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

You can read the conversation at #41 here in my cache of the best Epic v. Apple emails, but Google sees the tip-off as more than a curiosity — it’s asking if Epic briefed other console makers, too.

But while an Epic Project Liberty presentation slide does suggest that Epic would “pre-brief appropriate partners” two weeks before it sprung its trap, Sweeney says Epic simply prebriefed all the console partners on a reduced price for V-Bucks, not the whole #FreeFortnite campaign.

Google’s lawyer keeps saying “you KNEW” at the beginning of each question, as if Epic CEO Tim Sweeney hadn’t already admitted to premeditating the entire legal fight.

But just in case you’re nodding off in the jury box, like one juror I’m looking at right now who’s wearing a puffy black vest, perhaps his forceful tone will get your attention.

(Google may need to show these things in order to win its countersuit.)

Google is repeatedly asking Tim Sweeney if he understood the notice he got when Fortnite got rejected from the Play Store for the second time. We’re looking at it now:

your app continues to violate Payments policy, which generally prohibits games published on Google Play from providing a payment method other than Google Play Billing to purchase in-app virtual currency or in-app digital downloads.

“You understood from this email that Google’s payments policy prohibited you from using Epic Pay for purchases of V-Bucks, right?”

Sweeney says yes.

“You decided to sneak that version in, right?” Google’s lawyer Jonathan Kravis asks, referring to the hotfix.

“Yes that’s what we decided to do with Project Liberty,” Sweeney freely admits.

I got a laugh out of this whole conversation a couple years ago, and Google’s bringing it up again: you can read the original documents at #32 in my cache of the best emails from the Epic v. Apple trial.

The TL;DR: Tim Sweeney promised he wouldn’t give into pressure to put Fortnite on the Play Store, negotiated a special deal with Samsung for 12 percent, then went back on his word — and Samsung wasn’t happy.

Sweeney says Epic still does have a special deal with Samsung, though, to this very day.

Judge James Donato ordered that Google could bring up once and only once during the trial that Epic Games is partially owned by Tencent, a Chinese company, and not dwell on it. That just happened.

Kravis didn’t do much with it, simply adding it to a machine-gun list of yes/no questions including “Tencent is a Chinese company, right?” and “Tencent is a significant investor in Epic Games?” later suggesting out that Tencent signed a Project Hug deal as well.

I’m afraid I didn’t glance up at the jury in time to see if there was any reaction. They seem fairly comfortable and completely unreadable right now.

Sweeney agrees.

More questions from Google’s Kravis designed to point out hypocrisy:

“The 12 percent fee isn’t just for payment processing, is it, Mr. Sweeney?”

Sweeney admits his Epic Games Store’s 12 percent is for more than just payment processing.

“What’s true for the service fee in your store is also true for the service fee in our store, right?”

Sweeney waffles.

We’re looking at a slide showing all the places you can buy V-Bucks: Epic’s website, consoles, PCs, physical retail, the sideloaded app, and the Samsung Galaxy Store.

Sweeney admits that if you buy your V-Bucks anywhere else, then use them in Fortnite on Android, Google doesn’t make money.

Sweeney agrees.

Google’s Kravis particularly incisive question might make Sweeney look like he’s trying to have it both ways. Fortnite is a freemium game, Google is pointing out — meaning most of its players are subsidized by a smaller number of paying customers.

But that’s also how Google Play works as an app store, and how Google has been justifying its 30 percent fee (and, if we go meta, how Epic is likely funding this whole legal battle, since its PlayStation riches probably subsidize its Android and Apple legal fees.)

Kravis is taking a while to get around to this point, but we’re moving down that road — he just asked Sweeney how much it costs Epic to create the “V-Bucks” it sells players.

Google lawyer Jonathan Kravis has a slideshow ready and waiting and is asking Epic CEO Tim Sweeney the same basic question four ways: does Sony charge 30 percent? Does Microsoft charge 30 percent? Does Nintendo charge 30 percent? Does Apple? Do any of them allow sideloading or app stores?

Sweeney agrees, all of them charge 30 percent. None of them allow sideloading or app stores — save Android.

“Epic still makes plenty of money on consoles, right?” asks Kravis.

Epic is currently losing money, Sweeney claims — but Kravis says Epic earned $12 billion across Sony, Microsoft and Nintendo platforms.

Sweeney reiterates that Epic is not seeking any money from Google — he just wants to expand the business. He says that while Epic has been damaged by Google because it can’t meaningfully distribute Fortnite on phones, Epic isn’t seeking any damages — it just wants the court to make Google stop enforcing its policies.

Now, it’s Google’s turn to question him.

Tim Sweeney himself doesn’t seem to have lied under oath, but the question from Epic’s lawyer was remarkable: “Did you ever let Google know you were going down this road?”

Sweeney says that about 15 minutes after Epic released the hotfix that injected its own payments platform into the Fortnite app on Android, he sent an email to Google senior executives and “asked them to reconsider their payment policies.”

After, not before.

Here’s part of a longer email that Tim Sweeney sent to Google top brass on June 30th, 2020:

Dear Sundar, Hiroshi, Jamie, Don:

We would like to offer consumers the following features:

1) Competing payment processing options other than google play payments, without Google’s fees, in Fortnite and other epic games software distributed through Google Play;

2) A competing Epic Games Store app available through Google Play and/or through direct installation that has equal access to underlying operating system features for software installation and update as Google Play itself has, including the ability to install and update software without Google warning screens which discourage users from using third-party stores.

Sweeney says the whole challenge to Google and Apple was his idea and claims he was asking on behalf of the entire Android developer ecosystem.

Should Google agree to Epic’s demands, he says, “We didn’t want a special deal for ourselves... we wanted everyone to have the option of distributing through Android as we had distributing through Android.”

What demands, you ask? Check my very next update to this StoryStream and you’ll see.

Epic’s lawyers have already suggested it was an act of standing up to a bully, and now Sweeney’s explaining it pretty matter-of-factly. “We were about to challenge two of the most powerful companies in history.”

Sweeney says he hired his legal team — the one representing Epic today — right from the beginning of Project Liberty.

Epic CEO Tim Sweeney on why Epic gave up and decided to submit Fortnite to Google Play again after initially skipping Google’s app store.

He says Epic realized that “most users were severely deterred from installing Fortnite” by Google.

But when Epic submitted Fortnite to the Play Store, it contained Epic’s own payment system — and was repeatedly rejected for doing so. Google has shown that Epic agreed to add Play Billing afterward.

It’s known as a man-in-the-disk vulnerability, it’s complicated, but the idea is if a user downloaded Fortnite from the Samsung Galaxy Store, then went somewhere else and installed malware from a webpage, that malware could modify some of the files Fortnite had installed and use that to escalate its privileges to become more malware-y.

He says the bug was only ever on the Samsung Galaxy version of Fortnite, was fixed within two days, and says he’s unaware if anyone was ever harmed by the vulnerability.

We knew this — it’s #95 here — but Sweeney says Samsung offered Epic a special deal. “Samsung agreed to waive its normal 30 percent fee... and charge us just 12 percent of revenue for every transaction it processed,” he says.

Sweeney also says the two-step download process (Fortnite Launcher, then Fortnite) was all about updates. Every week when Epic offered a new version of Fortnite, users would have to download the game all over again if not for the launcher, Sweeney says.

“Epic isn’t seeking to negotiate better Google Play terms; this is driven by the principle and opportunity of open platforms,” he wrote on June 22nd, 2018, explaining why Epic originally decided to skip the Google Play Store when it launched Fortnite on Android.

Epic is setting up Sweeney to reveal how betrayed Epic felt to learn Android wasn’t as open as he thought. Google did something similar the other day.

He’s now telling us why that didn’t happen — including a desire to build a direct relationship with Epic’s customers and to do so without Google taking a 30 percent cut.

(We moved on fairly quickly from the Sony cross-play fight; Sweeney suggested that Sony and Epic actually became closer afterward, with Sony Pictures using the Unreal Engine, Sony Music partnering on Fortnite, and Sony Corp becoming a shareholder in Epic.)

I wonder what Google’s lawyers will do with the “direct relationship with customers” assertion. Document dumps from the Epic v. Apple trial suggest Epic was hugely reliant on Sony; seemingly happy to let PlayStation have that relationship and pay Sony’s fee.

More from Epic CEO Tim Sweeney when we return.

“We were willing to fight them in court if necessary,” says Epic CEO Tim Sweeney.

He’s explaining a June 2018 email he sent to Sony’s Phil Rosenberg, threatening that Fortnite cross-play would happen one way or another.

“Please inform Kodera-san, and please be clear, that Epic will enable full interoperability between all platforms in Fortnite at a timely point in the future ... we are prepared to pursue this course with all available resources, wherever it leads us, and for however long.”

We’re getting to the first point Epic wants to make — that Epic has a reason (that’s not greed) to bring this case to court.

Sweeney says no, you couldn’t play Fortnite across Sony PlayStation and Microsoft Xbox when it first arrived, but Epic “went to battle” to change that. That’s a fight Epic won, I might add — though not all by itself.

Tim Sweeney is speaking hurriedly but seems to be comfortable on the stand — then again, he’s being questioned by Epic’s lawyer, not Google’s lawyer yet. Epic has grilled most of the witnesses it has called since most of them have been current or former Google employees.

“I built the very first version of the Unreal Engine myself between 1995 and 1998,” he says. Everything he’s said so far has been background about what his company does and a rough idea of which companies Epic competes with.

Now, we’re watching a brief intro video to what the Unreal Engine is and what it can do. (Many game developers and some Hollywood studios use it to generate all kinds of 3D graphics; The Mandalorian famously used it for entire digital sets.)