Could Google actually lose?
When I walked into the courtroom on Monday morning, it seemed impossible. If Epic couldn’t prove Apple’s walled iOS garden is a monopoly, how could the comparatively open Google do worse against the windmill-tilting Fortnite developer?
But now that both sides have made their opening arguments to a jury, I’m not quite as sure. Because while Google spent most of its first day attempting to explain complicated ins and outs of business, Epic was able to paint a black-and-white picture of good and evil with itself as the clear underdog.
Epic lead attorney Gary Bornstein was tasked with making the case that Android functions as an unlawful monopoly. He did so by basically calling Google a bully and a cheat that “bribes” or “blocks” any attempt to compete with Android’s Google Play store. The result? A status quo where the vast, vast majority of Android app installs are from Google Play, with only a tiny sliver attributable to the Galaxy Store that comes preinstalled on every Samsung phone.
Bornstein showed jurors charts of Google’s fat app profit margins (70 percent on $12 billion in revenue a year, says Epic) and pointed out several ugly-seeming ways Google has allegedly attempted to keep anyone from taking that money away — like paying game developers not to build their own app stores or standalone app launchers like Epic did with Fortnite.
“Google pays actual and potential competitors not to compete. Literally gives them money and other things of value,” said Bornstein. “It’s like Google saying, ‘Here’s $360 million’ — that’s an actual number you’ll hear about — why don’t you sit this one out and let me win?”
The upshot for consumers, Epic’s earlier legal filings have suggested, is that we pay higher prices for apps than we would if there were more competition and / or lower app store and payment processing fees. But while this will probably come up later in the trial, Epic chose to focus more on simply painting Google as the bad guy on day one.
It’s not clear how much of that evidence will hold up on closer examination. That $360 million, for instance, refers to an alleged payment that kept Activision from opening an app store that could compete with Google Play. But Activision told The Verge in 2022 that it “never entered into an agreement that Activision would not open its own app store” — and Google is now, it says, armed with the evidence to prove it. On Monday, Epic’s attorney admitted Google “was too clever” to draw up contracts that specifically forced developers not to compete with the Play Store. The overall narrative is compelling, though — and I’m not sure Google’s opening statement countered it. Google spent its 45 minutes attempting to explain that its dominance over the Android app market isn’t anything nefarious but simply the natural outcome of Google fiercely competing with the iPhone and its iOS App Store, where Google would like the court to believe that competition truly lies.
If Google can convince the jury of that, it could be a winning argument in the case — because obviously, Google doesn’t have a monopoly on app stores or phones in general. “You cannot separate the quality of a phone from the quality of the apps in its app store, and that means Google and Apple compete against each other,” began Google lead attorney Glenn Pomerantz.
But Google wound up spending much of its opening statement attempting to explain away its seemingly bad behavior as normal business practices and didn’t always succeed out of the gate. I did like Pomerantz’s commonsense argument that Google can’t possibly have a monopoly on Android app stores when “every single Samsung phone comes with two app stores right on the homescreen,” which continued:
When they show these charts that show all these downloads from Play and not from the Galaxy Store, that’s what the Samsung phone users are choosing. They’re touching Play. Nothing’s keeping them from touching the Galaxy Store; it’s just what works for them.
I called Google “comparatively open” earlier, and that openness will likely be heavily debated in the weeks to come. Epic promised to “show that Google has closed off each and every other option” to the Play Store during this trial. But Google points to the simple fact that it allows alternate app channels at all — something Android rival iOS doesn’t.
Pomerantz boasted that over a billion people have gone through the process Epic portrays as needlessly onerous to get apps outside the Play Store. (Google told The Verge over email that this refers to how many users have enabled the Android sideloading flow, not necessarily followed through with an install.) “A billion people have done it after getting notified of the potential risks,” Pomerantz said. “That’s because Android users have a real choice.”
Google also took its own turn trying to paint Epic as the bad guy. First, it pointed out how Epic hatched a secret plan called “Project Liberty” to quietly update Fortnite with code to bypass app store fees, get its app kicked off Apple’s and Google’s app stores, and sue.
Then, it showed off a few out-of-context quotes from internal Epic communications — suggesting that phrases like “How do we not look like the bad guys?” and “Just planting the nefarious seed now” and “I mean everything we’re attempting is technically a violation of Google’s policy, right?” showed that Epic knew it was breaking bad at the time it did the deed.
But Epic mentioned Project Liberty in its own opening statement — so, by that point, it had already been an hour since it admitted it intentionally broke Google’s rules. “Epic decided to stand up because that’s what you do to a bully,” Bornstein told the jury.
“All we know is whatever is in the destroyed chats, as bad as the documents are, is worse.”
And it’s possible no examination will be able to take the stink off one of Google’s ugliest moves: the one where Google employees up to and including CEO Sundar Pichai were caught setting sensitive chats to auto-delete to keep them out of a court’s hands. The court has already decided Google should be sanctioned in some way for making potential evidence disappear, and Bornstein used it to plant persistent seeds of doubt in the minds of jury members. “All we know is whatever is in the destroyed chats, as bad as the documents are, is worse. Or at least it was worse, before they were destroyed.”
The best Google could do in response was to plant its own feeble seed with the jury, too: “Is Epic using the chats to distract me from all the evidence I do see?”
“It’s true that Google could have automatically saved all chats for all relevant employees, but just because Google didn’t save some chats didn’t mean it violated antitrust laws,” Pomerantz argued.
Epic’s opening statements seemed to paint a clearer picture for the jury than those from Google. But things got complicated for both parties when the first two witnesses — Epic Games Store head Steve Allison and Yoga Buddhi CEO Benjamin Simon, who also appeared in the earlier Epic v. Apple trial — took the stand.
Both Epic and Google spent a long, long time on subtle lines of questioning. You really had to read between the lines to see that Epic was trying to make a point about how Google’s 70/30 revenue split is probably based on an arbitrary decision Valve made two decades ago with Steam or how Google was trying to make a point that Epic, too, likely believed that an app store provides more value than just payment processing and maybe deserves more money.
But we have plenty more witnesses to come now that both sides are warmed up. Epic CEO Tim Sweeney watched the proceedings today — and left the courtroom with a smile. We’re expecting to hear from him as well as Google CEO Pichai, Android boss Hiroshi Lockheimer, the head of Apple’s app store, and representatives from Netflix, Motorola, and AT&T, among others.