More from Epic v. Google: everything we learned in Fortnite court
At the beginning, he had the jury’s full attention — they were looking directly at him. Now, they’re looking down at their monitors, up, around, and one keeps closing his eyes, as Epic tries to cram in lots of evidence we’ve seen before at the same time.
It seems he knows this: “I want to go dark for a second,” he says, turning off the screens.
“People who took the Hug money had to launch only on the Google Play Store,” Epic’s Gary Bornstein begins, before stopping himself and saying that the Project Hug agreements that Google secured with game developers required them to ship simultaneously on other stores instead. “Sim-ship” isn’t nearly as compelling an argument for Epic — but it did find one Google exec’s email admitting that it was intended to disincentive other app stores.
“Some witnesses tried to tell you that contagion meant apps would leave Android and only be on iOS. That’s nonsense,” says Epic’s lead attorney. “There’s no single app that’s given up the 3 billion potential users on Android just to be on IOS.”
Having been in the courtroom every day, I have to agree: Google knew full well that the “contagion risk” it feared was from other Android app stores cutting into Google Play.
“Samsung knew what it meant,” says Bornstein, pointing out that Samsung documents show it judged the proposal as designed to “prevent unnecessary competition on store,” But though Bornstein admits Google never went through with Project Banyan, he’s attempting to show the jury that Samsung and Google were closer than competitors.
We’re looking at evidence we’ve seen before, like former Google Play Store head Jamie Rosenberg’s assertion that “any sort of rev share arrangement with Samsung is that we’d achieve structural alignment on business model.”
Epic lead attorney Bornstein on the challenged idea that a billion Android users have enabled the unknown sources sideloading flow.
“That sounded great. I wrote it down too,” he told the jury. But he says it isn’t true.
I suggested harm might be the hardest bit for Epic to prove, and Bornstein is tackling that right away by suggesting Google’s unknown sources sideloading flow kept Epic’s Fortnite downloads low. I don’t know if Epic proved that either, but this was a good quote from Bornstein today: “Google knew this was a problem, internally they knew what was happening to the Amazon app store. They knew the hurdle was too high.”
Well, technically now Epic’s attorney is saying “bribe and block,” but he’s returned to his opening argument. I’m not sure Epic proved that its Project Hug deals were outright bribes, but he’s sticking to his guns.
On “block,” he’s turning back to something his expert economists brought up, saying, “To be anticompetitive, the competition doesn’t have to be blocked entirely, it has to be impaired or limited in some way.”
Epic lead attorney Gary Bornstein’s mini-podium is pointed directly at the jury — he’s maybe 12 feet away — and he’s telling the jury that Google has become the dominant distribution for Android apps because it’s a monopoly. He says its market share makes that clear.
Epic has three claims:
monopolization
unreasonable restraints of trade
tying
He says he wants the jury to think about “power and conduct”:
“What power does Google have in the relevant market, and what conduct has Google engaged in?”
After a fortnight in Fortnite court, we’re in the home stretch: each side will make its closing arguments. Epic goes first.
Follow along live:
See you soon.
Finally, Epic must establish that its injury is the type of injury that the antitrust laws were intended to prevent. This is sometimes referred to as “antitrust injury.” If Epic’s injuries were caused by a reduction in competition, acts that would lead to a reduction in competition, or acts that would otherwise harm consumers, then Epic’s injuries are antitrust injuries. On the other hand, if Epic’s injuries were caused by heightened competition, the competitive process itself, or by acts that would benefit consumers, then Epic’s injuries are not antitrust injuries and Epic is not entitled to a verdict that Google has violated the antitrust laws.
In summary, if Epic can establish that it was in fact injured by Google’s conduct, that Google’s conduct was a material cause of its injury, and that Epic’s injury was the type that the antitrust laws were intended to prevent, then Epic is entitled to a verdict that Google has violated the antitrust laws.
I don’t remember Epic spending a lot of time on how it’s been injured during this case. Certainly it didn’t have opportunities it might have had... but that may not be enough. The jury instructions talk about “material injury.”
The judge just read page 45 out loud:
You may find that a tying arrangement exists between the Google Play Store and Google Play Billing if Google refuses to distribute Android apps through the Google Play Store unless Android app developers agree to use Google Play Billing to facilitate the sale of digital goods or services in those apps.
I think it’s pretty clear from Epic’s case that it foreclosed competition, too. But was it justified? If so, Google’s in the clear on this particular claim. Pages 48–49:
If you find that the tying arrangement serves a legitimate business purpose of Google, and that there are not substantially less restrictive means reasonably available to achieve that purpose, then you must find for Google and against Epic on the tying claim.
Another jury instruction:
The essential characteristic of an invalid tying arrangement is a seller’s exploitation of its market power over the tying product (app distribution services) to force a buyer to purchase the tied product (in-app billing services) that the buyer might have preferred to purchase elsewhere.
We’re on page 43 now, which lays out what Epic would need to prove to show Google illegally tied the Google Play app store to Google Play Billing.
That’s just a fact — one the court felt was necessary to point out to the jury in no uncertain terms.
“You should not infer or conclude that doing so is unlawful in any way,” reads the judge.
Judge Donato took his time with those last three words “is not unlawful” and looked directly at the jury the whole time as he did so.
We’re going over how the jury will decide whether Epic has proven a relevant antitrust market, and where, and if Google has monopoly power there, and whether it did anticompetitive things if so, and whether it was potentially justified if so, and so on. He’s looking up at the jury every so often, but most of his read is even and bland. Not those three words.
Google has argued since the start that it made normal business decisions to compete with Apple, and its expert witnesses suggested that Epic hasn’t presented a compelling case that it could or should have done otherwise.
Judge Donato just read this bit aloud, with no obvious reaction from the jury:
You have seen evidence that Google Chat communications were deleted with the intent to prevent their use in litigation. You may infer that the deleted Chat messages contained evidence that would have been unfavorable to Google in this case.
The judge did not change the tenor of his voice, though he’s personally pissed about this whole thing:
Every juror has their head down with a copy of the jury instructions. None are looking at the judge as he reads them aloud, save for a quick glance or two.
Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls.
On expert witnesses, such as the various economics professors we heard from:
Such opinion testimony should be judged like any other testimony. You may accept it, reject it, or give it as much weight as you think it deserves, considering the witness’s education and experience, the reasons given for the opinion, and all the other evidence in the case.
I just uploaded a copy; you can read along right here if you like.
One of the first notable jury instructions:
Epic did not pay Google $398,931.23 in fees that Google would have received if transactions processed using Epic’s payment solution were instead processed through Google Play Billing. On the basis of these stipulations, you will no longer be asked to address Google’s counterclaim.
That’s just a fact now: Epic owes that money if its contract with Google was valid.
[DocumentCloud]
Judge James Donato has quite a smile on his face today; I don’t think I’ve seen him grin so much since the trial began.
We’re about to read jury instructions; Judge Donato says the jury will be here from 9AM to 5PT until they reach their verdict. Until now, days have typically ended at 3:30PM PT.
Judge Donato had some clarifications for both parties about how he modified the jury instructions and verdict form (for example, having the jury stop right away if they don’t find that Epic has proven the existence of a relevant antitrust market in this case).
But apparently “the jury is still trickling in,” so we’re going to pause before we come back with jury instructions and closing arguments. Judge Donato estimates it’ll take about 45 minutes to read through jury instructions, too, and you can read those all by yourself, so if you wanted to come back in an hour, I wouldn’t be offended!
As I’ve mentioned, the exhibits from this trial won’t be made public until 10 days after the verdict, and we’re now hearing there are as many as five that won’t be available in full at all. Hopefully I copied down anything relevant when it was shown!
I suspect this includes some of the Spotify numbers — though we already got some flabbergasting ones.
I’m here bright and early in federal court to hear the closing arguments for each side. Last week, Google CEO Sundar Pichai and Epic CEO Tim Sweeney decided not to settle, so we’re full steam ahead with the jury. I hear it’s possible we could even get a verdict today.
Need a catch-up? Here are the top 20 things we learned from a fortnight in Fortnite court.
Here we go, starting with logistics:
They met for an hour on Thursday, lead attorneys for both sides told Judge James Donato in a filing (pdf) this evening, following an earlier settlement discussion between Sweeney and Google’s heads of partnerships and product management for Android that was ordered by the court.
“These meetings did not result in a settlement.”
Also new: This is the final verdict form (pdf) the jury will use to decide Epic v. Google.
A fortnight in Fortnite court
Final jury instructions are here, as is the judge’s own near-final verdict form. Notably, he will say:
You have seen evidence that Google Chat communications were deleted with the intent to prevent their use in litigation. You may infer that the deleted Chat messages contained evidence that would have been unfavorable to Google in this case.
More notably: he intends to let jurors decide where they believe Google has monopoly power, if any. There’s a big white write-in box waiting for them.
He will also personally decide if Epic’s contract with Google was legal — if so, Epic will pay $398,931.23 for sneaking its own payment system into Fortnite regardless of the jury’s verdict.