Sean Hollister

I can now give you a slightly better idea — last night, Epic and Google submitted dueling proposed jury verdict forms (pdf). As you’ll see right away, Epic is trying to avoid defining the market, while Google is asking jurors if Epic proved that an “Android app distribution market” and an “Android in-app billing services market” exist to begin with.

It can’t be both ways: only one final judge-edited verdict form will reach the jury.

I got a tad too busy with daily live courtroom reporting and some gaming handhelds to write or edit this month’s column, but I promise it’ll be back in January! Hint: think blue.

Here’s how we ended the day: Judge Donato told Epic that he doesn’t believe any of Google’s conduct reaches the standard of being “per se anticompetitive.”

“I’m perfectly fine with rule of reason but I’ve having trouble saying they’re so egregious on their face,” he said.

Epic lead attorney Bornstein says he’s only seeking per se for the Project Hug agreements with Riot, Activision, and Supercell, and the judge says he’s willing to hear more but isn’t inclined to take this away from the jury. He thinks we’ll be deciding everything under the rule of reason standard instead, partly because of a Circuit Court decision (presumably referring to where Epic v. Apple went on appeal.)

Judge Donato also wanted to know where Epic thought we’d land on the relevant product market, and Bornstein said he’s handling it differently than in Apple because of Google’s very different structure of business relationships. The judge wound up saying, “I don’t think aftermarket concepts are in play here.”

I am not a lawyer or even a legal reporter, so I’m not going to translate any of this for you on the spot. It’s not worth getting it wrong.

“Even if it didn’t get the exemption, Motorola could still enter into the preload deal, that would just reduce the percentage of devices in the MIA portfolio, right?” asks a lawyer.

“That’s a fair way to say it,” replies Christensen. (So Lenovo is simply getting paid less for fewer devices in compliance, I believe I’m hearing.)

We are done with testimony for the day but listening to the judge talking to both lawyers about what’s coming next.

“The primary benefit had been for us to differentiate ourselves compared to the likes of Samsung, for example,” he says.

Later, he was asked if Motorola had any non-contractual reasons to avoid preloading another store. “The most common reason that exists is because of redundancy for consumers,” he says. Obviously Motorola can’t pre-load the iOS App Store, and “most stores available as a third-party store are more limited,” he says.

“So we think it’s in the consumer’s best interests to have one.” Google Play is that one.

In 2020, if over 95 percent of Motorola devices were compliant, parent Lenovo would receive $5.3 million, Christensen explained.

For 2021, the amount was $6 million.

One of the requirements for compliance (bolding mine):

This may be a good find for Epic, because it appears to be a direct payment — not a complicated deal that involves co-marketing or revenue share. Even though it’s similar to what Google requires with its RSAs, it looks more like Epic’s argument that Google pays some companies not to compete. Not every OEM had an MIA — the Department of Justice alleged that LG and Motorola were the ones.

“To consolidate our engineering efforts into fewer OS solutions was definitely the priority at the time,” he says.

Earlier: “I don’t think we’re able to license iOS from Apple, so Android is what we end up shipping.”

(Motorola arguably produced the first breakout hit Android phones with the Motorola Droid line. The first Android phone was an HTC device, the HTC Dream, which was branded as the carrier-exclusive T-Mobile G1 in the United States.)

He says he was responsible for the revenue sharing agreements between Motorola and Google, in a taped deposition we’re watching from July 2022 — and they were initially about a share of Google’s search revenue, he says. Google has tried to suggest that its search revenue share (with Apple, anyhow) isn’t relevant to this Android case.

And with that, Miner’s purpose in the courtroom for Google has largely ended? Google asked one last question — Miner said he believes Android would have been confusing if there wasn’t “a single place for people to publish their apps.”

He has stepped down from the witness stand, and we’re on break.