“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.”