Sean Hollister

“We should have done this two years ago,” said Oliver.

“Even today, 7 years later, Apple still has not implemented this feature int he Apple App Store, has it?” asks Epic’s attorney. Oliver starts to say no, because it has to do with paid apps (and presumably is no longer needed to compete with Google as free-to-play apps are the norm), but gets cut off. He says no, Apple has not.

In 2018, Apple also internally forwarded this Android Police story about how “Google Play Store shows you the streaming apps that have the movie or show you’re searching for.”

Apple’s Matt Fischer, head of the App Store, wrote, “I’ve always wanted the ability to search for content within apps (specific movies, music, etc. ) and show the relevant search results.”

“Google was going to charge 15 percent for subscription transactions starting in year one of the subscription... Apple still has not adopted that policy itself, has it?”

Apple’s Oliver had to agree. He also agreed it sounded correct that Google didn’t implement a subscription discount policy until a year and a half after Apple, a point that Epic has continually attempted to drive home during this trial, as evidence the companies didn’t feel competitive pressure from each other.

He agrees that Apple and Google’s stores compete for “the highest quality apps,” as Google put it, and on “the safety and security of the user experience.“

Apple nominally charges game developers the same 30 percent as Google, but Oliver says “the vast majority of game developers are eligible for the small business program... they would be able to pay 15 percent.” It applies to developers that earn less than $1M in annual revenue — so we’re talking about the long tail, not game companies at the scale of Epic.

He’s Google’s witness, and Google’s wrapping up questioning with him. The part I caught when I came in was mostly background on the fees Apple charges and why, but... see my next QP:

But Judge Donato is still inclined not to do per se, bringing up an analogy about an “entrenched medical supplier that has a monopoly share of pulse oximeters,” which, he revealed to laughs, was not a theoretical example but a real case he was involved in.

As I wrote earlier, Epic wasn’t even trying to argue it didn’t breach its contract, and it appears that Epic is formally conceding to its breach as well — Judge Donato says we’re going to eliminate the breach of contract jury instructions and have the jury decide “how much, if anything, that breach is worth.”

Google is trying hard to argue that Judge Donato should consider an aftermarket theory, but he says it’s “completely inconsistent with the evidence that’s been presented in this case” and doesn’t agree it should apply at all. I will admit I do not know what aftermarket theories are or how they work, but Google’s lead attorney tried to argue that Google has been arguing from the beginning that people buy their phones for apps — so that gives me a clue.

We’ll be back tomorrow — yes, we do have court on a Friday for once, since day 8 got partially canceled. Tomorrow will be the close of evidence in this trial, and then we’ll be off for a week. Closing arguments and the verdict should come the week after that.

Each party will get an hour for closing arguments, says Judge Donato, and we should expect to be here until 5PM or later each day on the last week of trial.

He says the majority of Android owners will go search for Fortnite within Google’s ecosystem, but there’ll be no mention of it in the Play Store, and it might not appear in the first or even second page of search results — so Epic would have to advertise in Google Search to change that, paying Google more money. Should they indeed find the app, consumers don’t understand the process because they’re familiar with downloading games through Google Play.

“Then they’re hit with the first prompt, which is that this APK can damage your phone... the unknowing consumer is always on the back foot, they’re scared up front... then they’re put through an install flow that’s prohibitive to downloading the app,” he said.

Gass wrote: “Apparently at the final stage-gate of software testing before MP release, Google is blocking our Game Space silent install solution bypass of the stop trusting unknown sources.”

Neither Epic nor Google has suggested it was a workaround yet, nor have we seen OnePlus’ subsequent explanation for why Google might have blocked it.

Stolfus tells Epic’s attorney that Google “didn’t want the ability for a store ultimately to be preinstalled and bypass the installation restrictions that exist if you sideload an app.”

LG, too, blamed Google. “They let us know that Google was preventing them from moving forward with the installation of an app that could install other apps,” says Stolfus.

Verizon, too. “We were led to believe by their partner Digital Turbine that it was related to Google,” he says.

But that didn’t happen because OnePlus decided not to go all in outside India, and Stolfus says Epic couldn’t dedicate the same “significant” engineering resources to other OEMs, save Samsung.

He rejected it because the larger goal was to get the Epic Games app on phones, not just Fortnite.

We’re now hearing what he meant:

He says that after the plan was set in motion, he needed to continue to maintain a relationship with Google — but no one else from Epic would join him in meetings and calls. He asked: “are we just pawns in Tim’s game?”