Epic v. Google: everything we’re learning live in Fortnite court

In case you’re wondering why Tim Sweeney was thanking jurors on behalf of one million developers… it’s part of this blog post too.

We plan to challenge the verdict. Android and Google Play provide more choice and openness than any other major mobile platform. The trial made clear that we compete fiercely with Apple and its App Store, as well as app stores on Android devices and gaming consoles. We will continue to defend the Android business model and remain deeply committed to our users, partners, and the broader Android ecosystem. – Wilson White, VP, Government Affairs & Public Policy

That’s not surprising: a jury gave Epic a total victory today.

“Victory over Google! After 4 weeks of detailed court testimony, the California jury found against the Google Play monopoly on all counts. The Court’s work on remedies will start in January. Thanks for everyone’s support and faith! Free Fortnite!”

The jury is all smiles. “The one million game developers who couldn’t be here thank you,” says Sweeney, as they head into the elevator and down out of the courthouse.

He thanked Google’s lead attorney Glenn Pomerantz “for being very professional,” and clapped Epic’s lead attorney Gary Bornstein on the back.

Attorneys for both sides will meet with the judge in the second week of January to discuss next steps.

The judge says he will read it out.

Stand by… attorneys and journalists have filed back into the courtroom. We’re waiting for the judge and jury now.

Bornstein asked the jury to carefully read the jury instructions because Google apparently cherry-picked a sentence to point out to them earlier. He also asked them to consider whether Google tried to nip competition in the bud before it could ever emerge.

The jury filed out, the judge thanked both parties for preparing the case well and arguing it efficiently… and now, we’re done until there’s a verdict! It sounds like the jury will eat lunch before beginning deliberations, so I should have time to grab some food as well.

Epic is getting eight minutes of rebuttal to Google’s closing argument, and lead attorney Gary Bornstein is using part of it to argue this: we should look at the internal documents in this case to see what’s actually going on.

“What did they say in their documents? That tells you what they believed in the real world.”

He begins by showing one of the emails Google showed us about reacting to an Apple change in price — and that Google chose not to follow that price change at the time.

“They chose not to change their price despite believing that Apple was changing theirs,” he says, and “during that time not a single developer pulled out of the Play Store to focus on iOS.”

Kravis says it’s a “reliable and efficient way to collect the fee” to tie it to its own billing system — which is why every other app and game platform does it the same way, he claims.

But unlike Epic, it’s using red X’s instead of check marks on its visual aids.

Google has come around to Tim Sweeney’s “billions” quote once again, painting Epic as a self-serving company. The antitrust laws do not require Google to give up its services for free, says Kravis.

He also took us back to the testimony of an Epic employee who was more than uncomfortable with Epic’s Project Liberty trap for Google, asking, “Are we just pawns in Tim’s game?”

“I’m sorry, your honor, but I believe this is contrary to the court’s order,” interrupts Epic lead attorney Gary Bornstein, The judge lets Google’s attorney proceed but tells him to “walk carefully.”

“Consider this: the facts remain unchanged. The data remains unchanged,” begins Kravis.

“Time and again during this trial, you saw Epic overreach,” he adds, explaining how Epic wasn’t able to prove things like Project Hug were direct bribes or that Samsung was in collusion with Google.

Perhaps thinking about the judge’s warning, Epic moves on — Kravis is now pointing out that Epic is just trying to get a free ride on Google Play now. Here’s one quote from that:

“Epic can’t pocket the money in its own store and then stand up here and tell you it’s trying to protect the consumer.”

Just a good quote about Google’s testimony, which I don’t think quite lands because Google’s internal emails show the company was actively worried about “other options” arising on Android if Google didn’t take action.

“At the beginning of this trial, Epic told you it would prove three of the 21 Project Hug agreements were payoffs… the evidence has shown nothing like that. The written agreements don’t say anything like this,” Kravis tells the jury.

“You can review them during your deliberations, and when you do, you will see they say nothing — nothing — about developers not being able to open their competing app stores.”

He points out even Epic CEO Tim Sweeney didn’t believe Activision Blizzard truly wanted to open its own app store.

That’s Google, referring us to a Motorola exec’s testimony that Motorola found it was a competitive advantage to ship with Google apps.

“This is an android phone manufacturer telling you this helps us build better phones at a lower cost — this is pro competitive,” says Kravis.

Mind you, the Motorola testimony is also when we saw that Google does directly pay some OEMs not to preload rival app stores.

“Epic’s own expert admitted this is all the Android operating system itself requires for sideloading: three steps. And remember, you only have to go through this process once,” says Kravis. “He just thinks the steps should be compressed.”

“What evidence did you see during this trial that compressing three steps into two steps or one step would fix this alleged harm?” Kravis rhetorically asks the jury.

I’ve thought for a while that Epic mostly lost the sideloading argument, and Google’s really driving it home.

We’re back to Google suggesting the Galaxy Store side by side on the homescreen with the Google Play Store (as it is on modern Samsung phones) is evidence of competition.

“Those consumers choose the Play Store 83 percent of the time — this is Google winning the competition because it has a better store,” says Kravis.

Now we know why Google made this point earlier in the trial.

Kravis just showed the jury a slide showing all the ways to play Fortnite, including the PC, Nintendo Switch, cloud gaming and more.

“Professor Tucker’s market definition is the only one that accounts for all these other choices,” he says.

“What’s missing from [Epic’s economist’s] charts is all the other choices that consumers and developers have.”

Google says the evidence shows that Google competes with Apple on price, that we’ve repeatedly seen the two lower their service fees to compete with one another. “This is not the behavior of a monopolist,” Kravis tells the jury.

“We don’t dispute that Google competes with other stores on Android,” he says, only that he wants to show that competition extends to Apple. (Epic had repeatedly shown Apple wasn’t listed in Google’s internal documents about app store competitors.)

Kravis spent a decent chunk of Google’s closing argument fighting against the idea that users won’t switch between iOS and Android and ended that section once again suggesting that even if the percentage of switchers is small, the absolute number is large.

He also had a memorable line about the lag we’ve seen between apps appearing on iOS and Android: “What Purnima told you, and the evidence shows, is that app developers are like the rest of us. They have to prioritize, they have to decide which apps to build first.”

That seems straightforward enough — if jurors decide that Apple vs. Google is the relevant market. Google’s attorney suggests that because Apple has 64 percent of app store revenues, period, Google is too small to have monopoly power.

Now, he’s attempting to say that app stores are critical to phone buyers to the point that Apple competes with Google on that level:

“They take it home, they turn it on, it’s got a lousy app store on it… you don’t need a PhD in economics to know what’s going to happen next… they’re going to buy another phone.”