Google Counter-Sues Epic Games

Posted on October 12, 2021 by Paul Thurrott in Apple, Games, Google, Mobile gaming with 18 Comments

With its eye on Apple’s appeal of a nearly-identical case, Google this week counter-sued Epic Games for bypassing its in-app payment system. Yes. Google has to copy everything Apple does.

“Far from generating anticompetitive harm, Android and Google Play bring enormous benefits to developers and users, and they do so at zero cost to users and minimal cost to developers in the vast majority of cases,” Google’s suit notes. “Epic’s suit threatens to undermine, rather than enhance, the very competition that has brought these benefits.”

As a reminder, Epic Games modified its game Fortnite to bypass the anticompetitive in-app payment systems that both Apple and Google require of apps in their respective mobile stores. As a result, Apple booted Fortnite out of the iOS App Store and suspended Epic’s developer account. And Google being Google, it copied Apple and did the same, but with its Play Store for Android. So Epic sued Apple. And then it sued Google too.

The case against Apple already went to court, and Judge Yvonne Gonzalez-Rogers issued a split ruling in which Epic won one of the most important elements of its case—forcing Apple to let developers communicate with their own customers—and alerting Epic that perhaps if it supplies more evidence—hint, hint—she could even label Apple a monopoly on appeal and impose stricter punishments against the company. Apple, naturally, called it a “resounding victory” before appealing the case itself.

Epic v. Google hasn’t yet gone to court, but this week’s counter-suit raises the stakes in a similar fashion. But Google’s arguments are just as specious as Apple’s, and despite the faux openness of Android, the online giant may have an even more problematic defense to mount since there is a lot of evidence that it has struck sweetheart deals with hardware makers to force them to only provide access to Google Play Store and its singular in-app payment system. Google also forced OnePlus, a relatively small player, to drop its Epic Games partnership that would have seen Fortnite bundled on its phones.

“Google seeks restitution of any such amounts by which Epic has been unjustly enriched at Google’s expense,” the countersuit adds, somewhat hilariously. “Google seeks and is entitled to a declaratory judgment that: (a) the Google Play Developer Distribution Agreement (DDA) is a valid, lawful, and enforceable contract; (b) Epic breached that agreement; and (c) Google has the contractual right under the DDA to remove Fortnite from Google Play and terminate Epic as a registered Google Developer due to its breach. Google demands a trial by jury on all issues so triable.”

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Comments (18)

18 responses to “Google Counter-Sues Epic Games”

  1. pecosbob04

    " Judge Yvonne Gonzalez-Rogers issued a split ruling in which Epic won one of the most important elements of its case—forcing Apple to let developers communicate with their own customers—and alerting Epic that perhaps if it supplies more evidence—hint, hint—she could even label Apple a monopoly on appeal and impose stricter punishments against the company."

    Okay so much wrong here Where to start? As the lady in the ad states just before her friend "unfriends" her "That's not how any of this works." As I have pointed out often and recently; new evidence not already in the trial record cannot be introduced on appeal. More importantly the trial judge she in this case does not hear the appeal. An appeal determines if the judge correctly applied the law in the case, so think about it how can she hear the appeal. The appeal would be heard (normally) by a 3 judge panel of a superior court. About this horse; "It's dead Jim" you can stop beating it for a while.

    • peterepete

      Why ruin a good thing? The spin doctoring is a joy to read if nothing else.

      • peterepete

        Again doesn’t work that way. This ruling & appeal has to run its course thru the upper courts & right back down. Depending on how higher court judges either pick it apart or let it stand a new trial will have to deal with the same evidence or have some excluded. Which will again change the dynamics of how any ruling will go. See the Google vs Oracle fight for more references.

        • bluvg

          It's true that she wouldn't make the decision at the appellate level, but the case could be remanded, where it is up to the discretion of the judge whether additional evidence can be heard on remand. I also don't necessarily mean Epic as the one bringing a separate claim.

          • pecosbob04

            The rules vary for different Juridictions and depend on things such as can discovery continue in the retrial. Generally if it isn't 'newly discovered evidence' (a witness recant for instance) it can't come in. I doubt first that EPIC's appeal will succeed and second that there is any 'newly discovered' evidence available even if allowed.

            • bluvg

              It does vary, but federal guidance allows, and I believe it's a federal case? At any rate, it looks like it's not an impossible scenario if remanded, especially if the judge telegraphed openness to reopening discovery.

                • peterepete

                  Whoops. Typo.

                  Anyway, the judge can’t reopen discovery after a verdict is issued. No state or federal court allows for such a maneuver. That would require a whole new case to be heard. The next highest court would immediately slap her down on that one.

                • bluvg

                  By federal law, reopening discovery is up to the judge if remanded.

              • pecosbob04

                I thought it was a California case or at least CA. law controlled.

                What you see as an openness to re-opening I see as the Judge pointing out the less than superb job that EPIC's lawyers did in case preparation. But you may be right.

                Still I am having trouble seeing where the appellate court is going to find fault with the judges interpretation of the law, so I dont see it coming back. YMMV!

  2. corbey

    Paul is still sore because Microsoft lost the antitrust case 20 years ago. And he wants Apple to suffer the same fate.

  3. Greg Green

    Google’s arguments are just as specious as Apple’s…” except that apple won nine of ten counts, wasn’t labeled a monopolist, and epic has to pay apple millions.

    maybe having a legal campaign that starts with violating a legal contract, then involves goofy videos with Madman Sweeney running the legal strategy wasn’t such a good idea after all. Apparently Sweeney’s stupidity beat apple’s speciousness.

  4. hrlngrv

    Re Google copying everything Apple does, Google's lawyers would almost certainly expose themselves to malpractice lawsuits if they didn't do everything to protect Google's legal rights as Apple's lawyers are doing to protect Apple's legal rights.

    IOW, when the subject at hand is the legal system rather than computer hardware or software, it really shouldn't come as a surprise when different corporations in the same situation respond in the say way. This really is Business Law 101 stuff.

  5. red.radar

    Its dissapointing that EPIC didn't organize their legal arguments better. This could have gone so much differently.

  6. jamJAR

    Every game seems to be some 2-step monetary nightware on these platforms, and it's no wonder when they have to pay so much to Apple and Google for the privilage.

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