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

January 11th, 2019, in an email from Gennai to a “Sri” who’s being tasked with a big project:

The project that Mike will talk to you about is our biggest Play priority for Q1, but one that we don’t have the resources to staff (our Play strategy team had a lot of departures into the business).

Essentially, Jamie and Sameer are asking us to consider what Play should do in the face of increasing app store competition on Android, both from OEMs (who are looking to increase services revenue / differentiate devices with content) and other large platforms (like Epic). In that context, they’re willing to consider all options, including changes to our business model, considering paying our OEMs and carrier partners, and more.

We see it as two phases: setting the scene for why it’s important (some scenarios for impact on Play, Android and Google), then onto solution design.

It’s a huge project and one where we’d definitely appreciate the help. Jamie and Sameer have already confirmed they can allocate an hour every other week to keep track of progress and make decisions.

Two impressive questions from Epic attorney Moskowitz:

“During that time the App Store was charging this lower fee and Google wasn’t, you’re not aware of a single developer that pulled out of the Play Store because of this differential pricing?”

And, about the “loophole” where some developers were able to pay 0 percent because they hadn’t adopted Google Play Billing: “Are you aware of any developer that abandoned iOS and came over to Android exclusively?”

He wasn’t aware of either. Epic’s implication is that Google didn’t truly compete with Apple on app store pricing. (Google, mind you, often argues it competes for consumer purchases of phones instead.)

Why did Google seemingly sit on its hands for well over a year after Apple dropped its App Store fee for subscriptions, before eventually matching that rate? That’s what Epic is pushing Gennai to explain on the stand, and the answers aren’t clear.

Google’s primary answer so far is that these things take time, but we’re seeing internal Google executive summaries that at least suggest Google was taking that time intentionally.

I haven’t seen any proof Google was being greedy, but it did seem worried about how developers would react: one executive summary of a meeting between top Play Store execs shows they were so concerned with the “Spotify plan” that changing the Play Store policy seemingly hinged on Spotify.

“Make go-no go pending Spotify status” was listed as a recommendation right under “Change rev share to 30(3mo/15)” and “Change policy for all (with risk mitigation measures and exceptions).” I wonder what those exceptions were.

“We can’t count it accurately,” says Gennai.

“In the order of magnitude, it’s reliable, but I can’t attest to it being correct.”

Even so, at least one Google internal document suggested that switching wasn’t common. “While the number of OS switchers is small, those that switched to iOS tend to be younger and live in urban areas,” reads one line that Epic highlighted for the jury.

“There is more switching behavior between Android OEMs than churn to iOS,” reads another.

In March 2021, a Google document shows 22 percent of Apple iOS users were listed as considering another OS, but only 9 percent were listed as intending to switch, with actual switchers labeled TBD.

For Android, it was 17 percent considering another OS, just 7 percent intending to switch, and again, TBD on actual switching. Google has already argued that small percents of billions add up to big numbers.

“If I love Gmail, and I do, and if I love Google Maps — and I really do — I can buy an Android or an iPhone.”

Gennai says that’s correct.

“You understand that Google makes money off those apps on iPhone?”

“In some instances,” he says.

(I missed what she was driving at this time, I’m afraid, just thought I’d share an interesting moment in the room.)

Epic attorney Lauren Moskowitz is asking a rapid-fire series of questions about the things Gennai does not know — because apparently, his approach to an old deposition was to say he didn’t know things over and over again, and she’s taking full advantage.

So he’s seemingly being forced to admit he doesn’t know various facts and figures and processes now — like how often Google Play is preinstalled on phones or the quantity of apps on Play versus the Amazon Appstore.

She also tried to suggest she ignored the 3.4-star rating for the Move to iOS app he demoed, choosing to focus on its 100 million downloads instead of its 180,000 reviews, and points out he skipped steps in his demo.

“You skipped messages for example?”

“I did, yes,” he admits.

Judge Donato gets another laugh (he says it’s just how the rules of evidence work in this particular instance).

Here’s what’s at the top of that document, written by Gennai:

For a variety of reasons, the long-standing growth and (potentially) fundamental business model of Google Play is under pressure in 2019. This is being driven by a confluence of factors, including:

The size and margins of the market are making it attractive for new entrants, either drafting on existing distribution (OEMs) or competing on rev-share rates (Epic)

A meme is emerging related to the “app store tax”, unfairly comparing the app store revenue share to basic payment processing and putting pressure on Play’s 30%. Larger developers who have more standalone capabilities (and other differentiated content) are leveraging this discontent to attempt to negotiate differentiated rates or go-it-alone.

These problems are very real and playing out in the market in 2019. Epic/Fortnite, Galaxy Store, conversations with large developers at GDC, etc...

Combined, these two risks could have major effects on Google Play’s business in the near term...

We propose to solve these challenges through a combination of tactics that are required in conjunction:

Firstly, competing on price (rev-share) is prone to be a race to the bottom and is not necessary across the board (only to the most strategic partners where loss of the titles would disproportionately affect the business). We are interested in solving for this in a way that accomplishes two goals simultaneously: (1) lowers the effective rev-share of Play while maintaining the prevailing rate, and (2) returning this value in a way that accrues value back to Google. This is Hug.

Secondly, the defense of Google Play as the preeminent Android app distribution store can be focused around major points of distribution, particularly in aligning Android’s largest OEMs around Play as an app distribution source. There is also a user privacy / security benefit of doing this. This is Samsung (and maybe Huawei).

Finally, the prevailing 30% rev-share rate may not be sustainable over time, and it’s in our interests to innovate in that regard before the decision is taken away from us. There are options that are likely Googley, good for the ecosystem, and allow us to continue to derive the right level of value from our investment. This is the business model project.

Why did he write the “competing on price (rev-share) is prone to be a race to the bottom” bit, asks Google’s lawyer.

“If that that were to become known, other developers would come to us to do the same, and... negotiate it down, and that would play out badly for us,” said Gennai.

Correction: I originally missed a bunch of text in the middle of the document; it has now been added.

Gennai on the “Move to iOS” app — we just watched a taped demonstration of data transfer from an Android phone to an iPhone that took less than three minutes.

Google’s point seems to be that switching between Android and iOS is not that difficult, and I largely agree, but not because of what was just shown. This demo doesn’t show lots of other switching costs beyond initial setup (including carrier-gated things like making visual voicemail work properly), and I would argue it’s harder to go from iPhone to Android than the other way around.

“Developers were working with us in partnership and they were offered a 15 percent revenue share as part of that,” says Google’s Paul Gennai, referring to Google’s Living Room Accelerator Program (LRAP) and parallel ADAP program for audio apps.

What about subscription devs who were paying 0 percent back in the day?

There was a component of our billing policy at the time that was likely confusing and could be misinterpreted; there were developers selling goods and digital subscriptions at the time that were not using Google Play Billing.

“We knew we were going to have to come around and correct that problem,” he adds.

This does not explain Spotify’s current 0 percent rate, or its special offer to Netflix, or other deals we’ve seen in court, though.

But it is a defense for another point Epic has made about how Google was not enforcing Play Store Billing evenly.

Google’s Paul Gennai seems to be here to demonstrate that Google isn’t just pocketing its Play Store service fee — it’s investing in the Google Play store because it knows it needs to compete with Apple. It’s important when consumers “choose which phone they’re going to buy,” he says.

“Why did Google choose to invest in the Play Developer Console the way you described?” asks Google’s attorney Jonathan Kravis.

“Our business model was aligned with the business model of developers, when they succeed, we succeed,” was the core of his answer.

Now, Google’s showing that Google didn’t just copy Apple App Store features — Google introduced promo codes and pre-registration for apps first, he claims, and quickly followed Apple with apps for kids and a subscription game library. The reason: “We wanted to stay competitive to Apple’s App Store.”

I’ve been wondering for many days — what will the members of the jury actually be allowed to decide? They’re not going to define the relevant product market all on their own, right?

I can now give you a slightly better idea — last night, Epic and Google submitted dueling proposed jury verdict forms (pdf). As you’ll see right away, Epic is trying to avoid defining the market, while Google is asking jurors if Epic proved that an “Android app distribution market” and an “Android in-app billing services market” exist to begin with.

It can’t be both ways: only one final judge-edited verdict form will reach the jury.

We’ve nearly spent a fortnight in Fortnite court.

Here’s how we ended the day: Judge Donato told Epic that he doesn’t believe any of Google’s conduct reaches the standard of being “per se anticompetitive.”

“I’m perfectly fine with rule of reason but I’ve having trouble saying they’re so egregious on their face,” he said.

Epic lead attorney Bornstein says he’s only seeking per se for the Project Hug agreements with Riot, Activision, and Supercell, and the judge says he’s willing to hear more but isn’t inclined to take this away from the jury. He thinks we’ll be deciding everything under the rule of reason standard instead, partly because of a Circuit Court decision (presumably referring to where Epic v. Apple went on appeal.)

Judge Donato also wanted to know where Epic thought we’d land on the relevant product market, and Bornstein said he’s handling it differently than in Apple because of Google’s very different structure of business relationships. The judge wound up saying, “I don’t think aftermarket concepts are in play here.”

I am not a lawyer or even a legal reporter, so I’m not going to translate any of this for you on the spot. It’s not worth getting it wrong.

Motorola’s Christensen has testified that Motorola is the one that chooses to enter into a Mobile Incentive Agreement (MIA) with each new device, and it can apply for an exemption if it really wanted to preload another app.

“Even if it didn’t get the exemption, Motorola could still enter into the preload deal, that would just reduce the percentage of devices in the MIA portfolio, right?” asks a lawyer.

“That’s a fair way to say it,” replies Christensen. (So Lenovo is simply getting paid less for fewer devices in compliance, I believe I’m hearing.)

We are done with testimony for the day but listening to the judge talking to both lawyers about what’s coming next.

Christensen has been asked about the company’s “Pure Android strategy,” where the company tends to put more of a stock Android / Google experience on its phones rather than reinventing the wheel by creating its own apps.

“The primary benefit had been for us to differentiate ourselves compared to the likes of Samsung, for example,” he says.

Later, he was asked if Motorola had any non-contractual reasons to avoid preloading another store. “The most common reason that exists is because of redundancy for consumers,” he says. Obviously Motorola can’t pre-load the iOS App Store, and “most stores available as a third-party store are more limited,” he says.

“So we think it’s in the consumer’s best interests to have one.” Google Play is that one.

A document titled “Impact of non-compliance” lists different payments for different percentages of Motorola phones that comply with Google’s rules under its Mobile Incentive Agreement (MIA), ranging from hundreds of thousands of dollars to multiple millions.

In 2020, if over 95 percent of Motorola devices were compliant, parent Lenovo would receive $5.3 million, Christensen explained.

For 2021, the amount was $6 million.

One of the requirements for compliance (bolding mine):

We are prohibited from:

Pre-loading our own or third-party apps that are similar to theirs including: wallets, payment apps, browsers, search providers, other assistants like Alexa, or apps that download other apps such as Digital Turbine or another app store

This may be a good find for Epic, because it appears to be a direct payment — not a complicated deal that involves co-marketing or revenue share. Even though it’s similar to what Google requires with its RSAs, it looks more like Epic’s argument that Google pays some companies not to compete. Not every OEM had an MIA — the Department of Justice alleged that LG and Motorola were the ones.

Christensen says he doesn’t think Motorola would still be in phones if not for Android because the company was struggling financially after attempting to support multiple operating systems simultaneously, including Symbian and Microsoft (presumably Windows Mobile).

“To consolidate our engineering efforts into fewer OS solutions was definitely the priority at the time,” he says.

Earlier: “I don’t think we’re able to license iOS from Apple, so Android is what we end up shipping.”

His LinkedIn lists him as “Executive Director, Software Product Management and Partner Management,” but that’s a recent title. Back in 2008, he would have been “Director, North America Software Planning and Systems Engineering, Mobile Devices,” and thus been there for the beginning of Motorola’s relationship with Android.

(Motorola arguably produced the first breakout hit Android phones with the Motorola Droid line. The first Android phone was an HTC device, the HTC Dream, which was branded as the carrier-exclusive T-Mobile G1 in the United States.)

He says he was responsible for the revenue sharing agreements between Motorola and Google, in a taped deposition we’re watching from July 2022 — and they were initially about a share of Google’s search revenue, he says. Google has tried to suggest that its search revenue share (with Apple, anyhow) isn’t relevant to this Android case.

“No, I couldn’t be making that statement,” says Miner.

And with that, Miner’s purpose in the courtroom for Google has largely ended? Google asked one last question — Miner said he believes Android would have been confusing if there wasn’t “a single place for people to publish their apps.”

He has stepped down from the witness stand, and we’re on break.

Epic attorney Yonatan Even began by throwing Miner’s words back at him from 15 years ago — back when he told a Harvard University audience that he believed “monopolistic control” was “not necessarily a good thing” and that Android wanted “even playing fields.”

“If we don’t excel, shame on us, what we don’t like is when someone else has a competitive advantage,” he said.

You may be able to find the video right here — the place and year match up, but I can’t seem to download it on courtroom Wi-Fi to be absolutely sure.

In an old deposition, Miner said under oath that he “maybe” thought the intent was that a level playing field should apply to Google Play when other developers build app stores, too.

Android co-founder Rich Miner says he helped cellular carrier Orange build a walled garden of apps. That’s where he worked before he joined the original Android team, and he said it led to user confusion about where to go for apps.

But carriers “eventually realized and heard us when we talked about the ability to have one place worldwide that was collecting apps and would have the ability to distribute on their network,” he says.

I imagine getting 25 or 30 percent of Android’s app store revenue didn’t hurt, either.

Google has been trying to explain from the beginning that the Play Store’s fee is the primary way Google gets paid back for its $40 billion investment in Android over the years. (It also gets advertising revenue, of course.) It also wants credit for opening up the app market from the tight grasp of cellular carriers.

We were supposed to hear from Andy Rubin, the embattled “father of Android,” but we haven’t had any sign that his taped deposition will wind up getting played in court.

Right now, he’s just saying some things about why the early team wanted Android to be designed as an open platform and explaining how hard it was to get an app onto Verizon’s app platform back in the day.

Rich Miner on the early days of Android, pre-Google acquisition. I’ll have to check whether that’s the founding story or the founding myth, as some of the Valley’s famous garage startup stories aren’t quite accurate.

“Phones and mobile networks were boring, the internet was all the rage” was the idea, and Android started talking to Google just in hopes of an endorsement, he said.

He’s still at Google, he says, and came to be part of Android because he also invested in Danger, Andy Rubin’s startup that was responsible for the Hiptop (which you may know better as the T-Mobile Sidekick).

Full disclosure: my dad worked for Danger back in the day, and I used Sidekicks to type all my college notes and email them to myself.