Sean Hollister

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.

“If you win, what are you planning to ask for?” asks the judge — because Epic has not articulated that clearly before now either. (The Verge has also asked Epic and been partly rebuffed.)

Epic says it’s asking for three things: freedom for Epic and other developers to introduce their own stores without restriction, total freedom to use its own billing system, and an anti-circumvention provision “just to be sure Google can’t reintroduce the same problems through some alternative creative solution.”

Judge Donato says the last won’t happen: “We don’t do don’t- break-the-law injunctions... if you have a problem, you can come back.”

He says the first two asks feel like they’re doable in a settlement: “Spotify pays 4 percent or 0 percent and has its own billing... you need to be clear with your client who’s sitting behind you that [settlement negotations are] going to happen.”

(Epic CEO Tim Sweeney is sitting behind him. I don’t see a visible change of expression on Sweeney’s face.)

Google will call Rich Miner, a co-founder of Android, as soon as tomorrow as it begins its case for counterclaims.

The plan is to finish up evidence on Friday the 1st and begin closing arguments on Monday the 11th.

You might say — isn’t that proof that Android isn’t working properly for Epic, that Android is stifling its progress? But now that we know Tucker’s defining the product market as facilitating digital transactions, she can say there’s clearly competition between Android and PlayStation and Xbox and Nintendo, all platforms helping Epic get those dollars.

She says her definition of the relevant product market is “facilitation of digital content transactions.”

“When I say facilitation, I mean making sure these interactions between app developers and app users go well,” she adds.

The skepticism on the judge’s face was palpable. He had her clarify again a few minutes later, then moved on.

Players bought their V-Bucks they used on Android from:

33.8 percent PlayStation 4

27.3 percent Xbox One

13.9 percent Android

9.9 percent PC

8.7 percent Switch

6.5 percent iOS

(The data goes through August 2020 because that’s when Fortnite was booted off the store.)