Sean Hollister

“We have already announced CoD and Diablo mobile, more to come,” he teased.

In a 2022 video deposition, he told the court there were many reasons to explore the idea:

It would have had an interoperable account system, and the idea was to build the storefront first, then add marketing and promotions later on, according to the emails.

But in the 2022 deposition we’re hearing now, Zerza claims they were “very early exploratory discussions.”

“Obviously we never pursued it because it wasn’t financially attractive for us,” he says.

Lawyers questioning him are asking questions designed to see how serious ABK really was, and whether it lied to partners about its plans. Whether Google and Epic believed Activision Blizzard is relevant to this case.

The goal: “one single mobile games store focused on distribution of mobile games (“STEAM of Mobile” concept), including a single payment system.”

We’re seeing their emails in court right now:

Now, we’re hearing they wanted to build a mobile game store together, too.

We’ve now moved on to a September 22nd, 2022, video deposition with Activision Blizzard CFO Armin Zerza.

Epic moved on to attacking some of Tucker’s earlier points about competing with Apple, suggesting that whether Apple has a better product that indeed competes with Google’s products doesn’t tell us anything about whether Apple “constrains the Play Store as a competitor.”

“Things which are cumbersome, burdensome, not easy ways of delivering digital content,” she replies.

“Can you name a couple for us?“

She suggests that physically going to GameStop to buy a Nintendo Switch cartridge, which technically contains digital content, might be one.

“Is there anything online that is not in the relevant product market as you define it? Anything at all?”

A long pause. “So....”

“I think because I’m including the ability to self distribute...”

She lands on Disney Plus.

“There’s many ways I can get that content to you... that would include subscribing on my PC through a website [...] a smart TV would be another way ... I’d include all those ways because we’re allowing for the possibility of self distribution,” she says.

The judge leaves it at that for now. We’ve just moved on from market definition to other parts of Tucker’s report, but not before Epic tried its best to make Tucker look like she’s in fantasyland, with questions like, “In your view there are not even transactions between the smartphone OEMs and Google, correct?”

In a vacuum, that sounds pretty similar to Tucker’s definition of “facilitation of digital content transactions” — except for Google, it’s even better! Because it’s not limited to mobile, Tucker can point out that Android also competes with other gaming platforms like PlayStation, Xbox, and Nintendo, all of which have rigid 30 percent fees.

She initially says no, it’s about “an instance where a platform can add value.” But he probes further, asking if they would be such a platform in the online world. She waffles slightly, saying they need to have the ability to self-distribute.

The judge asks one more time: “Would you include browsers in the relevant product market?”

She says yes.

Tucker chose a market definition that gave the judge a double-take: “the facilitation of digital content transactions.”

Now, Epic will try to poke holes in it.

So far, Bornstein seems to be implying that Tucker’s definition is not a product — he suggests neither Google nor Apple ever refer to their products this way — but he’s early on in his line of questioning so I guess we’ll see!

This morning, the judge got clearer: Epic must file demands by 9AM Saturday. “The demand is going to be all-inclusive, detailed, and specific,” he says.

Google gets 24 hours to respond: “Google will serve an all-inclusive, detailed response... by 9AM on Monday morning,” he adds. The settlement conference will be just four people: Epic Games CEO Tim Sweeney, Google’s “right person to sign an enforceable deal,” and lead attorneys for both parties.