We had a rare eye this week in the legal world of the antitrust and its application in the game industry. Google calls on its loss in an antitrust trial, because Epic Games convinced a federal court that Google had illegally acted as a monopoly in the restriction of EPIC access to Android users.
Now Google has brought the case to the American Court of Appeal and trying to obtain the remedies that Epic Games have launched. The two parties argued before a panel of three federal judges in San Francisco.
The case began in 2020, when Epic Games filed prosecution against Apple and Google on the same day, after having withdrawn Fortnite from their stores, after Epic tried to allow users to download Fortnite or buy products Fortnite via their Apple and Google smartphones since directly in an Epic Games application. Apple won the antitrust trial, while Google lost.
I also had the opportunity to hear the developers of Google financing Developer Alliance This week, while they were talking about the arguments they had on the remedies and how they could harm their business. It was a rare chance to hear certain parts – supporters in the name of Google – express their points of view, as detailed in a Amicus brief deposited in favor of Google. Google also faces remedies in difficulty in the Google Search antitrust trial. They noted something that Apple and Google have mentioned on several occasions – that security concerns meant that Epic should not be easily authorized to “restart” Fortnite in user phones because it has introduced safety risks . Epic argued that his security was good and it was an attempt to create friction, or to prevent users from moving away from Google Play Store.
In the case, I believe that Apple won against Epic Games in part because it was a monolithic business. Apple could decide on its own policies for its store and also apply policies to the phones it makes. Google, however, did not have such control over the entire ecosystem. Rather, he had to persuade telephone manufacturers like Samsung to adopt Android and use the Google Play Store. But this is where it was in antitrust troubles with a real evidence trail.
Epic Games argued that Google paid in Samsung to make Google Play Store the default store on Samsung phones and keep others like the Epic Games store. Epic games called witnesses who were former Google employees and they confirmed that it was Google’s intention in the signing of these contracts. Because Google paid to keep Epic and others outside Android smartphones and that it probably harmed consumers in the higher price form, the jury found that Google had violated the antitrust law.
I listened to the arguments in court for a live flow. A panel of three judges heard the arguments on both sides for two hours and reported that they seemed skeptical about the call from Google.
Epic Games argued that Google has monopolized the way access to consumers and payment of applications on Android devices. In 2023, a jury concluded that Google illegally blocked competition and a trial judge ordered him to modify the Google Play Store. Google is attractive. Meanwhile, Epic Games has lost all its claims against Apple in a similar antitrust case, winning only one question about the law for developers to announce prices lower than alternative application stores in their application applications . Google has agreed to pay $ 700 million to consumers and make changes in response to a trial by prosecutors of states on Play Store practices.
Hogan Lovells lawyer Jessica Ellsworth represented Google. She argued that Apple’s victory over Epic Games should prohibit an opposite result in the case of Google.
Jessica Ellsworth for Google argued that Google and Apple are fierce competitors and that it should be taken into account when Epic Games maintain that they are monopolists. She argued that the Apple App Store, the Google Play Store and other Android stores are all competing for mobile game transactions on a market that is fundamentally competitive. And she noted that Apple had won, while Google lost.
“You cannot just lose a completely litigation problem the first time, then pretend that it did not happen and try to get a different result against a different opponent,” said Ellsworth, which implies that it is What Epic did when he lost to Apple and then won against Google. The discussion focused on the question of whether the Apple affair was “pre -“, where Apple’s victory against Epic should prevent an epic victory over Google. A judge asked Ellsworth if she thought that the second trial should never have taken place at all.
Ellsworth also argued that the judge of the Google trial, the American district judge James Donato, did not ask the jury of what was necessary to prove how defendants manage the sales of the secondary market, while she has declared that the Apple jury had received such instructions.
“The same products should be subject to the same director legal framework,” she said.
J. Danielle Jo Forrest said each case was to be held alone. In the Apple case, Google alleged that the judge had told the jury to determine what was the relevant market for the antitrust application. Google presumed that, if he was informed to do so in his case, the jury would also have noted that Google did not have the monopoly on the relevant market. The judge asked if the teaching error was a reason to reject the conclusion of the jury.
“What we are saying is that the jury has not received the appropriate instructions on what the standard is to find a secondary market, and therefore not having been properly educated, which is presumed to be prejudicial,” said Ellsworth, Google’s lawyer. “We know that it was harmful here because it is the same element of an antitrust complaint. This is the reason why the markets proposed by EPIC, this partitioned approach, failed in the Apple case. »»
The judge replied that a general antitrust principle is that you take each case in his facts. And there are “clear factual differences between the Android world and the world of apples”.
Justice Gabriel Sanchez also said that he had difficulties with the argument that companies were in a way in the same position, even if Apple manufactures phones while Google creates software.
Senior circuit judge Margaret McKewn replied: “It is not because they are players of the same market that the case of Apple is preclusive here.”
Gary Bornstein, co-head of the dispute at Cravath, Swaine & Moore, spoke for epic games. The lawyer highlighted the differences between Apple’s phones and Google’s business model, where he did not sell devices but made transactions with Samsung.
“The problem is a continuous delay in the relief of a market that suffers from anti -competitive behavior during the best of the decade,” said Bornstein. “Referring it so that the district court will assign the duties to write an opinion is not useless. And my friend made the comment earlier than there was a problem here because we have no conclusions on the definition of the market and the conclusions on the competitive effects of the district court as we did in the ‘Apple case, sufficient for this court to assess. And I quote the decision of responsibility, the juries decide on the responsibility of the antitrust cases all the time. There is no reason why this court needs to review a decision of responsibility.
He said there was no inconsistency between the two cases because there were overlapping markets. Apple uses everything from the manufacturing of the phone to the creation of the App Store on it. Google does not use the entire ecosystem and consumers behave under a different structure with Android.
“For there to be a preclusion, which is really the context in which this question is presented in court, there must be a real inconsistency, so that the two results cannot be correct at the same time,” said Bornstein . “It is not true here. You can have overlapping markets, even if we accept, just hypothetically for a moment, that the discovery of Epic vs Apple on the nature of the market has been sculpted in stone, which would not be prevented because it would not be Not incompatible with the existence of the markets found by the jury. »»
Bornstein challenged Google when he argued that the modifications that Donato ordered would result in great damage to the confidentiality and safety of users. The CEO of Epic Games, Tim Sweeney, described the 15 steps necessary to relaunch Fortnite on an Android phone “Scare Screens”.
Microsoft has filed a thesis in support of epic games, just like the Federal Trade Commission. David Lawrence, director of policies of the antitrust division of the United States Ministry of Justice, argued in support of the maintenance of Epic’s victory.
“The district courts have broad authority and discretion to develop monopolization remedies, and when the law has been raped, the remedy must restore competition. We are more concerned today than Google’s arguments threaten these principles of rocky substratum. We would like to urge this court not to adopt categorical constraints proposed by advice here at the corrective discretion of the district courts, “said Lawrence. “We fear that these constraints, if adopted, could prevent future courts from doing their duty under the law from restoring competition in monopolized markets.”
Lawrence said: “We have illegal driving that affected the point of sale, that competing application stores have been preloaded on Android phones. These Android phones are in the hands of millions of Americans today. The restoration of competition just through this avenue could become more interventionist. The loading of applications is stored directly under the phones, without the user wanting to interact with the point of sale in a truly interventionist manner. This court found that what we think is very reasonable means of opening competition. He took the application stores which are already there on the phone the Google Play Store, and he said that a customer wanted to download a competitor app store, let him use this store for a period limited to the need to reopen the market in competition. “”
The court of appeal is expected to reign this year and will probably be on appeal before the United States Supreme Court.
