Sean Hollister

Epic’s lead attorney is striking through Google’s “justifications” one by one for its alleged monopoly power over Android: “Apple”, “Fragmentation”, and “Security.”

Epic’s lead attorney on Google’s optimal market definition for this case, the one that Professor Tucker brought up and the judge was broadly skeptical of in court.

The screens were off for less than a minute before Bornstein began talking about (what’s admittedly the elephant in the room): Google’s deleted chats. The dark screens were a visual aid.

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.

“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.”

“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.

Epic lead attorney Bornstein on the challenged idea that a billion Android users have enabled the unknown sources sideloading flow.

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.