More from Epic v. Google: everything we learned in Fortnite court
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.
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.
“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.
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.
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.
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.
“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”.
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.
“Could Google charge developers an upfront cost for each download of an app?” asks Google’s attorney.
“We could; it’d be a very bad thing,” replies Kochikar. “Because most users across most apps use it for free — if the developer had to pay for it, it would be expensive and stop innovation from happening from small developers.”
Earlier, she said that Google developed its business model having seen how free-to-play mobile gaming took off: “A very small number of people pay, and yet everyone else gets it for free.”
“Of course not,” answers Kochikar.
Google lawyer Chiu is now coming around to addressing the $147M Google offered Epic to launch Fortnite on the Play Store. Instead of tackling the $147M head-on, though, we’re redefining “contagion.”
“It means someone would make a decision that Play is not attractive,” says Kochikar. “It means we don’t meet our goal in keeping devices in the hands of people.”
Chiu points out that Epic skipped one slide: under the “strategic value” of the deal, there’s no mention of contagion. The first “strategic value” to Google is improving the perception of YouTube Live among gamers.
Kochikar is praising Fortnite on the stand, as Google’s lawyer Michelle Park Chiu asks Google’s VP of Play partnerships some questions about what happened when Epic first considered launching the game on Play instead of sideloading.
Kochikar said the game was making a million dollars a day on iOS at the time. She clarified that she doesn’t have exact numbers.
Activision, Aniplex, Bandai Namco, Bethesda, Blizzard, Com2uS, EA, King, Mixl, Niantic, NCSoft, Netmarble, NetEase, Nexon, Nintendo, Pearl Abyss, The Pokémon Company, Riot, Square Enix, Supercell, Tencent, Ubisoft.
The goal was to pitch all 22 by August 2019.
As of a later document, Google says 20 out of 21 devs signed. I’m not clear whether those were the same 21 or different ones — we also heard that Supercell rejected a deal.
Kochikar is basically explaining that “co-marketing” and “ad credits” aren’t the same thing as handing out a bundle of cash. For example, Google’s ad credits meant “we would spend one dollar for every three dollars they spend,” she says.
And in a 2019 presentation, Google explicitly says it’s not a goal to block other stores:
Non-goals: stop launch on other Android stores (e.g. Galaxy Store)
“It is important to note that this is not an exclusivity program,” reads a line in a Google email discussing the presentation.
Kochikar was not convinced that Activision would actually follow through on a threat to launch its own app store, as of a December 2019 email.
We also just saw charts, prepared by Activision Blizzard King in 2022, it appears, that show the company’s app installs and monthly active users went up and stayed up by a lot after the Google deal.
I’m not sure how the latter helps Google’s case. If ABK got special treatment from Google, wouldn’t it see an uptick? But I also think the rise might have something to do with Call of Duty: Mobile, the biggest mobile game launch ever.
“Was Riot ever prohibited from opening its own store?” Or from distributing elsewhere? On other app stores? On Apple’s App Store?
No, no, no, and no, Kochikar tells Google’s lawyer.
She says that “pulled out the stops” meant taking experts down to LA for three days to convince Riot how much Google cared — “it was their choice after that,” she says. Google didn’t try to explain the $10 million.
Kochikar had similar answers about the Activision Blizzard King deal, which she confirms was done. ABK was pleased — and wanted a renewal.
In a document encouraging Google to fully greenlight the deal with Riot Games, Kochikar wrote:
We pulled all stops (promised them $10M marketing before they signed GVP for example) to get Riot to stop their inhouse “app store” efforts and bring their billion dollar League of Legends franchise and other mobile games to Play (they were most likely to follow Epic’s example). Since then they have pre-registered their games on Play first!
That’s the closest thing we’ve seen yet to Epic’s assertion that Google bribed companies.
“If we don’t do a deal, [Activision Blizzard King] will continue to try different ways to get revenues off of Play. Building a stronger relationship (and we need to believe this deal will lead to that) will preclude investments in alternative ways of monetizing off Play.”
That’s what Kochikar wrote to other key Google partnership leads in December 2019.
And in an old deposition, Kochikar agreed the Project Hug requirement to simultaneously ship games on Google Play was intended to disincentive alternative app stores — apparently not just because Google wanted the games, too.
Epic’s attorney John Hueston is continuing to question Google’s VP of Play partnerships Purnima Kochikar.
She concedes there’s no Motorola app store preloaded on Motorola phones in the United States, nor a OnePlus app store on OnePlus phones in the United States.
Now, we’re seeing an email that definitely looks like Google was only inclined to do a special deal with Activision Blizzard King “if it saves Play.” Is this the evidence we were waiting for? Hmm.
We finished with another sealing request: Samsung wants to make sure Epic doesn’t reveal sensitive info of some sort. Will we find out what kind at least?
Google’s VP of Play partnerships, Purnima Kochikar, is still on the stand; Google hasn’t had a chance to talk to her yet.
We’re looking forward to seeing Google explain why User Choice Billing wasn’t fake, and why it thinks 15-plus-step sideloading is reasonable. (Expect to hear something about safety and security there.)
We just saw the receipts in court. In a proposal that Google’s VP of Play partnerships confirmed was approved by Google’s business council and actually offered to Epic Games, Google agreed to invest $147M in incremental funding over three years “in an X-PA effort to convince Epic to launch Fortnite on Play.”
In a document justifying the deal, Google wrote that “Fortnite’s absence could result in $130M (up to $250M) direct revenue loss with Play” and that there could be a “downstream impact of $550M (up to $3.6B) potential revenue loss if broad contagion to other developers.” But Epic said no.
This was the very first in Google’s internal list of “the most principled arguments” it could make to convince Epic to put Fortnite on the Play Store.
Another argument that Epic’s lawyer didn’t highlight but I spotted below: “the [Play] store will still attract billions of users who will search for Fortnite and run into deadends that aren’t clear how to resolve.”
I wonder if Google wound up making the latter argument!
Those are Kochikar’s words in an email she sent internally, adding, “Do you worry that most will not go through the 15+ steps?”
She wasn’t just talking about how many steps it took to sideload apps. In the same email, she wrote that “the user experience, and the security risks that come with it, is giving us some real concern.”
But she also admitted in an old deposition that the steps were definitely part of it — and that even a big company like Amazon would have trouble distributing their apps outside Google Play.
The context: Google was prepping to convince Epic to launch Fortnite on Google Play instead of as a sideloaded APK.
Epic lawyer John Hueston did quickly present the read-between-the-lines idea that it might be unfair that Spotify can use its own payments system while game developers cannot.
But we’re now looking at a painfully slow walkthrough of how many steps it took (in 2015) to sideload an app on a phone — far longer than it takes a user to actually do this themselves.
I wonder if Google will pull out a phone and show literally just how fast it goes. Still, I admit the sideloading process includes some scary warnings.
Spotify has a special rate, Kochikar agrees.
The BLANK rate on the page is that rate, right? Yes, says Kochikar.
There would be an adjustment to that number, right? “Spotify’s number would be adjusted up or down to reflect Google’s actual costs, right?” Yes.
Oh, but this part is going somewhere: “A games developer does not have the option to use its own payment system, correct?” Yes, except in Korea, she says.