More from Epic v. Google: everything we learned in Fortnite court
Where by “Vjeran” I mean this guy, our Verge supervising producer and my dear collaborator on gadget videos.
I really do use the blue cushion every single day in court. Keeps this laptop from slipping off my lap.
We’re going on lunch, but Google’s final question before Rasanen was dismissed was a pointed one — she was asked to tell the court what she saw on the final slide Epic showed.
It was a presentation titled “What we worry about.” She said: “There’s an Apple logo on that phone.”
Epic had previously pointed out that several of Google’s presentations about competition made no mention of Apple.
Partners agreed “not to agitate”? That seems wild if true — it’s the language in an email from former Google Play boss Jamie Rosenberg, though he wasn’t asked about it Monday on the stand, and we didn’t really get to the heart of it now that Epic is questioning Rasanen again.
Epic, by the way, did not miss that paragraph about the “world of pain.” Hueston made sure the jury saw it and heard it.
An “Android Brand Health Report” showed a “concerning trend for security,” with a declining number of people reporting they thought Android phones were secure: from 74 percent in March to 70 percent in June.
“Which store is a safe place to get apps?” Android declined from 78 percent to 75 percent, while iOS went up from 80 percent to 84 percent in three months. I wonder if Google had anything related to security around that time that made the news?
Rasanen points out that because Android has over 3 billion phones “out there in the world,” 6 percent of switchers represents “huge numbers of people.”
“6 percent may seem like a small number, but out of 3 billion...” she does the math, seemingly instantly, and says it’s 180 million people potentially switching.
On the giant spreadsheet we saw earlier, Google points out a different number than Epic did: nearly 14 percent of Android users switch to iOS in the United States specifically, according to Google’s internal estimates.
Part of an internal Google email about how to handle developers worried Google Play Billing was making it too easy for users to cancel subscriptions:
he seems to be upset that we’re allowing our users to easily manager their subs vs. being locked into their product, which is not putting their users first.
Another Googler replied:
this is actually incredibly important to our business to respect user intent. We believes it yields better long term outcomes for developers as well when they allow their users choice when it comes to their products, even if that is leaving.
Here is part of that same 2018 email that Google did not try to highlight for the jury, for obvious reasons:
lastly, we then compute a 30% rev share on top of these numbers and we’re looking at a world of pain
It’s been tough to get a read on the jury so far in this case, but I think it’s fair to say many of them don’t find Google Play Billing exceptions very riveting.
One yawned. I saw another looking down at his hands. Some were looking around the room, etc. Maybe they’re just hungry. We’re 23 minutes away from lunch.
The jurors have typically been extremely attentive. This is the first time in seven days I’ve noticed otherwise.
Google Play biz dev and developer partner Kirsten Rasanen, explaining how Google built some of its language around mandated Google Play Billing for in-app purchases and what did count as an exception. (Physical goods, for example.)
She claims fairness was another reason: it was a firm rule because Google didn’t want to disadvantage smaller developers.
There was also a suggestion that security was a reason, that Google wanted to be responsible since it was effectively selling the apps, but I don’t follow how that logic applies to mandating GPB. Maybe I missed it.
I did it recently, and it did take a while to get my phone set up just the way I liked, but I had the essentials ready to go on Android (coming from iPhone) pretty fast. Same was true when I switched the other way in 2018.
I switch phones once a week — here’s how I manage the chaos
Google is starting its cross-examination by being the friend Epic wasn’t. Rasanen explains that her job was to work with developers not only to “help adopt our products and features and hear their feedback” but to make sure “we can understand the developer’s perspective.” To make sure they were being heard, she says.
Epic asked if that was true, and Rasanen said yes, that’s what the spreadsheet shows.
Presenting her with all the numbers, Epic attorney Hueston asks: “The studies we’ve seen show that people buy phones for reasons that are primarily other than the App Store, right?”
She waffles. He presents a new slide titled “Top reasons for smartphone purchase,” a list with maybe a dozen reasons including these top four:
I liked the smartphone brand
My prior smartphone stopped working or slowed down
The price of the smartphone was afffordable
It was a good deal
“Nowhere in that list is the app store identified as a reason for purchasing the smartphone, right?” asks Hueston.
She answers: “The app store, no.”
If they had an iPhone, iPad, and Apple TV, according to Google’s survey, 98 percent of them weren’t considering a switch.
I didn’t catch when this survey was from as we paged around quite a bit, but Epic showed us internal Google studies from both 2021 and 2020 to make its larger switching costs argument.
“While owners may consider the other OS, the intent to use another OS is incredibly low, potentially driven by high switching costs and/or loyalty to their existing OS,” reads part of an internal Google study from June 2020.
We’re getting a whirlwind tour of several studies now — depending on the date, they suggest that just 9 percent, 12 percent, or as low as 6 percent of surveyed Android users would switch. (Even fewer iOS users were switching to Android, they suggested, at 9 percent, 12 percent, and 6 percent, respectively.)
One study did show that “roughly one-fifth of iOS and Android are considering another operating system for their next purchase,” but Epic has already somewhat defused that counterargument:
“And you’ll agree with me that people say they’re considering lots of things they don’t end up doing, right?” asked Epic’s lawyer.
“Yes, I agree with that,” laughed Rasanen.
This is Epic’s argument, not an old Google document, as laid out for the jury in a “demonstrative” slide:
Cost
Time: people keep their phones 2.8 years on average
Switching phones = switching ecosystems
It feels a lot like learning a foreign language
Transfer and set up involves an average of 40 steps and 9 hours
There is no one place for help
A successful transfer of data does not equal a successful switch
Losing data
Apps/feature incompatibility
Phone spec inequality
Users are attached to key features
Users’ technical acumen
Committed to other devices in the ecosystem.
So far, Rasanen has only been able to argue with “time.” “There are reasons people don’t switch, but time isn’t a reason in and of itself,” she said.
And it’s relying partially on an old internal Google study, prepared by Rasanen, if I heard correctly. Here’s the executive summary:
Switching phones = switching ecosystems
You not only have to learn how to use a new OS, but completely new platforms around it.
It feels a lot like learning a foreign language.
From iOS to Android; from App Store to Play Store; from iTunes to Play Music / Google Music / etc; from iOS coreApps to infinite choices.
It really IS NOT as easy as 1, 2, 3.
Transfer and set up involves an average of 40 steps and can take as long as 9 hours if you use the cloud.
There is no ONE place for help.
It needs to be clear and easy to find the right switching resources. We have 4 websites currently.
A successful transfer of data does not equal a successful switch.
Switching happens in 3 phases. Prep work, data transfer, and then adapting to the new phone.
It’s an individual experience.
Because what’s on our phone is unique to us, the process and what works/does not work is is also individual.
Epic is not being a good friend back to Rasanen, though. It just pulled up an old deposition where she seemed to admit she wasn’t actually “in the developer’s corner” the way a Google developer-facing presentation portrayed.
Today, she says, “I would disagree with the characterization that I didn’t want to have a fair developer ecosystem.” But after seeing her old deposition, she clarifies, “My job wasn’t to ensure fairness.” She says it was to help developers create great apps and make sure they follow Google’s policies.
She’s in a corner, that’s for sure — the one Epic just painted her into.
Wrote Rasanen:
This is a risk in so far as YT sets an example for the developer ecosystem so if we can get them looking like GPB, it eliminates the “but Google’s own apps aren’t using it...” argument and just makes things a bit cleaner.
“We considered that, yes,” she says on the stand. It’s not clear if Google went through with it.
Epic lawyer John Hueston is repeatedly trying to drive home that Google preferenced its own apps, including YouTube and YouTube Music.
Google has already conceded it didn’t migrate YouTube to Google Play Billing for many years after it started asking developers to switch.
Kirsten Rasanen is Epic’s new best friend, as far as her emails are concerned — in 2018, she internally stated Google Play was not how users were discovering new apps at all.
“Users DO know what the Play Store is and they actually use it... but only for installs,” she wrote in bold. “But they don’t use the play store for any app discovery at all.”
“Play Store offers little value for app discovery,” she repeated later. Based on what I’m seeing, I expect Google will argue her conversations with colleagues were based on anecdotal reports (from friends, family, individual users).
Payments: GPB still hasn’t driven incremental value that justifies the increased revshare
• Netflix also working with the same payment providers and operators as Google is
• Netflix’s fees are 1-3% with these partners; with GPB it’s 10% and no incremental revenue
• Google is expanding Android Pay — “that fee structure is more rational for us”
• With time it will be easier to transact via browser given what Google is doing on identity, payments, etc [...]
Based on a survey of developers Google conducted in November 2017, the “key concerns and arguments revolve around”:
Platform Neutrality: A stated “principled” argument that platforms such as Google Play should be neutral [...]
Product concerns: Spotify believes that their platform has capabilities that GPB lacks. We are awaiting their specific feedback on product gaps
User Relationship/Data transparency: The lack of control that would result form using GPB instead of their own platform (billing platform capabilities, ownership of customer relationship, deep knowledge of user behavior) concerns Spotify.
The email goes on, but I didn’t have time to copy down the rest.
If you’re still playing our bingo, mark “Google Play Billing” and “IAP” on your card.
That’s Judge James Donato, telling Google in no uncertain terms that Google chief legal officer Kent Walker better show up tomorrow at 3PM and address the litigation hold, deleted chats, and fake privilege situation.
“The CEO, appropriately in my view, said ask Mr. Walker,” says the judge. But the buck stops with Walker, he suggested.
Yesterday, Judge Donato officially ordered Google to do this: “Google is directed to provide the Court with all copies of the litigation holds issued in this case by November 15, 2023.”
We’ll be hearing from David Kleidermacher, a VP of engineering at Google who should address security, after Kirsten Rasanen, a Google director of partnerships.
There may also be video deposition from Amazon midday, Epic says. No mention of original Android boss Andy Rubin.
Judge James Donato is going over logistics now, trying to make sure the trial will run on time. Epic and Google have a disagreement over Google Play’s net profit margin. “Doing it 100 percent your way, what is the net profit margin?” the judge asked Google.
A man from Google’s team immediately pulled Google lead attorney Glenn Pomerantz aside, whispered in his ear, and then Google deflected the question. “They’re relying on numbers and margins that clearly don’t count any Android costs,” said Pomerantz.
We’ll hear from expert witnesses on Monday and Tuesday.
A few tidbits from yesterday I forgot to mention:
💰 Google $147M offer to Epic might not have needed CEO approval; “Google CEO approval is required if total commercial commitment value exceeds $150M, and audit committee required,” I spotted on a slide in the Business Council presentation.
🖋️ It also read “Approval by Sridhar Ramaswamy and Philipp Schindler required.” Those would have been Google’s heads of advertising, commerce, and business.
💪 An imposing man (bodyguard?) walked Sundar Pichai to the bathroom.
I’m not sure who’s coming as witnesses tomorrow — but we’re still waiting on a video deposition of Andy Rubin, one of the original co-founders of Android and its big boss for years. He was Hiroshi Lockheimer’s boss, too.
Epic lead attorney Bornstein raised the idea of switching costs between iPhone and Android, suggesting that Lockheimer once said it was “pretty impossible” for anyone with an Apple Watch to switch to Android — that internal Google studies show 97 percent of people with an Apple Watch won’t switch.
Lockheimer basically shrugged.
Epic tried to suggest the folding phones Lockheimer toyed with on the stand were just hardware innovation, not software. Lockheimer (rightly, based on what I know of Android’s many changes to support foldables) said no.
Epic asked Lockheimer which came first: tipping off reporters, or the bug report going live? It seems pretty clear from evidence we’ve seen that the bug report went live first, even if Google planned it that way.