witness stand his store isn’t profitable yet. The goal is still growth, he says. Emails revealed during the Epic v. Apple trial suggested the company was hoping to claim half of all PC gaming revenue.
“When did Steam first introduce these 30 percent fees?”
“Do you understand where the 70/30 split structure came from?”
“Why did you believe that Steam’s 30 percent share was very high if it simply replicated Walmart’s share?” Epic’s attorney asks.
Allison says Valve simply mimic’d the physical retail split, where retailers bought games at wholesale prices and marked them up 30 percent.
But he helped Telltale relatively easily build its own digital store to keep 95 percent of revenue, he claims. He suggested Epic let developers keep 80 percent (or more) of revenue.
Epic is leading the questioning here, so he’s not on the defense — so far, he’s just explaining how he joined Epic in 2018 to help it launch its PC games store after the rise of Fortnite.
Epic is highlighting a few passages from an email from him to former Epic prez Paul Meegan about his eagerness to join: “Fortnite is blowing up pop culture” and “Fortnite blowing up definitely has created that potential Valve-Counterstrike moment at a scale that is much bigger than when that gave birth to what is now Steam.”
The email later suggests that “Steam is pretty ripe for disruption — if you wanted to take 20-30% paid digital PC market share you could like nobody else can.” Clearly, Epic agreed.
Google’s opening statement is done, but first, it introduced these snippets of internal emails from Epic employees who apparently thought its “Project Liberty” legal trap wasn’t exactly on the level:
“Just planting the nefarious seed now.”
“How do we not look like the bad guys?
“I mean everything we’re attempting is technically a violation of google’s policy, right?” writes one employee. “Yes, but that’s not the question” answers another.
“Nothing prohibited Riot from opening up a competing app store if that’s what they wanted to do.”
Project Banyan, the Samsung deal: “That deal never happened. He’s asking you to hold Google responsible for something it did not do.”
“Is Epic using the chats to distract me from all the evidence I do see?”
“It’s true that Google could have automatically saved all chats for all relevant employees, but just because Google didn’t save some chats didn’t mean it violated antitrust laws.”
“The service fee you see here is exactly the same fee that Epic pays in the Nintendo store, the Xbox store, the Steam store,” says Pomerantz. “All these stores charge a mega developer like Epic the same 30 percent fee.”
He also argues the Play Store and Android provide more value than the simple payment processing fees charged by PayPal or Stripe.
In the Epic v. Apple case, the judge agreed Apple deserved something for the platform — but not necessarily 30 percent. (Nobody can tell the jury that, though.)
“You’re going to hear directly from the person who manages the Apple App Store,” promises Google attorney Glenn Pomerantz.
He says Apple will explain that Google’s Play Store is its primary competitor for apps. Which sounds obvious, but hey, market definition.
Google is continuing to pump the gas on its “Google Play competes with the iPhone, not other Android app stores” argument, pointing out how apps like Clubhouse and ChatGPT launched on the iPhone first.
“Epic’s going to ask you to believe the App Store and the Play Store don’t compete. They’re going to try to break the phone apart as if the app store and the phone don’t relate to each other,” says Pomerantz.
That’s the title of Google’s slide attempting to explain that the 16 steps it takes to sideload Fortnite is a reasonable number.
“A billion people have done it after getting notified of the potential risks,” says Pomerantz about sideloading apps. “That’s because Android users have a real choice.”
Also: “Security is really important to competition — we need to protect users because it’s a critical point of competition between Apple and Android,” he says.