Why Epic Games Really Prevailed Against Google (Premium)

Epic Games has thus far come up short against Apple, but it had little problem beating Google in a nearly identical antitrust case. Why?

We all have our pet theories. But the fact remains that Epic’s case against Apple is, if anything, stronger than its case against Google: Android, after all, does support side-loading, so it’s possible—not easy, but possible—for users that wish to acquire apps and games outside of the Play Store can do so. The iPhone, meanwhile, does not support side-loading. (At least not yet: Recent EU regulations appear to open that door on the iPhone, though the changes will only occur within the European Economic Area.)

So what gives?

Many cite Google’s potentially foolish decision to allow this case to be decided by a jury. I take great exception to this theory, as it only makes sense if you believe that a jury, unlike a judge, might misinterpret the law and give Epic an unfair victory as a result. And that’s nonsense: Epic is in the legal right against both Apple and Google, as these monopolists are clearly abusing their respective dominance in identical ways. But no. The jury did the right thing.

Many likewise cite Google’s embarrassing formal policy of not saving internal chats between employees and executives, a policy that so incensed U.S. district judge James Donato that he promised he would pursue a separate investigation into this “destruction of evidence.” But Judge Donato was not responsible for this decision, a jury was, and that jury was never told that Google destroyed evidence specific to this case.

Judge Donato also demanded that Google and Epic meet and try to settle the case before he would allow the jury to render its verdict. This one is interesting because the judge delivered a very clear warning that things would not go well for Google, a message that rang true when the jury took just four hours to later reach its decision. He was also very interested in Epic’s demands, noting that Google had allowed other companies like Spotify to do exactly what Epic wanted for itself. Surely Google, a company chock full of really smart people, saw the writing on the wall. Why on earth did it not concede and reach a (somewhat) favorable settlement with Epic?

But this theory also falls flat in the face of reality: Legal cases are not one-and-done, and Google’s legal counsel would have told its executives to not give an inch, even knowing that it was likely to lose this case. Instead, it would tell them to drag out the proceedings for several years of appeals, giving it all that time to consolidate its dominance and continue raking in its ill-deserved profits. This strategy is currently working well for Apple, by the way.

No, there is one simple reason that Google lost this case. It lost because it is wrong and because what it is doing is illegal. And the difference between Google and Apple isn’t that Apple didn’t destroy evidence, it’s that Apple never created that evidence at all. That is, it kept all of its high-level decisions about Epic and other complainers off the record. If anything, Google didn’t destroy enough evidence: It was the evidence that Google conceded during discovery that sunk it. That is, it lost because it literally behaves illegally.

Epic CEO Tim Sweeney said as much when he was asked why the outcomes of Epic v. Apple and Epic v. Google are, thus far at least, so different.

“The big difference between Apple and Google is Apple didn’t write anything down,” he told CNBC. “And because they’re a big vertically integrated monopoly, they don’t do deals with developers and carriers to shut down competition, they just simply block at the technical level.”

Those “technical” blocks include the recent episode in which Apple blocked the Beeper Mini mobile service, which let Android users access Apple’s iMessage service. Apple shut it down quickly, citing security concerns. And Beeper worked around them. And you can expect Apple to block it yet again, citing some other excuse. This is what it does.

But these blocks aren’t always technical: Apple prevented Microsoft from bringing its Xbox Cloud Gaming service to the iPhone, despite the fact that it is literally identical to how video streaming services like Netflix work. In this case, the block was strategic—Apple was protecting its nascent Apple Arcade gaming subscription, a clear case of antitrust abuse—and it retroactively changed its license terms to explicitly prevent game streaming services from appearing on iPhone without it getting a per-game fee. (Microsoft ended up bringing Xbox Cloud Gaming to the iPhone via the web, which Apple doesn’t have a lock on. Amazon uses the same workaround for Luna.)

The problem for Epic is that Google’s attrition strategy will likely work in the short term. This too, it understands.

“If Google is obstructing a vertical remedy through appeals and isn’t offering an awesome deal,” he said, Epic and Fortnite won’t be returning to the Play Store, let alone Android through its own store, any time soon.

But this is the chink in the armor we’ve all needed for years. It’s the start of the inevitable move to more openness on mobile, lower developer fees, more choice, lower prices for consumers, and very specific functional changes, like the ability to use your own browser rendering engine on iPhone or overtly working to undermine cross-platform standards that threaten native app development. It’s all going to change. Not today, but eventually.

And this was the first major step forward.