For years now, Google has stressed the “open” nature of the Android’s sideloading-enabled mobile platform over Apple’s completely locked-down iOS App Store. But Epic has used the opening days of its jury trial against Google to argue that this technical openness hasn’t prevented Google from creating an effective monopoly over Android app distribution through its Google Play Store.
In its opening statement (as reported by multiple sources inside the San Francisco federal courtroom), Epic attorney Gary Bornstein pointed out that the Google Play Store is responsible for 90 percent of all Android app downloads, resulting in $12 billion in profit for Google. And Epic argues that Google has maintained that dominance through a “bribe and block” strategy that “pays actual and potential competitors not to compete—literally gives them money and other things of value.
Epic’s opening arguments specifically called out League of Legends maker Riot Games as one of the companies that Google paid to eliminate the possible launch of a competing Android app store. While Epic says Google was smart enough not to note this payment in written contractual language, a less formal system helped ensure Riot was one of many companies that would “sit this one out and let [Google] win.”
In his opening statement, Google attorney Glenn Pomerantz said that Riot is free to open its own Android app store if it wants and that “bribe is a pretty strong word” for what the company offered to companies like Riot. Instead, he characterized these kinds of payments simply as “part of Google’s efforts to get the support of app developers.”
Pomerantz also pointed to the competition Google Play faces from the pre-installed Galaxy Store that Samsung places on its Android phones. Despite that easy availability, Google argues that Samsung users overwhelmingly choose the Play Store because it’s a better fit. “Nothing’s keeping them from touching the Galaxy Store; it’s just what works for them,” Pomerantz said.
Like running on quicksand?
Bornstein’s opening statement also discussed Epic’s experience trying to launch Fortnite as a sideloaded app on Android starting in 2018. Even though Fortnite was “the biggest game in the world” at the time, Android users who wanted to sideload it were faced with dire warnings about it being an “unknown app,” which made it seem dangerous, Bornstein said. That’s just one way that “if a competition were a race, it’s like Google gets to run on a nice smooth track, and everyone else has to run on quicksand.”
In his opening, Pomerantz noted that “a billion people have [sideloaded apps] after getting notified of the potential risks,” suggesting that the warnings weren’t a major impediment to the “real choice” Android users have for app installation options.
Despite its dominant position in Android app distribution, Google argued in court that “it cannot be and is not a monopolist” because it “faces strong competition from Apple and others.” If that argument sounds familiar, it’s because Apple argued essentially the converse in its own trial with Epic Games over similar issues. “You cannot separate the quality of a phone from the quality of the apps in its app store,” Pomerantz said, “and that means Google and Apple compete against each other.”
The 30 percent fee Google charges developers on the Play store is “a market fee, not a monopoly fee,” Pomerantz argued, pointing out that Epic pays that same fee to platform holders like Nintendo, Microsoft, and Valve. And in early testimony, Google pointed out that Epic Games Store head Steve Allison admitted under oath that Epic’s own 12 percent fee for the (still unprofitable) Epic Games Store on PC is in part a charge for access to Epic’s audience. If that same argument were applied to the Google Play Store, it could justify a market-based fee that’s higher than the mere “payment processing” payment that Epic CEO Tim Sweeney has argued for.
Witnesses expected to testify in the Epic v. Google trial in the coming months include Sweeney, Alphabet CEO Sundar Pichai, Alphabet CFO Ruth Porat, and Android co-founders Andy Rubin, Nick Sears, and Rich Miner.
