Epic win: Jury rules Google Play app store and billing an illegal monopoly

Posted:
in General Discussion edited December 2023

The Epic versus Google case has reached a significant milestone as the jury ruled that Google violated California and federal antitrust laws, but years of appeals are sure to follow.

Epic's 1984 parody
Epic's 1984 parody



Just three years after Apple's win against Epic for similar claims, Google has lost. The jury ruled that Google made special deals to stifle competition for the Play Store.

According to a report from Wired, the San Francisco jury unanimously found Google in violation of California and federal antitrust laws. However, the litigation has only begun as a judge must decide what to order Google to do to remedy the situation, followed by appeals from Google.

"We plan to challenge the verdict," says Wilson White, a Google vice president of government affairs and public policy. "We will continue to defend the Android business model and remain deeply committed to our users, partners, and the broader Android ecosystem."

Google's Android operating system already allows third-party app stores and side loading. However, the lawsuit asserts that Google uses its power over Android and the smartphone market to exact control over what apps and storefronts are promoted, pushing for Google Play over others. It also focused on Google's financial arrangements with smartphone vendors to lock users in, with Google Play as a primary app store.

Epic also alleged that existing options for users to circumvent Google Play were too cumbersome and purposefully built to push users back to Google. The company was effectively "shutting rivals off," Epic lawyer Gary Bornstein shared.

Epic published a blog post celebrating the win.

"Over the course of the trial we saw evidence that Google was willing to pay billions of dollars to stifle alternative app stores by paying developers to abandon their own store efforts and direct distribution plans, and offering highly lucrative agreements with device manufacturers in exchange for excluding competing app stores."



The blog post concludes with a thank you to the court for "the next steps determining the remedies that will right Google's decades of anticompetitive conduct."

Conversely, Apple escaped Epic's lawsuit with only one count against it -- anti-steering practices. Apple is still fighting that ruling but will likely have to comply eventually.

Epic's fight to have a foothold in app distribution and monetization continues as governments become more interested in combating antitrust.

Read on AppleInsider

Comments

  • Reply 1 of 14
    It’s a fine line, however, the way entitled folks are jumping on the current „all power to the customer“ - no matter whether it’s about „I want my own store“ or „I want to  repair everything and anything but the evil manufacturer still owns me in case something goes south“ in the end rarely creates benefits for the consumers. Similar to the mess, streaming turned out to be after breaking the chains of cable cutting. 
    Epic, the EU and other should team up to build their own frickin phone that does all they envision. And then let consumers and dev vote with their wallets. That’s what I would consider fair competition. Not entitled cry-babies  next up: right for a BMW engine in a Mercedes car. 
    9secondkox2retrogustowilliamlondondanox
  • Reply 2 of 14
    If Google actually abused their leading position (2nd place kind of leading…) to PAY developers to blackball other stores, that’s monopolistic abuse? 

    Apparently it’s all in the framing.  

    Having paid exclusives for the right to be sole distributor for any amount of time - even forever - is common practice everywhere since forever and is perfectly legal. 

    Swag doesn’t need to offer its own console - and take the inherent risks - when they can take cash from the other guys and release their titles there. Win-win. 

    This will be overturned on appeal. 
    edited December 2023 watto_cobra
  • Reply 3 of 14
    chasmchasm Posts: 3,323member
    For those worried that this might in some way apply to Epic's beef with Apple, it doesn't.

    Google engaged in specific practices that abused their monopoly (see also the recent Spotify and Google story). So far, Apple has not been successfully shown to have done the same.

    You're allowed to have rules. As long as you enforce those rules fairly, you're probably on safe ground.

    Apple has (thus far), Google appears not to have, so here we are.

    And yes, this case might be tossed on appeal. Epic already has its own store, it's just not allowed on either of the two main mobile platforms because of **actions Epic took to deliberately break the rules.**

    So the cases come down to "were these rules fairly applied?"

    I think Apple remains safe from this decision affecting their case. But of course, we'll see. Judges are not always 100 percent neutral.
    Kierkegaardenwilliamlondonronnlotoneswatto_cobra
  • Reply 4 of 14
    gatorguygatorguy Posts: 24,271member
    lmasanti said:
    With all due respect to the US Judiciary system…

    Epic vs. Apple was decided by a judge.
    Epic vs. Google ws decided by a jury.

    The jury makes its decision based in how well the parts ‘expose’ the facts.

    At least for me… that is quite different —but legally correct— form of judgement.
    What I'm unclear on is why in the Apple case it was decided it should be a bench trial, and with Google it was set up as a jury trial. Not that it would have made any difference since Google managed to piss off the judge. ;) 
    edited December 2023 muthuk_vanalingam
  • Reply 5 of 14
    next up: right for a BMW engine in a Mercedes car. 

    Hey, you'll never guess what nobody can stop you from doing.  Assuming you have the engineering chops to pull it off, that is.

    williamlondon
  • Reply 6 of 14
    MarvinMarvin Posts: 15,347moderator
    If Google actually abused their leading position (2nd place kind of leading…) to PAY developers to blackball other stores, that’s monopolistic abuse? 

    Apparently it’s all in the framing.  

    Having paid exclusives for the right to be sole distributor for any amount of time - even forever - is common practice everywhere since forever and is perfectly legal. 

    Swag doesn’t need to offer its own console - and take the inherent risks - when they can take cash from the other guys and release their titles there. Win-win. 

    This will be overturned on appeal. 
    Epic does this themselves:

    https://www.gamepressure.com/newsroom/epic-games-store-spent-1-billion-on-exclusives/z73211
    https://www.gamewatcher.com/news/Epic-games-store-exclusives

    They paid to have games exclusively on their store, locking other stores out.

    They are hypocrites claiming to be for open access to gaming but then force people to use their store because they paid off the developers. It's not about freedom but control, they want to be the dominant store and metaverse, as does their biggest investor Tencent.
    22july2013williamlondonwatto_cobra
  • Reply 7 of 14
    davidwdavidw Posts: 2,066member
    next up: right for a BMW engine in a Mercedes car. 

    Hey, you'll never guess what nobody can stop you from doing.  Assuming you have the engineering chops to pull it off, that is.


    Hey, you'll never guess what nobody can stop Epic from doing.  Developing their own ecosystem that uses their own gaming devices for games purchased from their own app store, from which they will only charge a 3% commission to process payments. This instead of trying to profit off ecosystems, without wanting to pay them for the cost to develop, upgrade/update and maintain such an ecosystem that allows Epic to use and profit from. Assuming they have the engineering chops to pull it off, that is.



    ihatescreennameswilliamlondonwatto_cobra
  • Reply 8 of 14
    davidwdavidw Posts: 2,066member
    gatorguy said:
    lmasanti said:
    With all due respect to the US Judiciary system…

    Epic vs. Apple was decided by a judge.
    Epic vs. Google ws decided by a jury.

    The jury makes its decision based in how well the parts ‘expose’ the facts.

    At least for me… that is quite different —but legally correct— form of judgement.
    What I'm unclear on is why in the Apple case it was decided it should be a bench trial, and with Google it was set up as a jury trial. Not that it would have made any difference since Google managed to piss off the judge. ;) 

    My thinking is that because with Apple, Epic could not use iOS as the relevant market to make the claim that Apple App Store is a monopoly (under current anti-trust laws) since one can not use a relevant market that only contains one brand. (Here .... Apple). If Apple had a monopoly with their App Store on iOS, that would make Mercedes having a monopoly with their 4-MATIC transmission, if the relevant market was just Mercedes autos. Disney would have a monopoly on who can open a concession stand, inside a Disneyland. Therefore, Epic first had to have a judge interpret (or re-interpret) current anti-trust laws to rule that the Apple App Store is a monopoly on iOS.  (Which the Judge didn't.) A jury can not make such a ruling. A jury can only rule whether laws as interpreted by the courts, are broken.

    Here with Google, Epic was able to use Android OS as the relevant market. In which case, under current anti-trust laws, Google does have a monopoly with their Play Store. This was not hard to prove, as Google Play have over 85% of the market share on Android. Google offers Android OS as free open source software and they allow any mobile device maker to use, modify and customize "open source Android OS", as needed to run on their mobile devices. Therefore, that allows for dozens of app stores available on Android, that competes with Google Play.  It would be much harder, if possible at all, for Google to make the claim that all the different mobile devices running a "fork" of "open source Android OS", makes for a single Google brand and therefore the relevant market for the Google Play Store, can not just include Android OS. The jury did not rule that Google had a monopoly with their Google Play Store on Android. They only ruled that Google monopoly was an "illegal" monopoly because they were abusing it. It made no difference that Google claimed that they compete with the Apple App Store, as the Apple App Store is not part of the relevant market that Epic used to show that Google Play Store is a monopoly.
    edited December 2023 watto_cobra
  • Reply 9 of 14
    gatorguygatorguy Posts: 24,271member
    davidw said:
    gatorguy said:
    lmasanti said:
    With all due respect to the US Judiciary system…

    Epic vs. Apple was decided by a judge.
    Epic vs. Google ws decided by a jury.

    The jury makes its decision based in how well the parts ‘expose’ the facts.

    At least for me… that is quite different —but legally correct— form of judgement.
    What I'm unclear on is why in the Apple case it was decided it should be a bench trial, and with Google it was set up as a jury trial. Not that it would have made any difference since Google managed to piss off the judge. ;) 

    My thinking is that because with Apple, Epic could not use iOS as the relevant market to make the claim that Apple App Store is a monopoly (under current anti-trust laws) since one can not use a relevant market that only contains one brand. (Here .... Apple). If Apple had a monopoly with their App Store on iOS, that would make Mercedes having a monopoly with their 4-MATIC transmission, if the relevant market was just Mercedes autos. Disney would have a monopoly on who can open a concession stand, inside a Disneyland. Therefore, Epic first had to have a judge interpret (or re-interpret) current anti-trust laws to rule that the Apple App Store is a monopoly on iOS.  (Which the Judge didn't.) A jury can not make such a ruling. A jury can only rule whether laws as interpreted by the courts, are broken.

    Here with Google, Epic was able to use Android OS as the relevant market. In which case, under current anti-trust laws, Google does have a monopoly with their Play Store. This was not hard to prove, as Google Play have over 85% of the market share on Android. Google offers Android OS as free open source software and they allow any mobile device maker to use, modify and customize "open source Android OS", as needed to run on their mobile devices. Therefore, that allows for dozens of app stores available on Android, that competes with Google Play.  It would be much harder, if possible at all, for Google to make the claim that all the different mobile devices running a "fork" of "open source Android OS", makes for a single Google brand and therefore the relevant market for the Google Play Store, can not just include Android OS. The jury did not rule that Google had a monopoly with their Google Play Store on Android. They only ruled that Google monopoly was an "illegal" monopoly because they were abusing it. It made no difference that Google claimed that they compete with the Apple App Store, as the Apple App Store is not part of the relevant market that Epic used to show that Google Play Store is a monopoly.
    I appreciated your thoughts, but it didn't at all answer my question: Why was the Apple trial a bench trial, but a jury trial was decided on for Google? 
    edited December 2023
  • Reply 10 of 14
    carnegiecarnegie Posts: 1,078member
    There are a number of important differences between this case against Google and Epic's case against Apple, both when it comes to the accusations made and the trial results. But the most important difference is the nature of the relevant antitrust (product) markets which were found to exist in the different cases. In the Apple case the judge did not find a relevant antitrust market which was limited to a single brand (e.g. iOS app distribution). But in the Google case the jury did find relevant antitrust markets which were limited to a single brand (i.e., the "Android app distribution market" and "Android in-app billing services for digital goods and services transactions"). For both companies, when it comes to such antitrust accusations, that's the pivotal determination: Are any of the single-brand markets which they largely control (e.g., iOS app distribution or Android app distribution) in and of themselves relevant antitrust markets?

    It will be interesting to see how that particular aspect of this jury's decision fares on appeal. Will the determinations of single-brand relevant antitrust (product) markets be upheld? Or will an appeals court find that such single-brand markets aren't, as a matter of law, supported by the facts of and evidence presented in this case? I could see the answer going either way, in large part because appeals courts haven't as-yet provided a great deal of guidance on when relevant antitrust markets can be limited to single brands - though, in fairness, the Ninth Circuit (where an initial appeal would be heard) has provided more guidance on that front than most (if not all) other circuits. It's also possible that the trial court itself (i.e. the district court judge) could find for Google that no such relevant market is supported - based on the evidence presented and as a matter of law - in response to a post-verdict motion from Google.
    gatorguyronnwatto_cobra
  • Reply 11 of 14
    danoxdanox Posts: 2,939member
    Jury or Judge isn't that your right to choose? Someone chose badly......

    https://www.nolo.com/legal-encyclopedia/judge-jury-trial-which-better.html
    edited December 2023 watto_cobra
  • Reply 12 of 14
    carnegiecarnegie Posts: 1,078member
    gatorguy said:
    lmasanti said:
    With all due respect to the US Judiciary system…

    Epic vs. Apple was decided by a judge.
    Epic vs. Google ws decided by a jury.

    The jury makes its decision based in how well the parts ‘expose’ the facts.

    At least for me… that is quite different —but legally correct— form of judgement.
    What I'm unclear on is why in the Apple case it was decided it should be a bench trial, and with Google it was set up as a jury trial. Not that it would have made any difference since Google managed to piss off the judge. ;) 
    Before I get into some of the nuance of how the respective cases developed, I'd say the simple answer to your question is... because in the Apple case Epic didn't want a jury trial and in the Google case Epic did, not initially but ultimately, want a jury trial.

    Now, some of (but not all of) the nuance...

    In Apple's case Epic didn't ask for a jury trial. And since it was only asking for equitable relief (e.g. an injunction preventing Apple from doing certain things) as opposed to legal relief (e.g. monetary damages), Apple wasn't entitled to a jury trial. Apple did make counterclaims on which it was entitled to (and asked for) a jury trial. But insisting on a jury would have meant two separate trials. So Apple ultimately agreed to one bench trial.

    In Google's case Epic again didn't ask for a jury trial and again only asked for equitable relief. Google also made counterclaims on which it was entitled to (and asked for) a jury trial. But in that case something else happened, Epic's suit was consolidated with several other cases brought against Google with all the antitrust claims to be heard in a single trial. That effectively settled the issue of whether there would be a single jury trial, a single bench trial, or separate trials (one for Epic's antitrust claims and another for Google's counterclaims). Because the other plaintiffs had asked for legal (i.e. not just equitable) relief, those other plaintiffs and Google were entitled to a jury trial. Google was set to get what it wanted, a jury trial not just on its counterclaims but on all of the antitrust claims as well.

    The cases remained on that track until Google eventually settled with all of the other (non-Epic) plaintiffs. By that point Epic and Google had switched positions; Epic wanted a jury trial and Google wanted a bench trial - perhaps, in part, because the judge had ordered that an adverse inference instruction be given to the jury in response to Google's deletion of chat records. Each side made its legal arguments and Epic (probably correctly) prevailed. Google didn't get to switch to a bench trial at the last minute.

    So in the Apple case Epic got the bench trial it wanted and largely lost. Then in the Google case Epic didn't get the bench trial it initially wanted and largely won. Go figure.
    edited December 2023 muthuk_vanalingamwilliamlondonronnwatto_cobra
  • Reply 13 of 14
    carnegiecarnegie Posts: 1,078member
    davidw said:
    gatorguy said:
    lmasanti said:
    With all due respect to the US Judiciary system…

    Epic vs. Apple was decided by a judge.
    Epic vs. Google ws decided by a jury.

    The jury makes its decision based in how well the parts ‘expose’ the facts.

    At least for me… that is quite different —but legally correct— form of judgement.
    What I'm unclear on is why in the Apple case it was decided it should be a bench trial, and with Google it was set up as a jury trial. Not that it would have made any difference since Google managed to piss off the judge. ;) 

    My thinking is that because with Apple, Epic could not use iOS as the relevant market to make the claim that Apple App Store is a monopoly (under current anti-trust laws) since one can not use a relevant market that only contains one brand. (Here .... Apple). If Apple had a monopoly with their App Store on iOS, that would make Mercedes having a monopoly with their 4-MATIC transmission, if the relevant market was just Mercedes autos. Disney would have a monopoly on who can open a concession stand, inside a Disneyland. Therefore, Epic first had to have a judge interpret (or re-interpret) current anti-trust laws to rule that the Apple App Store is a monopoly on iOS.  (Which the Judge didn't.) A jury can not make such a ruling. A jury can only rule whether laws as interpreted by the courts, are broken.

    Here with Google, Epic was able to use Android OS as the relevant market. In which case, under current anti-trust laws, Google does have a monopoly with their Play Store. This was not hard to prove, as Google Play have over 85% of the market share on Android. Google offers Android OS as free open source software and they allow any mobile device maker to use, modify and customize "open source Android OS", as needed to run on their mobile devices. Therefore, that allows for dozens of app stores available on Android, that competes with Google Play.  It would be much harder, if possible at all, for Google to make the claim that all the different mobile devices running a "fork" of "open source Android OS", makes for a single Google brand and therefore the relevant market for the Google Play Store, can not just include Android OS. The jury did not rule that Google had a monopoly with their Google Play Store on Android. They only ruled that Google monopoly was an "illegal" monopoly because they were abusing it. It made no difference that Google claimed that they compete with the Apple App Store, as the Apple App Store is not part of the relevant market that Epic used to show that Google Play Store is a monopoly.
    In both cases the determination of the relevant antitrust market was made after trial, so the different determinations wouldn't have been a reason why one case had a bench trial and one had a jury trial.

    The judge in the Apple case could have determined that there was a relevant antitrust market based on a single brand - e.g., iOS app distribution. But after trial Judge Rogers determined that wasn't the relevant antitrust market. Such a determination is part findings of fact and part conclusions of law.

    The jury in the Google case also could have determined that there was a relevant antitrust market based on a single brand, or it could have determined otherwise. After trial it determined that there were two such single-brand relevant antitrust markets. That isn't something the judge determined before trial. In theory he could have, but he didn't. It's possible that he will make such a determination after trial, i.e. that the evidence presented doesn't support such a determination.
    muthuk_vanalingamwilliamlondonwatto_cobra
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