Judge Donato is annoyed.
Google’s witness wasn’t in the courtroom at the time they were called to the stand and took a couple minutes to get there.
He also told lawyers that if he sees any phones on his side of the bar, they will be confiscated. (No phones are allowed in this courtroom at all, though nobody has been taking them away from us on entry.)
Earlier today, Judge Donato let Google say the word iPhone — and it opened the door for Epic’s attorney Lauren Moskowitz to point out what isn’t in the document Google used to justify spending hundreds of millions of dollars on addressing the “contagion effect” of game developers abandoning the Play Store.
What isn’t in the document: Apple. It’s not listed in the “Competitors Aggressively Pursuing Gaming” section. It’s not anywhere.
“Competition with Apple is not being discussed when we’re talking about contagion risk, right?” asked Moskowitz.
“Yes, contagion risk is talking about developers getting their content off Google Play,” Koh admitted. Does that change the conversation around market definition?
Google’s attorney Michelle Park Chiu showed the court an email where Epic explicitly agreed it would “submit an updated build [of Fortnite] that fully complies with Google’s policies and restrictions,” one that would explicitly use Google’s payment platform and remove all other payments.
Obviously, that didn’t last. We’re here in court today because Epic then secretly shoved its own payment mechanism into the app.
But Chiu also found a way to tug on the heartstrings — by letting Koh explain how “betrayed” his Google team felt after pulling out all the stops to get that twice-rejected Fortnite app ready for Epic’s all-important in-game Travis Scott concert on April 23rd, 2020. He said they managed a two-month task in just under two weeks.
“A lot of developers agitate over this, but is there a threat that ABK will go off Play despite what they have to lose via King’s revenue?” asked Google strategic partnerships development manager Johan Heurlin in an email.
Koh replied: “It’s not clear how real of a risk this is. Apparently ABK in the past mention[ed] that they can build their own platform and generate higher cash flow. Again, not sure how realistic this is. They do have Battle.net and a large audience network with their King titles...”
Former Google Play games bizdev boss Lawrence Koh said there was nothing stopping Riot Games from creating a competing app store. He told Google’s lawyer there was nothing keeping Riot from launching games on other platforms either.
He says Google believed it “could make [Riot] the next big gaming phenomenon” since it hadn’t yet released any of its games on mobile.
Epic wanted Koh to say he was worried about the rise of competing app stores on Android, and he wouldn’t go that far.
Google’s lawyer Michelle Park Chiu is asking if perhaps he was worried about consumers choosing a different phone — say, the iPhone — if he didn’t strike deals with developers to retain the games on Google Play.
“That was certainly a concern, yes.”
As for sim-ship: “We were worried consumers would move to other gaming platforms to find that great games content.”
That was actually Google’s question to its own former head of Google Play Games bizdev, and Koh’s answer came with a laugh:
“No, never.”
Google is spending its time normalizing concepts like contractually obligating developers to “sim-ship” their games. “We stuck to making sure they were launching their games on Google Play at the same time as every other platform and making sure they were at the same quality,” says Koh.
A spicy dig from Epic attorney Moskowitz, who has just passed her witness to Google.
Koh admitted he spoke about Project Hug over chat with colleagues but said he didn’t remember if he turned on chat history. He says “everything substantial” was done in Google Docs.
While the agreement itself doesn’t seem to state that Riot can’t build its own app store — only that it has to simultaneously ship games on Google Play, keep its games on Google Play, and offer feature parity — Koh’s own emails seem to suggest that Google specifically made the deal to prevent Riot from creating a competing store.
A paragraph from Koh begins: “Our current investment package for Riot was motivated by 2 objectives: 1) have Riot choose Play vs. launching their own Android store.”
Later in the same email: “In my view, it’s because of objective #1 that we’re paying a higher premium in the first year as Riot builds up their business on Play.”
Koh continues to say it was about keeping games on Play, not blocking competing stores.
“Google made this investment to secure those titles on the Google Play Store,” says Koh. Epic lawyer Moskowitz was trying to get him to say Google spent the money to block a competing Activision app store from emerging — and Google certainly did believe Activision was threatening that app store, according to documents we’ve seen.
“Activision has told us they will build their own mobile store,” one line reads.
But Koh says Google was only worried about losing the games, not someone else gaining them, and we haven’t seen any obvious evidence yet to the contrary.
Google estimated that it would lose $243M a year in revenue if ABK removed its games. Its brand King makes Candy Crush, in case you’re unaware.