Epic Sues Google Too, But with a Twist

Posted on August 14, 2020 by Paul Thurrott in Apple, Games, Mobile gaming, Google, Mobile, Android with 25 Comments

Epic isn’t just going after Apple’s illegal business practices, it’s going after Google’s too. But Epic’s claims against Google include an additional element. In addition to the standard anti-competitive behavior it complained about with Apple, Epic says that Google prevented it from having Fortnite preinstalled on OnePlus handset, an illegal restraint of trade.

“Epic’s experience with OnePlus, is illustrative [of Google’s illegal business practices],” the Epic lawsuit against Google reads. “Epic struck a deal with OnePlus to make Epic games available on its phones through an Epic Games app. The Epic Games app would have allowed users to seamlessly install and update Epic games, including Fortnite, without obstacles imposed by Google’s Android OS. But Google forced OnePlus to renege on the deal, citing Google’s ‘particular concern’ about Epic having the ability to install and update mobile games while ‘bypassing the Google Play Store’.”

Epic also points out that another phone maker, LG, wouldn’t even discuss preloading Fortnite and the Epic Games app on its devices because “its contract with Google did not allow it to enable the direct distribution of apps.”

It’s worth pointing out that some phone makers, including Samsung, the world’s largest smartphone manufacturer, do enable the direct distribution of apps via their own apps like the Galaxy Store, so it’s unclear why Google’s contracts vary by hardware maker so dramatically. But here’s one theory: Smaller handset makers like OnePlus and LG are far more vulnerable to Google’s threats, whereas Google needs Samsung.

Anyway, Epic points out other Google business practices that go beyond the complaints it made against Apple.

“Google contractually prohibits app developers from offering on the Google Play Store any app that could be used to download other apps, i.e., any app that could compete with the Google Play Store in app distribution,” the lawsuit continues. “Google further requires app developers to distribute their apps through the Google Play Store if they wish to advertise their apps through valuable advertising channels controlled by Google, such as ad placements on Google Search or on YouTube that are specially optimized to advertise mobile apps. Finally, Google stifles or blocks consumers’ ability to download app stores and apps directly from developers’ websites … the process of directly downloading Fortnite on an Android device can involve a dozen steps, requiring the user to change default settings and bravely click through multiple dire warnings. And even if a persistent user manages to install a competing app store, Google prevents such stores from competing on equal footing with the Google Play Store by blocking them from offering basic functions, such as automatic updating of apps in the background, which is available for apps downloaded from the Google Play Store.”

According to Epic, Google engages in this behavior specifically to eliminate consumer choice and competition in mobile app distribution. Google’s promise of an “open” ecosystem—as compared to Apple’s lock-in walled garden—is therefore a lie.

As with its Apple lawsuit, Epic is not asking for financial compensation or special treatment, though it can prove that it’s been injured financially and has evidence that Google tried to collude with it privately and offered the firm a preferential arrangement. Instead, Epic would like to see Google be forced to end its “unlawful and anti-competitive restrictions on app developers and consumers … Epic is not bringing this case to recover these damages; Epic is not seeking any monetary relief, but rather only an order enjoining Google from continuing to impose its anti-competitive conduct on the Android ecosystem.”

Again. Bravo.

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Comments (25)

25 responses to “Epic Sues Google Too, But with a Twist”

  1. cavalier_eternal

    So a lot/most folks have already made up their mind on what the legal outcome should be in both of these cases but I think it is worth taking a step back and looking at the potential downside of Epic’s action.

    i think it is fair to assume that both Apple and Google have legal teams that review their respective App Store policies and that their respective legal teams feel they are in the clear when it comes to antitrust. I think it is safe to say that both companies probably have fairly competent legal counsel. So what happens if Epic loses this? It isn’t just Epic that loses as this will set a legal precedent that Apple and Google can point to in the future with will make it harder for any other company to take legal action and to a lesser extent it will cause roadblocks for the FTC should they choose to pursue an antitrust lawsuit. There is considerable downside should Epic completely botch this one.

    So for people that are convinced* that Apple and Google have absolutely violated antitrust laws, how confident are you in Epic’s ability to handle this and how comfortable are you with their approach of making a public spectacle out of the whole thing rather than simply taking legal action?

    * I’ll be transparent on my thoughts. I think Apple and Google’s practices are question but I am not a lawyer let alone a lawyer that specializes in antitrust law. I am very interested to see what the actual legal arguments are and am very much looking forward to watching this one.

    • wright_is

      In reply to cavalier_eternal:
      that their respective legal teams fee they are in the clear when it comes to antitrust.

      Yeah, so did Standard Oil, IBM, Microsoft and a bunch of other companies over the years... That "feeling" didn't work out too well for them.

      They are all out to sail as close to the wind as possible, without capsizing. As they grow bigger, their tipping point increases and if the lawyers don't reassess the situation and reef up the main, they could still go over.

      Lawyers to company: "if we look interpret it this way, we are in the clear."

      Judge to company lawyers: "Yeah, er no. I interpret it a different way."

      If the judges all the way up the pole agree to disagree with the lawyers, the companies will be found guilty.

    • lvthunder

      In reply to cavalier_eternal:

      The whole case depends on how the judge defines a market. I would be very surprised if a judge rules that iOS app distribution is a market for instance.

  2. SvenJ

    In reply to lvthunder: When I've sideloaded, it was, turn of the restriction in settings, get the apk on the device, and run it. What was a multi-part challenging process was getting the PlayStore on my Fire Tablet.

  3. nbplopes

    In reply to lvthunder:

    Bringing Xbox and PlayStation at the moment is based on a fallacy. Not one in two Americans have a PlayStation or Xbox, neither these are general purpose computing devices.

    • dftf

      In reply to nbplopes:

      I agree neither are -- though I do wonder why neither could be.

      What is stopping Microsoft from allowing Microsoft Office to run on an Xbox, for example. Their OS is Windows-based (Windows 10 Core), so does seem odd to me they don't have those apps on there. Heck, why not have a "Windows mode" where you can boot to a desktop and use it like a PC?

      (Sony did originally envision an office-suite on the original PlayStation, hence the parallel-port which would have been to connect a printer to, but it never became a thing.)

  4. eric_rasmussen

    Companies like Google and Apple are companies, not altruistic volunteer organizations. With that said, I do agree that the 30% is absolute thievery. I'm not as sure about Epic's claim of third-party stores though. If you look up the malware reports on Android, virtually all of it is delivered via unofficial stores where apps don't go through the same vetting process as they do on Google Play. Google does need to protect their image and letting official app stores install malware could cause them material harm by labeling Android as an insecure platform. It would actually make Android significantly less secure than iOS, and would therefore harm Google's ability to compete with Apple.

  5. red.radar

    Bravo indeed.

  6. scovious

    It's a war against the principle of 30% digital storefronts, and Epic found a way to target these representative companies of multiple billions of devices in a way that didn't drag in every other digital storefront at the same time (Sony, Xbox, Valve), and at a time when both companies are under review for antitrust. It feels personal, and the only way for Google or Apple to win is for the rest of the world to see them as they truly are.

  7. Daishi

    It’s almost as if Google are every bit the terrible company, with all the same egregious business practices and more, that Apple is and that by using an Android powered device over one running iOS you actually aren’t making an ethical choice, just picking between types of exploitation.

  8. olditpro2000

    Similar to Apple, Google has a consistency problem.

    But Google forced OnePlus to renege on the deal, citing Google’s ‘particular concern’ about Epic having the ability to install and update mobile games while ‘bypassing the Google Play Store’.

    ...but OnePlus was able to install Facebook system services that bypass the Play Store and automatically update Facebook apps. These Facebook system services can't be easily removed by consumers, they can only be disabled.

  9. Michael Sorrentino

    In reply to Skolvikings:

    Not true, Civil suits result in guilty/not guilty rulings and legal precedent. They also, though not in this case as Epic is not seeking financial damages, often result in higher financial damages against the accused then in a criminal case.

  10. mattbg

    Epic made some waves a couple of years back by opening their own game store to combat the Steam store and what Epic claimed were excessive commissions at Steam.

    I believe Steam also takes about 30%, whereas Epic is taking around 12%.

    I bought a couple of games through that store. The games are great, but the store is not.

    Steam is a much better store. I'm not sure Epic has even improved anything over time. I can't even gift an app (or even buy a gift card), nor can I write a review in the Epic store, nor can I see what other game buyers thought of the game and how recently. It has no "related games" or "suggestions".

    I wouldn't be surprised if Steam made up for the commission in volume just because of the way it promotes evaluation and discovery. With Epic, it seems like you're reliant on Epic to promote what they want to promote.

    In short, the Epic store costs less but they are not providing anywhere near an equivalent product. It's basically something I'd expect to pay 5% for (2% on top of the payment processing), but I'm paying 12% for it.

    So, maybe Epic and game publishers benefit from this arrangement but I can't say that the user does.

  11. nobody9

    It won't be long before the Epic's beef with Google will be irrelevant, given that Google is already mostly finished with moving all of your sensitive phone and app data to a more secure integration of software and hardware. Microsoft and Apple, on the other hand, have yet to embrace app-OS security with same vigor, but at least Microsoft has started to move in that direction.

  12. Cdorf

    Samsung is finally like, see theres a reason for our store!

  13. navarac

    Just proves ALL companies will do what they think they'll get away with.

  14. overseer

    While I understand the distinction that Google will make about an App being used to Download other Apps, my Samsung phone comes with Facebook, Outlook, OneNote, and a bunch of other crap I don't want, so I don't see why Epic shouldn't be able to be included if the manufacturer wants to enter into a deal to add more bloat to the phone. Obviously, it would be one more reason for me to avoid buying that brand of phone, but I really don't think Google should be the one making the decision there.

    I really wish our mobile market could support more than 2 major players. Having some real choice and competition could alleviate a lot of this, but as we've seen time and time again, consumers won't give new players much of a chance her, so we have to deal with the rules set by Google and Apple.

  15. codymesh

    I find this quite damning, it completely shatters all illusions of what Google parrots about Android - that it's about "choice" and "openness" for both OEMs and consumers.

    This case shows that it's the opposite.

    • Paul Thurrott

      Well, that aspect of Android is real. But the underbelly here is that Google makes most of its money from advertising, so the open platform is there to ensure it can piggyback the ads and tracking on top of it. That's the real reason Google makes less from its app store than Apple does from its store: It doesn't need to. It makes a lot more secretly through tacking and ads.
  16. yaddamaster

    I understand suing Apple. But with Google you can easily side-load applications without having to root your device.

    Seriously - I find the app stores a complete wasteland of crap - especially the games. Go back to the old days of just finding an app you like on a website and then install it. Oh, that's right - the stores are protecting us. Yeah, right - predatory in-app purchases that the app stores encourage since they get a cut of the revenue.

    Just say no. Don't use iOS and side-load your Android apps.

  17. xapache

    I suspect there will be a bandwagon effect, which I believe is what Epic is also hoping for. We've already seen Microsoft beginning down this road with their small shot over the bow (to continue the nautical theme) with regards to xCloud.

    I think you will see far more companies becoming vocal now that Epic has taken this stand.

  18. siv

    These are top guys. I hope the elected in Washington are paying attention!

    • red.radar

      In reply to Siv:

      Nope... platform companies pay big dollars in lobbyists and provide critical infrastructure in big data / analytics for vote harvesting.... pardon me... get out the vote efforts.

  19. cavalier_eternal

    In reply to pecosbob04:

    Meh, I see most of Paul's writing as editorials vs. news. So there is a lot of leeway with interjecting personal opinion. I got no issue with it.