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...