Fresh off his company’s monumental court victory over Google, Epic Games CEO Tim Sweeney says he has a theory for why a federal jury determined Google was running an illegal monopoly with its app store: The company left too much of a paper trail to ignore.
“Google executives wrote things down,” Sweeney told CNN in an interview Tuesday, citing numerous emails presented at the four-week trial.
Those emails may have led to the first major antitrust decision against a tech giant since the US government took on Microsoft in the 1990s.
The pivotal case brought by Epic, maker of the hit video game “Fortnite,” had challenged Google’s app store fees and restrictive business contracts with smartphone makers and other partners, alleging Google had violated US antitrust laws.
The jury’s unanimous verdict not only found that Google held a monopoly in Android app distribution and in-app billing, but that it resorted to illegal tactics to maintain its power. The decision could lead to penalties against Google that may reshape its app store business for years to come.
Google has vowed to appeal, but the court decision was a striking condemnation, a stark contrast to Epic’s successive defeats in a similar high-stakes case targeting Apple. Google said its app store provides “more choice and openness than any other major mobile platform.”
‘Full speed ahead’
Asked to respond to Google’s vow to appeal, Sweeney said simply: “Full speed ahead.”
The fact that Google was willing to record evidence of its misconduct, while Apple habitually leaves very little paper trail, plays a large part in explaining the difference in results between the two cases, Sweeney said.
“It became very striking early on, and throughout the entire trial, that Google executives put their thoughts in writing very clearly,” Sweeney said. “And then they got up on the stand and gave testimony that was just utterly contradictory to what they’d written down.”
In one widely cited email presented at trial, a Google app store executive boasted of persuading Riot Games, publisher of the popular game “League of Legends,” to abandon plans for a rival Android app store with a promise of $10 million in marketing.
A string of other internal emails bolstered a narrative that Google viewed other app stores as a threat and pursued contracts that would keep them from competing with Google’s app marketplace, Sweeney said.
“They wrote things down to tell each other their smart ideas,” Sweeney said of the Google executives. “And they wrote things down to tell other people their accomplishments so that they would get a higher bonus, and they wrote things down to partners, and partners who received Google’s proposals wrote things down about what they thought Google was actually trying to accomplish. That very clearly exposed all of their wrongdoing.”
That meant the jury did not need to wade through complicated economic theories or expert predictive models that are often a confusing feature of other antitrust battles, Sweeney said.
Apple, by contrast, “was a company that puts nothing in writing other than their final decisions and policy,” Sweeney added. “And so it was nearly impossible to get insight into their anticompetitive motives” during Epic’s case against the iPhone maker, he claimed.
Apple has maintained — and a US district judge and federal appeals court have agreed — that Apple is not a monopolist in app distribution on Apple devices.
Epic has appealed aspects of the Apple case to the US Supreme Court.
In the Google case, even though Google failed to preserve documentary evidence by automatically deleting internal chat logs, the jury still had access to enough material to understand there was a difference between Google’s trial testimony and the company’s preserved communications, Sweeney said.
Google’s practice of deleting certain chat logs after 24 hours has earned the company rebukes or scrutiny from multiple federal judges, including the one overseeing this case and the judge presiding over the US government’s antitrust case targeting Google’s search business.
Fortnite player on the jury
Jurors also seemed to grasp the stakes as technology users themselves, Sweeney said, describing how, in informal conversations after the verdict was delivered, some of them revealed their personal experiences with app store restrictions.
“One of the folks had turned out to be a ‘Fortnite’ and ‘Rocket League’ player,” Sweeney said. “They were taking selfies with us and just hanging out. It just shows the incredible power of the justice system. You have a billion-dollar company challenging a trillion-dollar company, and nine citizens in California get together, hear the facts and render a verdict. That’s an amazing innovation … it’s not like this everywhere.”
In January, the judge in the Google case is expected to begin considering how to fix Google’s anticompetitive behavior.
The open-ended process could lead to substantial changes to Google’s business, including how it manages the Android operating system that it licenses to wireless carriers and smartphone makers. It isn’t clear yet what those may be.
Sweeney told CNN that Google’s “insanely sneaky and illegal” conduct means the company can’t be trusted to abide by any court-ordered modifications to Google’s behavior, and a breakup of some kind ought to be on the table.
“If it becomes impossible for Google to actually solve the problems and be trusted to solve the problems, and comply with court orders, then I think the question of structural remedies has to be raised,” he said, using an antitrust term used to describe forcing a company to spin off assets.
Ultimately, however, Sweeney admitted it isn’t clear if the trial will resolve what kickstarted the litigation in the first place: The removal of “Fortnite” from the Google Play Store due to Epic’s deliberate campaign to circumvent the app store’s rules and trigger a legal showdown.
“I’m not sure if we’ll ever be back on Play,” he said. “That is very much dependent on a bunch of Google decisions …. We intend to bring ‘Fortnite’ to any store that gives all developers an awesome deal.”
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