SAN FRANCISCO — Google went to appeals court docket Monday in an try to persuade a three-judge panel to overturn a jury’s verdict declaring its app retailer for Android smartphones as an unlawful monopoly and block the penalties imposed by a federal choose to cease the misbehavior. Online game maker Epic Video games, which introduced the case alleging Google’s Play Retailer has been abusing its stranglehold over the Android app market, countered with arguments outlining why each the decision and punishment must be affirmed to foster extra innovation and decrease costs.
In a virtually hour-long presentation in San Francisco’s Ninth Circuit Court docket of Appeals, Google lawyer Jessica Ellsworth defined why the corporate believes the choose overseeing a month-long trial in 2023 improperly allowed the market in its case to be outlined otherwise than it had in an identical antitrust trial revolving round Apple’s antitrust trial in 2021.
Ellsworth additionally asserted the trial should not have been determined by a jury within the first place as a result of Google exercised its consent to that course of and demanded the case be determined by a choose as an alternative, as had the trial by Apple.
Epic, the maker of the favored Fortnite online game, filed separate antitrust circumstances towards Apple and Google on the identical day in August 2020 and culminated in dramatically completely different outcomes. In contrast to the jury in Google’s trial in San Francisco, U.S. District Decide Yvonne Gonzalez-Rogers largely sided with Apple in an 185-decision that outlined the Play Retailer and Apple’s iPhone app retailer as a part of a broader aggressive market.
Ellsworth instructed the appeals court docket that U.S. District Decide James Donato improperly allowed Epic to show the Google trial right into a “do-over” that excluded the Apple app retailer as a rival available in the market definition that led to the jury’s verdict in its case.
“You’ll be able to’t simply lose a problem that was totally litigated the primary time (within the Apple case) after which faux it did not occur,” Ellsworth stated. She stated the competitors that Google and Apple interact in whereas making the 2 working methods that energy nearly the entire world’s smartphones “sufficiently disciplines” their actions within the app market.
However the appeals judges indicated they believed the market definitions might differ within the separate app retailer circumstances as a result of Apple bundles all its software program and the iPhone collectively — creating what has turn into generally known as a “walled backyard” — whereas Google licenses the Android software program that features its Play Retailer all kinds of smartphone makers.
“There are clearly some factual variations between the Android world and Apple world,” Decide Danielle J. Forrest instructed Ellsworth.
Decide Gabriel Sanchez additionally sounded skeptical about Google’s claims about being lumped with an improper market definition in its trial.
“Even when Google vigorously competes with Apple (in smartphone working methods), that does not imply it could’t create a unique ecosystem the place it is a monopolist,” Sanchez interjected throughout Ellsworth’s presentation.
Epic lawyer Gary Bornstein painted Google’s arguments as a determined and unfounded effort to protect the system that enhances Google’s income with price-gouging commissions starting from 15% to 30% on in-app purchases flowing from software program downloaded by means of the Play Retailer.
The penalties that Donato imposed in October and subsequently postponed whereas Google pursues its attraction would impose a collection of sweeping modifications that embrace making the Play Retailer’s whole library of two million apps out there to potential rivals — a transfer anticipated to lead to decrease fee charges.
The appeals court docket hasn’t set a timeline for issuing a ruling within the Play Retailer case, but it surely usually takes a number of months earlier than a choice is reached.
Google can also be at present dealing with different potential penalties that would embrace being pressured to promote its Chrome net browser after a choose in one other antitrust trial dominated its ubiquitous search engine is an unlawful monopoly, too.
In Monday’s two-hour listening to Bornstein contended that Google by no means tried to outline the Android app market throughout the trial the way in which it introduced it throughout its attraction and reminded the three-judge panel that the bar must be set excessive earlier than reversing a jury’s verdict and the following punishment ordered by a decrease court docket choose.
“The advantage of the doubt doesn’t go to the wrongdoer,” Bornstein stated.
The judges appeared extra troubled by Donato’s determination to stay with a jury trial after the case modified shortly earlier than the Epic trial when Google settled lawsuits introduced by attorneys normal throughout the U.S. and one other outstanding app developer, Match Group. An settlement for a jury trial had been reached when the attorneys normal and Match circumstances had been going to be mixed with Epic’s, however Google wished to revert to having a choose resolve the end result after settling a number of the claims solely to be rebuffed by Donato.
At one level throughout Bornstein’s presentation, Forrest overtly mused about the potential of declaring the decision as a choice rendered by the equal of an advisory jury and sending the case again to Donato for a extra prolonged ruling.
That’s an strategy favored by Ellsworth, who identified that the choose’s ruling within the Apple app retailer case spanned practically 200 pages whereas the jury within the Google trial “had been requested eight questions they usually provided 14 phrases defining a related market.”
However Bornstein urged the appeals court docket to resort to giving Donato a “homework project” that might give Google extra time to revenue from its unlawful conduct.