More from Epic v. Google: everything we learned in Fortnite court
Epic plans to bring up Google’s Anti-Fragmentation Agreements (AFA) during trial, but Google is getting there first with the jury:
“All the AFA did was set up some basic standards so Android phones have things in common — so Android developers could just build one version of the app, saving time and money, so it could run on a Motorola phone or a Nokia phone or an LG phone or any other phone.”
Epic will likely argue that these agreements were a kingmaker for Google’s app store.
But even if the relevant market were Android app stores, Google argues, many developers and consumers have choice that’s just one tap away.
“When they show these charts that show all these downloads from Play and not from the Galaxy Store, that’s what the Samsung phone users are choosing. They’re touching Play. Nothing’s keeping them from touching the Galaxy Store; it’s just what works for them,” argues Google.
“You cannot separate the quality of a phone from the quality of the apps in its app store, and that means Google and Apple compete against each other,” argues Google attorney Glenn Pomerantz.
That’s a shot at the heart of Epic’s case, which is that Google is preventing competition in Android app stores, not mobile phones or app stores in general.
Follow along with our live updates from the trial:
Epic says many of Google’s alleged anticompetitive behavior (like Project Hug) didn’t begin until 2019, so Google didn’t need to do these things to compete — only to protect its alleged monopoly.
Bornstein also says the evidence will show there are “a lot of other ways” to protect against malicious apps than Google’s current practices. (Google will argue that Epic is demanding it remove the security protections that keep you safe.)
(Judge Donato told Epic it was at its time limit, and Epic wrapped up quickly.)
Judge Donato allowed Epic to proactively tell the jury that Google may have something to hide — since Google employees all the way up to CEO Sundar Pichai set some of their chats to auto-delete to avoid them falling into lawyers’ hands.
“All we know is whatever is in the destroyed chats, as bad as the documents are, is worse. Or at least it was worse, before they were destroyed,” Epic attorney Gary Bornstein told the jury.
Epic is now trying to head off Google’s counterclaims before Google gets a chance to present them — by addressing the Project Liberty elephant in the room.
You see, Epic planned the whole legal trap for Google, calling it Project Liberty, where it tried to bypass Google’s (and Apple’s) fees with its own payment system buried in the code.
Epic is admitting this but says the code isn’t as scary as Google will claim: “You will not see any evidence that anyone was harmed by this or even could have been harmed by this.”
We’ve told you about Hug before, and now Epic’s telling the jury that 22 game developers “ultimately” made deals with Google that allegedly kept them from abandoning the Play Store, Bornstein claims.
“Some of them told Google they were going to compete against the Play store, and Google paid them not to do so.”
Bornstein admits “Google was too clever” to actually draw up contracts forcing devs not to compete with the Play Store but says Riot Games agreed not to compete.
Epic just showed us an apparent Google email where someone (not clear who) admitted Google was lying about not making money from Android apps.
“We have previously said that we don’t make money from [Android Market, the previous name for Google Play]. We are now lying,” the email snippet read.
Back in the day, Google said “we do not take a percentage.” Now, apps make Google $12 billion a year with a 70 percent profit margin, says Epic.
Epic knows Google will argue that it’s an open platform where anyone can install apps without going to a store. So Epic is arguing Google makes it far too difficult — by labeling sideloaded apps “unknown” and making you jump through hoops (see image below).
“Fortnite was the biggest game in the world, Google knew it was not an unknown app,” says Bornstein. “Google called it unknown so it could put up warnings just like those.”
Epic’s attorney Gary Bornstein, arguing that Google also blocks competing app stores and payment mechanisms.
“They’re not allowed to use their power to stop everyone from trying. The law draws a line.”
He says he’ll also show evidence during the trial that Google knows its up to 30 percent cut of Android app transactions is too high.
Argues Epic: “Google has such extraordinary power over android phones that it can use two strategies to prevent all other competition and maintain those big green bars. Here is what those strategies are: bribe or block.”
“Google pays actual and potential competitors not to compete. Literally gives them money and other things of value.”
“It’s like Google saying here’s $360 million — that’s an actual number you’ll hear about — why don’t you sit this one out and let me win?”
Epic’s lead attorney Gary Bornstein’s opening argument revolves around green bars — 12 of them, representing the months January–December 2020, showing the Google Play Store counts for well over 90 percent of app installs on Android that year.
Bornstein says Google will argue that the Samsung app store comes installed on 60 percent of all phones, but it’s only an orange sliver on the chart.
“That is all that Samsung, the largest OEM by far, has been able to achieve.”
Epic is up first. Here we go.
Judge Donato says the jury won’t get transcripts of what witnesses said. Also: “You should rely on your own memory of the evidence,” not notes, though they are allowed to take handwritten notes during the trial.
Jurors can ask clarifying questions during trial; they can’t speak to anyone else, though, so you won’t see me chasing down a juror for an interview.
When Epic took on Apple, it was a “bench trial” — a judge decided the whole thing, mostly in Apple’s favor. Now, a fairly similar case is going before a jury. Might they decide differently?
For example: “You must follow the law as I give it to you, regardless of whether or not you agree with it.”
“You must decide the case solely based on the evidence before you.”
If you want to see what jury instructions look like, these were the proposed jury instructions for this trial.
Judge James Donato has arrived. Lawyers have introduced themselves. Jury is about to come in. Epic v. Google is a go.
The judge is not here, the jury is not here, and the ceiling tiles look identical upon casual glance. But our butts are back in seats, and so are those belonging to the lawyers and attendees.
I asked the Epic CEO: “What do you think your chances are given how the Apple trial played out?”
He told me the weather’s nice, laughed, and then an Epic spokesperson immediately but politely barred me from a question No. 2. “We’re not doing interviews right now.”
Follow our StoryStream for the latest:
The whispers in the gallery are that there’s a “sealing” problem.
Or maybe a ceiling problem? I looked up, and the ceiling tiles look just fine, though. Guessing there’s a risk that some piece of evidence wasn’t properly sealed.
He’s sitting basically right in front of me (and one to the right).
Outside the courtroom, Tim told me he won’t be a witness today. I guess he’s here to watch it all kick off.
Butts are still in seats for now, but we’ve been informed that the judge will boot us out for a bit after he arrives. I’ll let you know when it happens, if I have enough time.
Epic v. Google is about to kick off — you can read my explainer here — and I’m in the courtroom to bring you updates live. No phones or recording devices allowed inside, so this is the only picture you’ll get!
Here’s our StoryStream where I’ll be doing live updates like this one.
A jury will decide whether Google’s Android app store is an illegal monopoly in the Epic v. Google trial starting Monday, November 6th.
The jury wasn’t on lock: when Match Group reached a surprise settlement with Google, leaving Epic to fight alone, Judge James Donato said he’d hear arguments for a bench trial instead. He heard them — but says no, Google already agreed to the jury trial.