Google Files Appeal in Epic Antitrust Case

Late Wednesday, Google filed its appeal of the Epic v. Google antitrust, asking a federal appeals court to throw out the ruling.

“This case involves an extraordinary attempt by a lone competitor to use the federal judiciary to restructure the day-to-day operations of Google’s app store, Google Play, and to unilaterally reshape markets with consequences for millions of non-parties,” the Google filing notes. “If not reversed, the injunction and the flawed liability ruling underlying it will directly undercut Google’s efforts to compete against Apple and the iPhone, a competitive dynamic that has spurred innovation and brought concrete benefits to consumers around the world.”

As I’m sure you know, Google was found guilty of sweeping antitrust violations tied to its Google Play Store and Android app ecosystem in Epic v. Google last December. In October, Judge James Donato issued his final ruling, requiring Google to open up its Google Play Store to third parties, allow developers to use the in-app payment system of their choice, and make a laundry list of other changes for three years starting in November. The judge then granted Google a stay of his injunction in late October so the company could appeal. This filing is the formal start of that process.

Google’s argument is based on two core concepts, that the injunction is good for Epic Games but bad for consumers, and its mobile OS rivalry with Apple, a company whose mobile app store isn’t currently subjected to the restrictions that will be imposed on Google by the ruling it is appealing.

To the first point, Google argues that the changes it has to make to accommodate Epic’s legal victory will impact “over half a million developers,” hardware and mobile carrier partners, and other Android app stores, none of which were parties to the Epic lawsuit. But Google offers several superfluous or even ridiculous arguments to this point, as well, and it repeats the argument it made in court that the changes are “unsafe and would impede competition, not improve it.”

Google brought up Apple during the trial as well, and it’s understandable that it might be exasperating to the company that Apple’s punishment in its nearly identical case with Epic is comparatively minor. But arguing that the remedies imposed by the court will make it more difficult for Android to compete with the iPhone is a classic antitrust rebuttal that misses the point. Antitrust remedies are designed to prevent further abuses, not to prop up the guilty company because it has competition. The more proper outcome here is for Apple to have to make similar changes to its App Store, and a guilty verdict in Epic v. Google that withstands an appeal will help make that happen. And not just in the United States.

Google also highlights flaws it found in the verdict and remedies. But most of these are technicality-related or just factually incorrect. For example, Google claims that “businesses generally have no duty to deal with competitors, much less design new products to prop up their competitors.” But most businesses aren’t found guilty of sweeping abuses as Google was, and antitrust remedies often include product changes aimed at ending that abuse. That’s not “propping up a competitor,” it’s leveling the playing field for all competitors.

In short, Google is asking the appeals court to reverse the verdict and vacate the remedies imposed in the resulting injunction in Epic v. Google.