This week we had a rare insight into the legal world of antitrust law and its enforcement in the game industry. Google appeals to its loss In a antitrust attempt as Epic games A federal court convinced that Google illegally acted as a monopolist when restricting the access of Epic to Android users.
Now Google has brought the case to the US Court of Appeal and tried to maintain the appeals that have won epic games. The two sides argued in front of a committee of three federal judges in San Francisco.
The case began in 2020, when epic games submitted complaints against Apple and Google on the same day after they had tried Fortnite from their shops after Epic tried to download users for Fortnite or Fortnite goods via their Apple and Google smartphones Buy directly in an epic game app. Apple won the cartel lawsuit while Google lost.
I also had the opportunity to hear developers from Google-financed Developer Allianz This week they talked about the arguments they had about the remedies and how they could harm their business. It was a rare opportunity to hear from some parties – partisans on behalf of Google Amicus letter Submitted in favor of Google. Google is also faced with difficult enforcement agents in the Google Search Antitrust lawsuit. They noticed something that Apple and Google repeatedly brought up – that security concerns meant that EPIC should not be easily approved to switch on Fortnite into the user’s telephones because it introduced security risks. Epic argued that his security was okay and this was an attempt to create friction or prevent users from deriving the Google Play Store.
In that case, I believe that Apple has won partly against epic games because it was a monolithic company. Apple could decide its own guidelines for his business and enforce the guidelines for the telephones he produced. However, Google had no control over the entire ecosystem. Rather, telephone manufacturers such as Samsung had to persuade to take over Android and use the Google Play Store. But here it was in antitrust law with a real proof.
Epic Games argued that Google Samsung paid to make the Google Play Store a standard store on Samsung phones and to keep others like the Epic Games Store away. Epic Games called witnesses that were former Google employees, and they confirmed that this was the intention of Google to sign these contracts. Since Google paid to keep Epic and others away from the Android smartphones and probably harms the consumer in the form of higher prices, the jury found that Google had violated antitrust law.
I listened to the arguments before the court on a livestream. A three-judge committee heard arguments from both sides for two hours and signaled that they seemed skeptical of Google’s appeal.
Epic Games argued that Google was monopolized the way in which consumer access and payment for apps on Android devices were monopolized. In 2023, a jury came to the conclusion that Google blocked the competition illegally, and a court ordered him to change the Google Play Store. Google is appealing. In the meantime, Epic Games lost all claims against Apple in a similar antitrust case and only gained a matter for developers to advertise lower prices for alternative app stores in their app store apps. Google agreed to pay consumers 700 million US dollars and to make changes to a lawsuit by General Prosecutor’s attorney against gameplays.
Hogan Lovell’s US lawyer Jessica Ellsworth represented Google. She argued that Apple’s victory against epic games should complete an opposite result in Google’s case.
Jessica Ellsworth argued for Google that Google and Apple are wild competitors and that this should be taken into account if epic games argue that they are monopolists. She argued that Apple’s App Store, the Google Play Store and other Android stores all compete for mobile gaming transactions on one of fundamental competitive market. And she noticed that Apple won while Google lost.
“You cannot simply lose a problem that is being negotiated completely the first time and then pretend that this has not happened and try to achieve a different result against another opponent” to Apple and then against Google. The discussion focused on whether the Apple case was “exclusively” and in the Apple victory against Epic should rule out an epic victory over Google. A judge asked Ellsworth if she believed that the second process should never have taken place at all.
Ellsworth also argued that the judge in the Google process, James Donato, the US district judge James Donato did not refer the jury to prove how the accused deal with the sale of Aftermarket while she said the Apple Jury received such instructions.
“The same products should be subject to the same legal framework,” she said.
Judge Danielle Jo Forrest said every case had to be alone. In the Apple case, Google claimed that the judge asked the jury to find out what the relevant market was for the enforcement of antitrust rights. Google suspected that, if it had been instructed to determine that Google did not have the monopoly on the relevant market. The judge asked whether the teaching error was a reason to bring out the conclusion of the jury.
“We say that the jury did not receive the right instructions about what the standard is to find an aftermarket and therefore not properly instructed, it is believed that it is prejudice,” said Ellsworth, the lawyer of Google. “We know that it was disadvantageous here because this is the same element of a antitrust claim. This is the reason why the proposed Epic markets, this defamed approach, failed in the Apple case. “
The judge replied that there was a comprehensive antitrust principle that they take on his facts in any case. And there are “clear factual differences between the Android world and the Apple world”.
Richter Gabriel Sanchez also said that he had difficulty with the argument that the companies were somehow in the same position, even though Apple produces telephones while Google software created.
Senior Circuit judge Margaret Mckeown replied: “Just because they are players on the same market does not mean that the Apple case is exclusively here.”
Gary Bornstein, co-manager of legal disputes at Cravath, Swaine & Moore, spoke for epic games. The lawyer pointed out the differences between Apple’s cell phones and Google’s business model, where it did not sell any devices, but carried out transactions with Samsung.
“The problem is the continuous delay in the relief in a market that has suffered from the behavior that has been binding since the majority of a decade,” said Bornstein. “It is completely unnecessary to estimate it for the district court to do the homework of writing a statement. And my friend made the comment earlier that there is a problem here, since we have no results on the market definition and the results of the competitive effects of the district court as we did in the Apple case, sufficient for this dish to assess . And I quote the liability decision well, juries constantly decide in antitrust cases. There is no reason why this Court of Justice is checking a liability decision.
He said there was no inconsistency between the two cases because there were overlapping markets. Apple operates everything from the manufacture of the phone to the creation of the App Store. Google does not operate the entire ecosystem and consumer under a different structure with Android.
“To make a conclusion that is really the context in which this topic is presented to the court, there must be an actual inconsistency, so that the two results cannot be correct at the same time,” said Bornstein. “That is not true here. They can have overlapping markets, even if one only hypothetically accepted for a moment that knowledge in epic and Apple about the type of market of the jury markets. “
Bornstein denied Google when it argued that the changes that Donato had ordered would lead to great damage to the privacy and security of the user. Tim Sweeney, CEO of Epic Games, called the 15 steps that are necessary to charge Fortnite on an Android phone “Scare Screens”.
Like the Federal Trade Commission, Microsoft submitted a letter to support epic games. David Lawrence, Politic Director at the Cartel Department of the US Justice Ministry, argued to support the Epic victory.
“District courts have a comprehensive authority and discretion at the discretion of creating monopoly, and if the law has been violated, the appeal must restore the competition. We are most concerned today that Google’s arguments threaten these basic recordings. We would like to urge this court not to say goodbye to categorical restrictions that are proposed by the lawyer here to remedy the district courts’ remedial measures, ”said Lawrence. “We are concerned that these restrictions, if they are adopted, could prevent future dishes from restoring their duty according to the law to restore the competition to monopolized markets.”
Lawrence said: “We have an illegal behavior that influenced the point of sale, regardless of whether competing app stores were charged for Android telephones or not. These Android telephones are today in the hands of millions of Americans. Restoration of the competition directly from this path could become more interventional. Charge the app memory directly under the telephones without the user having to interact with the sales point in a really interventionist way. This Court found what we consider to be a very reasonable means of opening the competition. The app store that is already available on the phone on the Google Play Store and said a customer wants to download a competing app store. “”
The Court of Appeal is expected to decide this year and is likely to be appealed by the US Supreme Court.
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