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

The future of Google’s app store is at stake in a lawsuit by Fortnite publisher Epic Games. Epic sued Google in 2020 after a fight over in-app purchase fees, claiming the Android operating system’s Google Play store constituted an unlawful monopoly. It wanted Google to make using third-party app stores, sideloaded apps, and non-Google payment processors easier — while Google said its demands would damage Android’s ability to offer a secure user experience and compete with Apple’s iOS.

On December 11th, the jury ruled in Epic’s favor, finding that Google has turned its Google Play app store and Google Play Billing service into an illegal monopoly, answering yes to every question in front of them about Google’s monopoly power, anticompetitive behavior, and the illegal ties between the different parts of its business.

Follow along with all of our updates below.

  • Sean Hollister

    Nov 13, 2023

    Sean Hollister

    Google’s chief legal officer has been summoned to Epic court to explain himself.

    Something I missed this AM but confirmed with three sources: Judge Donato is not at all happy with Google about the testimony of its employees (including lawyers!) in the courtroom — as Epic has increasingly shown they ignored or joked or seemed unaware of their obligations to preserve evidence.

    So unhappy that he’s considering a mandatory jury instruction — which might tell the jury not to trust Google as much as they otherwise might — unless Google’s chief legal officer Kent Walker shows up Thursday at 3PM PT and can properly explain this mess.


  • Sean Hollister

    Nov 13, 2023

    Sean Hollister

    More Google arguments why contracts are important and good.

    Kolotouros told Google lead attorney Glenn Pomerantz:

    ➼ Offering Android for free helps Google compete with Apple because other companies can focus on building the hardware and apps instead of a whole operating system

    ➼ MADA includes tools that help devs make higher-quality apps

    ➼ Google’s APIs ensure apps are working as users expect

    ➼ These contracts make sure OEMs give you bimonthly security updates — “no less than 6 security updates in a calendar year.”

    Google also pointed out that companies beyond Epic have managed to get their apps preinstalled on Android phones, like Facebook and LinkedIn. I now wonder what Meta, Microsoft, and OEMs paid or gave up for that to happen.


  • Sean Hollister

    Nov 13, 2023

    Sean Hollister

    “They’re much more likely to go back to an iPhone, in my opinion.”

    It’s Google’s turn to question its VP of Android platform partnerships, and as usual, it’s focused on explaining to the jury why all these payments and contracts make sense if you’re trying to compete with the iPhone. This specific Kolotouros answer was to a question about what would happen if an Android app didn’t have Google’s contractually required apps out of the box.

    I’m receptive to this argument: we at The Verge have decried fragmentation and bloatware for years, often asking why OEMs insist on reinventing the wheel by bundling apps that perform worse than the de facto platform defaults. But I didn’t know Google paid so much to keep it from being so.


  • Sean Hollister

    Nov 13, 2023

    Sean Hollister

    “I’ve worked so hard to do good for Google and protect Google... and I get treated so badly.”

    While Jim Kolotouros’ chat history may have been deleted, his disgruntled comment-filled notepad file has been shared in court.

    Comments include:

    “Lack of honesty at Android leadership. Lie to your face and stab you in the back.”

    “I am loyal to Google; not any person”

    “Andy Rubin culture is rampant; but more passive aggressive, and not out in the open”

    “Why am I doing this? To protect Joan the billionaire?”

    “Why am I defending these people?”

    He also mentions protecting “Jamie,” who we’ve heard is his boss, Jamie Rosenberg... and who just so happens to be testifying after him in court today.


  • Sean Hollister

    Nov 13, 2023

    Sean Hollister

    “You can’t think of a single instance where you turned your chat history on, right?”

    “That is right,” answers Kolotouros. Sounds familiar. Wonder how Google is going to explain all this potentially deleted evidence to the jury in a way that sticks. So far, it hasn’t done a great job.


  • Sean Hollister

    Nov 13, 2023

    Sean Hollister

    Samsung’s understanding of Project Banyan was “prevent unnecessary competition on store.”

    “That was Samsung’s frame, that is correct,” says Kolotouros.

    Samsung’s counteroffer included: “Utilize Google IAP as the main payment module on Galaxy Store.” Samsung was willing to give Google a cut of in-app purchases, that means.

    Instead, Google did three other deals with Samsung in 2020 worth $8 billion, Kolotouros agreed. We didn’t get all the details.

    “Play Store will still be distributed and placed on the default home screen for all devices via the MADA, but there is room for Samsung to also add the Galaxy Store,” reads an executive summary. “This saves us $1.0B over 4 years.”


  • Sean Hollister

    Nov 13, 2023

    Sean Hollister

    “Samsung devices are responsible for half or more of the revenue Google receives from Google Play, right?”

    Yes, says Kolotouros.

    That’s why, in February 2019, Google proposed Project Banyan, aka “How do we continue to keep Play as the preeminent distribution platform for Android?” Or at least that’s the first page of a slide deck about Banyan.

    It was a short-lived attempt: after Samsung’s June 2019 counteroffer, Google gave up on it, Kolotouros says.


  • Sean Hollister

    Nov 13, 2023

    Sean Hollister

    OnePlus needed permission from Google to preinstall Fortnite on its phones.

    And Google didn’t grant it. OnePlus would have had to give up substantial Google revenue share just to ship phones with the Epic Games Store / Fortnite launcher app needed to install the game.

    “They needed permission in form of a waiver from Google to do this, yes?” Yes, answered Kolotouros. The only way to preload was to give up its Premier rev share, he agreed.

    Update: here’s a summary of Google’s rebuttal.


  • Sean Hollister

    Nov 13, 2023

    Sean Hollister

    Here is how much revenue Google shares with OnePlus to control its preloaded apps.

    20 percent of “net basic ad revenue”

    10 percent of “net optimized ad revenue”

    5 percent of “net optimized Play transaction revenue”

    15 percent of “net premier ad revenue”

    20 percent of “net Play transaction revenue”

    This is from Google and OnePlus’ RSA 3.0 agreement.


  • Sean Hollister

    Nov 13, 2023

    Sean Hollister

    Here is what Google planned to offer OEMs to preload Google Play and apps:

    As part of an executive summary titled “We are fine-tuning Android Search Rev share (ex Samsung) to protect Google from key strategic risks),” Google CFO Ruth Porat and others were presented with this ask:

    Ask: Spend $2.9B in total in 2020 (+141M to status quo) growing to $4.5B (+$600M) in 2023 across Search and Play for carriers and non-Samsung OEMs to secure platform protections for Search, and Play and critical apps protections on more devices

    Google planned to specifically offer revenue to phone manufacturers to “secure Play exclusivity,” among other things:

    *Offer up to 16% Play rev share to OEMs (16% to key CN OEMs, 4-8% to smaller OEMs) spending est. $35M 2020 and up to $224M in 2023 (steady state) in addition to the bonus tier of current RSA to secure Play exclusivity, Android upgrades, and distribution for critical apps (Comms suite, Pay, Photos, Gmail, Gcal, Discover suite)

    And as we’re seeing now, Google went through with these deals, calling them RSA 3.0.


  • Sean Hollister

    Nov 13, 2023

    Sean Hollister

    “In addition, I worry about Amazon store (200K apps and growing) getting a foothold in Android world.”

    Tanuj Raja, Google’s global director of strategic partnerships, said it was “just his two cents” that a new Google strategy to contractually obligate Google apps might ensure “less consumer experience fragmentation” and help “stem the tide of emerging app stores,” he concluded in a July 2nd, 2014, email.

    Jim Kolotouros, who’s currently on the stand, suggested it wasn’t just Raja’s two cents in a follow-up email — that it was a good idea and that Raja’s “last paragraph is the key.”


  • Sean Hollister

    Nov 13, 2023

    Sean Hollister

    “To your knowledge, every Android smartphone outside of China comes with Google Play, right?”

    James Kolotouros, VP of Android platform partnerships, says yes. But not every phone comes with an alternative app store, he concedes.

    (He’s slightly wrong, as far as we’re aware: Huawei still sells some phones outside China.)

    We’re live from day 5 of Fortnite court in the Epic v. Google trial:


  • Sean Hollister

    Nov 13, 2023

    Sean Hollister

    Epic v. Google day five — it’s MADA time.

    We’re back with a new witness: James Kolotouros, VP of Android platform partnerships. Google attorney Lauren Moskowitz is using him right away to establish one key thing: Google contractually requires every Android device manufacturer to preinstall the Google Play app store on every phone that uses its core APIs — and place it on the default homescreen and keep users from deleting it.

    That contract is called a MADA: Mobile Application Distribution Agreement.

    “Google requires Google Play to be on the default homescreen, as opposed to any other homescreen, because users are more likely to see it and use it than when it’s on any other homescreen, yes?”

    Yes, Kolotouros agrees.


  • Sean Hollister

    Nov 10, 2023

    Sean Hollister

    Google offered Netflix a sweetheart deal to pay just 10 percent on Google Play

    The Netflix logo
    Illustration by Nick Barclay / The Verge

    Spotify isn't the only one that negotiated with Google for special treatment. Netflix did, too.

    In 2017, Google offered Netflix a special discounted rate of 10 percent of its in-app payments on Android — meaning Netflix could keep 90 percent of the money — according to documents and testimony in the Epic v. Google trial.

    Read Article >
  • Nov 10, 2023

    Jay Peters and Sean Hollister

    Sundar Pichai will take the stand in Epic v. Google

    Google CEO Sundar Pichai Testifies In Company’s Antitrust Trial In DC
    Photo by Drew Angerer / Getty Images

    Google CEO Sundar Pichai is set to testify on Tuesday in Epic’s lawsuit against Google. Epic plans to call Pichai as a witness as it makes its case alleging that Google Play is an unlawful monopoly.

    In court documents, Google requested to use a podium in the courtroom on Tuesday, which suggests that Pichai may indeed appear to testify; last month, when he testified in US v. Google, Pichai stood behind a podium instead of sitting because of apparent back issues. (Judge James Donato granted the request for the podium Thursday evening.)

    Read Article >
  • Sean Hollister

    Nov 9, 2023

    Sean Hollister

    Epic v. Google day four is done — but not before Netflix revealed that Google once offered a special secret deal.

    Google offered Netflix 10 percent instead of 15 percent in September 2017 — and Netflix rejected it. I have to catch a train, but I’ll explain more later.

    We’ll be back Monday.


  • Sean Hollister

    Nov 9, 2023

    Sean Hollister

    Google won’t say if companies beyond Spotify got secret special app store deals

    Illustration of the Epic Games logo and Google logo inside of a Google Play logo.
    Illustration by Cath Virginia / The Verge

    After Google confirmed yesterday that it gave Spotify a sweetheart deal on Android app store fees, we were curious if dating company Bumble or any of the other 80 or so developers that have joined Google’s “User Choice Billing” program were similarly given an alternative arrangement or other sweeteners.

    Google spokesperson Dan Jackson would not answer our question.

    Read Article >
  • Sean Hollister

    Nov 9, 2023

    Sean Hollister

    “also just realized our history is on 🙊 can we turn it off? haha”

    Google’s Margaret Lam is becoming quite the smoking gun in the hands of Epic attorney Lauren Moskowitz, at least when it comes to building the impression that Google tried to avoid leaving a document trail.

    Moskowitz is presenting a seemingly unending string of instances in which Lam asks her colleagues to turn off chat history — including one where a colleague repeatedly insisted he was on a legal hold, and thus the documents needed to be preserved. “Ok maybe I take you off this convo :)” she wrote.

    To her credit, it looks like she went looking for better guidance after that conversation. She claims she was given bad advice — “it was an open question” after her first call with lawyers as to what needed preserved — and now understands she did not comply with her legal obligations.

    That seems plausible. But initially, she said a lawyer never explained her obligations after the legal hold.


  • Sean Hollister

    Nov 9, 2023

    Sean Hollister

    “competition legal might not want us to have a doc like that at all :)”

    Not all of Margaret Lam’s chats were deleted — this phrase comes from a 2021 chat, four months after Epic filed its lawsuit against Google. Epic’s trying to show that Google’s lawyers trained its employees to avoid creating evidence.

    Lam says she didn’t get that sort of training.

    Here’s another chat message from Lam to a colleague:

    “Would it be too much to ask you to turn history off? lots of sensitivity with legal these days :)”

    Lam says that her colleague did turn history off, and they had a discussion about Google’s contracts with Android device makers that was, in fact, deleted.

    Lam testified earlier that no attorney explained her obligations to preserve documents after Epic’s legal hold.


  • Sean Hollister

    Nov 9, 2023

    Sean Hollister

    Epic has just shown that partially personal chat messages can contain relevant case info.

    “Like feel like everyone just in 9 hours of meetings a day straight!” began a joking chat thread from Google senior product counsel Emily Garber with a colleague.

    It also included passages like these:

    Oh also Ads team in freaking out about some Play VP escalation over that new policy so let me know if you want to discuss!

    Play originally wanted to prohibit Ads leading to non-Play downloads (!!) but then settled for reasonable intermediate policy basically saying if you’re running ads that take you to download from 3P store, have to disclose!

    We’ve moved on to Margaret Lam, a head of strategy for the Android platform and ecosystem. She’s being grilled about her deleted chats.


  • Sean Hollister

    Nov 9, 2023

    Sean Hollister

    “The sense is we’ll likely *not* want to trigger Spotify agitation and associated noise with a policy change.”

    Now we’re back from lunch, Epic wants to introduce a document that Google wants redacted — apparently, the part it wants redacted is a part about how the “agitation” was “likelier” because of the “EU regulatory environment” — I think? The “likely not” sentence is word-for-word though, I checked.

    We didn’t get to see the document ourselves for more than a moment; we’re mostly hearing it described by lawyers.


  • Sean Hollister

    Nov 9, 2023

    Sean Hollister

    By the way, Epic CEO Tim Sweeney is here again today.

    He was here all day Monday, and all day Wednesday, and he’s been here today (Thursday) since the beginning.

    He’s spent years and countless dollars waiting for his day(s) in court, so I get it. It took 1,180 days for the Google case to make it to trial.

    We’re on lunch break for a bit.


  • Sean Hollister

    Nov 9, 2023

    Sean Hollister

    Google had an “existential question,” and it had nothing to do with Apple.

    Epic has again struck gold by pointing out what wasn’t there.

    The proposal for Project Banyan (the scrapped deal with Samsung) begins:

    Existential question:

    How do we continue to keep Play as the preeminent distribution platform for Android?

    What does that mean? “It means the most important question for Play,” Kochikar says.

    She tried to add that “it’s just one of the questions.”

    Epic lawyer Hueston replied: “Well, actually it’s the only question here on the slide, which you just described as the most important question.”

    Then he dropped the mic — pointing out that Google Play’s “existential question” had nothing to do with competing with Apple and everything to do with maintaining Android.


  • Sean Hollister

    Nov 9, 2023

    Sean Hollister

    Is a company its employees?

    “I have two roles. One is to figure out which apps are missing on Play and try to bring them in, and two, how to fix the apps on Play and make them better,” says Kochikar.

    Google has suggested at least once during this trial that the Google witnesses were employed to act strategically and decisively to win business (and thus may have been seen saying inflammatory things as a result).

    We’re now looking at a Google employee’s suggestion that Play could “partner with Apple to change the industry tide around subscriptions,” and Kochikar defended it this way:

    “This is a very junior person adding ideas in a brainstorming session... was a very junior person on my team”.


  • Sean Hollister

    Nov 9, 2023

    Sean Hollister

    “Did Google want to do this deal with Spotify because it was an agitator, or because it wanted Spotify in the Play Store?”

    I think you can guess Kochikar’s answer.

    But she also pointed out that Spotify “was one of the biggest ad customers as well,” and said Spotify was an important partner because it’s “excellent at investing with us in nacent platforms before they become critical,” like Android Auto.

    Spotify was an agitator, though — and got a special, secret deal from Google.