Sean Hollister

Epic’s lead attorney has continued to push on that with Dr. Rose, who says she was not assigned or resourced to explore “all of the fundamental economic issues,” but admits she doesn’t know if other app makers would think the whole world is as important to their business as Sweeney suggests Epic does. (Again, the Epic Google proposed settlement would change things globally, but the current injunction only applies in the US, while Epic and Google continue to fight elsewhere in the world.)

He tried a few other questions with Dr. Rose as well, but I didn’t catch anything particularly interesting. She has now stepped down, and we’re going into Epic and Google’s logistics for the next steps going forward, presumably before the judge gives us his final thoughts for the day.

We’re taking a 10-minute break, because the court reporter says she’s already typed 140 pages today and the fingers need a sec. Wow.

Dr. Rose says she isn’t assuming Google’s behavior will stop, but thinks it’s in Google’s best interests not to get hauled back before the court. She says the court has to balance the pluses and minuses of the proposals before it, she’s just here to say that the settlement doesn’t seem to fix the network effects that led to Google’s firm grip over Android apps.

Dr. Rose says “you can go to users and say we have all the apps you want to see when you join our app store, and similarly you can say to app developers that we’re going to have the whole catalog.”

Bornstein: “It does provide immediate access to a very small subset of those users.” But “it’s just the 4-5 percent of Android users who happen to live in this country,” he argues.

Both Dr. Rose and Judge Donato agree that we don’t know how much revenue that 4-5 percent generates. Donato rejects Epic’s offer to bring up a Google witness with a revenue figure, because Epic and Google are now working together and so there’s no lawyer here who can properly cross-examine that witness.

She says it’s “problematic to assume that Google will go back to the behavior that a jury found violated the antitrust laws” after the current three-year injunction ends, and that Epic could simply come back to the court to say so if it does, and perhaps ask for a three-year extension after the first three years are up. She’s also not sure why Google wouldn’t revert to bad behavior after six years if we’re assuming it would do so after three.

She says the court-ordered technical committee between Google and Epic can enact the other ideas in the settlement if they want. She also says that “decades of analysis in rate regulation” show that Google lowering its app store fees are not a substitute for creating a competitive market.

“It’s not going to help to tell the market owner to unlock the doors,” she says. “You have to lower the drawbridge for a while.” She says Judge Donato’s original injunction, which forces Google to crack open its app store by letting the apps out, is that drawbridge, and that Epic and Google are now trying to get rid of the drawbridge part.

“Is that the only thing you can think of, that a developer might get upset because there’s a store they don’t want to be associated with?” asks Judge Donato. “The minus for Google is that catalog access and hosting rival app stores on Google Play creates competition that didn’t exist before, right?”

I missed getting the whole quote, but Samat says “we were seeking a way of achieving that goal without a fee in the middle.” Samat is done for the day, and we’re all taking another 10-minute break.