More from Epic v. Google: everything we learned in Fortnite court
He appears to have been commissioned by Epic to analyze the settlement’s modified injunction vs. Judge Donato’s original injunction. “There are some very important pluses, there are some very important minuses,” says Bernheim.
His “main pluses” include:
- “Registered app store program offers low-friction path for stores to get onto users’ phones” (but how does he know it’s low-friction?)
- No fees on competing app stores or the apps they distribute
- Global steering and alternative payment systems, with capped fees
Main minuses?
- Removes the catalog access remedy (Google won’t be forced to offer its apps to other stores)
- Removes the store distribution remedy (Google won’t be forced into store-within-a-store)
- Allows Google to insist on side-by-side billing (app devs would still have to offer Google Play Billing alongside their own)
He’s just been sworn in, and he’s prepared slides; Unfortunately, the screen on my side of the room is dead, so I’ve migrated to the other side, apologizing to several people who graciously moved for me. Bernheim featured prominently during the trial portion of this case.
We’re about to hear the bitter foes-turned-BFFs explain why Judge James Donato should accept their settlement after five-plus years of legal battle. Judge Donato has just entered; Sweeney was on his phone but has put it away. Samat was waiting patiently; he’s got an eye-catching thin beaded bracelet on his wrist.
Judge Donato is now ordering an evidentiary hearing in Epic v. Google, Law360’s Bonnie Eslinger reports from the courtroom. She writes Donato is “not sure the proposed deal will correct Google’s illegal conduct,” and was skeptical that Epic and Google “are suddenly BFFs.”
I thought Google would change its policy — but no, existing payments policy pages haven’t changed. Instead, the news Google can no longer force you into Play Billing is on a separate page, one that doesn’t show up when I type “Play Billing” or “require billing” into the search console.
In the meanwhile, on October 29th, Google will have to change its Android app store in big ways. “While we will comply, it forces us to weaken vital security protections, jeopardizing user safety and the open Android model that supports millions of developers,” writes Google spokesperson Dan Jackson.
[DocumentCloud]
Document here. Google argues it shouldn’t be “subject to dramatically different antitrust regulatory regimes based on diverging opinions from different panels of this Court,” so it’s asking for en banc review, where the full Ninth Circuit (not just the previous three-judge panel) can decide whether it won on appeal.
Here’s the entire court filing:
Google LLC (“Google”) has filed an emergency motion for an administrative stay of the district court’s permanent injunction, entered October 7, 2024, pending Google’s forthcoming motion to stay the injunction pending further appellate proceedings. Google’s emergency motion (Dkt. Entry No. 201) is granted. Google should file its motion to stay the injunction pending further appellate proceedings no later than August 8, 2025.
Google previously had two weeks to begin complying. Now it has three weeks, or longer — depends whether these judges think the full Ninth Circuit or Supreme Court will want to weigh in on the permanent injunction against Google.
As expected, the search giant is seeking to overturn a ruling that would force it to overhaul the Play Store. Google argues that Judge Donato should have never left the decision to a jury, and failed to recognize Apple as a smartphone competitor like another judge did in Apple v Epic.
If not reversed, the injunction and the flawed liability ruling underlying it will directly undercut Google’s efforts to compete against Apple and the iPhone, a competitive dynamic that has spurred innovation and brought concrete benefits to consumers around the world.
Google may not have to open up its Play Store for years, if at all, while it appeals the verdict. Oral arguments are scheduled to begin on February 3rd.
The court order just came in, and I’ve corrected our story. Bolding mine:
The Court grants a partial stay of the permanent injunction pending the circuit court’s resolution of the stay requests Google filed there, with the exception of ¶ 8 of the injunction, which is not stayed.
Paragraph 8 says:
