In a new filing, Google is pushing back against Fortnite maker Epic Games’ numerous proposed remedies after a court determined Google engaged in anticompetitive practices on its Play Store. Following the jury’s decision late last year, the two sides pled their cases about how Google should have to change its behavior in light of the ruling. For its part, Epic Games issued a wild laundry list of demands, that included it gaining access to the Play Store catalog of app and game titles for six years, the ability to distribute its own app store on Google Play with no fees, and much more. It also wanted to put an end to all agreements, incentives and deals, as well as penalties that would allow the Play Store or Google Play Billing to gain the upper hand against rivals.
The tech giant’s surprising and swift defeat was a historic ruling, especially since Epic Games largely lost a similar antitrust case with Apple, which had not been tried by jury. In the Epic-Apple lawsuit, the court decided Apple was not a monopolist, but did agree that developers should be able to steer their customers to alternative means to pay via the web. The case was appealed up to the Supreme Court, which declined to hear it, allowing the lower court’s ruling to stand.
While the jury in Google’s case was convinced that the tech giant leveraged its market power in illegal ways, it didn’t get to decide the next steps — that’s up to the judge. The new filing, along with Epic’s proposal, will help to inform Judge James Donato in a hearing scheduled on May 23 about what actions to take next to put Google’s power in check.
Epic Games in April had detailed its demands in a proposed injunction, found here. At a high level, Epic wants Google to allow users to download apps from any app store or the web, depending on their preference. It doesn’t want Google to be able to block or coerce OEMs or carriers to favor Google Play. And it doesn’t want Google to be able to impose additional fees for routing around the Play Store, which Epic Games believes is also an anticompetitive practice.
The Fortnite maker additionally asked the court to enforce other changes, including giving Epic access to the Play Store catalog so it can perform users’ app updates, without warning screens or extra fees. Plus, Epic wants developers to be able to tell its users how to pay for their apps and services elsewhere, and how much they could save by doing so. It wants to eliminate the requirement to use Google’s “User Choice Billing,” which offers only a small discount to developers who process payment transactions themselves, and much more.
Google, of course, disagrees about how the court should proceed.
In a statement, Google Vice President of Government Affairs & Public Policy Wilson White referred to Epic’s demands as overreaching and unnecessary.
“Epic’s demands would harm the privacy, security, and overall experience of consumers, developers, and device manufacturers,” he said. “Not only does their proposal go far beyond the scope of the recent U.S. trial verdict — which we will be challenging — it’s also unnecessary due to the settlement we reached last year with state attorneys general from every state and multiple territories. We will continue to vigorously defend our right to a sustainable business model that enables us to keep people safe, partner with developers to innovate and grow their businesses, and maintain a thriving Android ecosystem for everyone.”
In the injunction filed Thursday in a U.S. District Court in California, Google argues that Epic’s demands put users’ security and privacy at risk as it would remove its ability to implement trust and safety measures about the use of the third-party app stores. (Apple has used a similar strategy to fight against regulations around opening up its App Store to competition, too, saying it’s responsible for users’ privacy and security.)
Plus, Google says that it would be required to tell all third-party app stores, without user consent, which apps a user has installed. This would expose personal apps’ usage, including around sensitive areas like religion, politics or health, without rules about how that data could be used.
The company also said that Epic is asking it to remove safeguards around sideloading apps.
And in case those arguments fail, in another tactic, Google points out that the remedies Epic proposed are not needed because it already settled with state attorneys general to no longer sign wide-ranging exclusivity agreements with developers. Epic’s proposal would additionally prevent Google from working with developers to provide exclusive content through Play Store apps, which it says is an important opportunity for developers.
Finally, the state AG settlement would allow any app store to compete for placement on Android devices, Google said, but Epic’s proposal would cut it out of that process, reducing competition. Without Google involved, rival app stores would underbid, impacting OEM margins, it said.
The judge’s coming decision over the remedy in this case will be an interesting one to watch as it will set the stage for how app stores deemed monopolists will have to make concessions to allow more competition. Though Epic lost its fight with Apple, the Justice Department’s case against the iPhone maker is still underway as is its lawsuit with Google over its alleged search monopoly. The outcome of these cases will determine to what extent tech giants’ power will continue to remain unchecked, given the glaring lack of legislation in the U.S. to reign in the tech monopolies.
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