Sean Hollister

Here’s Epic’s lead attorney Gary Bornstein to answer:

“We love those remedies, period, full stop. We like them, we asked for them, we like them the way we asked for them. Now we have another option that’s on the table that’s the result of a negotiation with Google. We got something through this negotiation that was not on the table before.”

“The only reason Epic is here is because Epic believes this set of remedies in totality will provide longer-term sustainable competition,” says Bornstein. He says holding out for something like this is “the reason Epic didn’t take payoffs back in the day” from Google’s Project Hug and similar.

The overarching question: “Three years and a day, what’s going to happen?”

Bernheim says even if they build those stores, Google will cut off Amazon and co. “Google at that point in time is going to say you can’t have an app that downloads things.” Or erect more friction to sideloading apps.

I don’t quite understand how that changes if were six years rather than three, or why Google wouldn’t shut down its proposed Registered App Store program the same way if that got approved.

“The choice was presented to me that if you want these provisions, which of these do you want? Do you want the ones that are going to provide the better opportunities for competitions to survive, that were in my proposals, or the ones that allow competition to get jumpstarted, which were also in my proposals, which do you pick?”

He seems to be saying that Judge Donato didn’t pick enough of them to make a real dent when he issued his permanent injunction, and didn’t make it last long enough or apply around the world, and so what he truly wanted for competition isn’t happening anyways. So the new settlement is overall better, he’s arguing.

Bernheim replies: “I don’t want to throw it out [...] I would love to keep it.”

Bernheim says there’s a tradeoff, though. “If you want to get competition going and as a compliment to that you have a remedy that will ensure the competition, once it develops, will continue, that it has a path for continuing, then those remedies that we’ve described will be extremely effective.”

Bernheim agrees with the judge that Google still monopolizes the Android app market and payments market; that the facts haven’t materially changed on the ground.

“When that ends, developers are going to be very dependent on off-Google Play distribution,” he says. “To the extent those frictions are still in place, that will be a problem at that point in time [...] they’ll be reliant on a process that has already been shown not to work well.”

He brings up the example of how Amazon’s Appstore never got traction because users had to click through too many Google barriers.

“I questioned you about the need for the duration period, and you said it was such a critical remedy you advocated for a period twice as long,” says Donato.

His “main pluses” include:

Main minuses?