Video game maker Epic Games, which brought the case alleging Google's Play Store has been abusing its stranglehold over the Android app market, countered with arguments outlining why both the verdict and punishment should be affirmed to foster more innovation and lower prices.
In San Francisco's Ninth Circuit Court of Appeals, Google lawyer Jessica Ellsworth explained why the company believes the judge overseeing a month-long trial in 2023 improperly allowed the market in its case to be defined differently than it had in a similar antitrust trial revolving around Apple's antitrust trial in 2021.
Ellsworth also asserted the trial shouldn't have been decided by a jury because Google exercised its consent to that process and demanded the case be decided by a judge instead, as had the trial by Apple.
Epic Games filed a separate antitrust case against Apple in 2020. (AP PHOTO)
Epic, the maker of the popular Fortnite video game, filed separate antitrust cases against Apple and Google on the same day in August 2020 and culminated in dramatically different outcomes.
Unlike the jury in Google's trial in San Francisco, US District Judge Yvonne Gonzalez-Rogers largely sided with Apple in an 185-decision that defined the Play Store and Apple's iPhone app store as part of a broader competitive market.
Ellsworth told the appeals court that US District Judge James Donato improperly allowed Epic to turn the Google trial into a "do-over" that excluded the Apple app store as a rival in the market definition that led to the jury's verdict in its case.
"You can't just lose an issue that was fully litigated the first time (in the Apple case) and then pretend it didn't happen," Ellsworth said.
She said the competition that Google and Apple engage in while making the two operating systems that power virtually all of the world's smartphones "sufficiently disciplines" their actions in the app market.
But the appeals judges indicated they believed the market definitions could differ in the separate app store cases because Apple bundles all its software and the iPhone together while Google licenses the Android software that includes its Play Store a wide variety of smartphone makers.
"There are clearly some factual differences between the Android world and Apple world," Judge Danielle J. Forrest told Ellsworth.
Judge Gabriel Sanchez also sounded sceptical about Google's claims about being lumped with an improper market definition in its trial.
"Even if Google vigorously competes with Apple (in smartphone operating systems), that doesn't mean it can't create a different ecosystem where it's a monopolist," Sanchez interjected during Ellsworth's presentation.
The penalties that Donato imposed in October and subsequently postponed while Google pursues its appeal would impose a series of sweeping changes that include making the Play Store's entire library of two million apps available to potential competitors - a move expected to result in lower commission rates.
The appeals court hasn't set a timeline for issuing a ruling in the Play Store case, but it typically takes several months before a decision is reached.
