A landmark decision from the Ninth Circuit Court of Appeals has once again solidified Epic Games’ victory over Google, upholding the unanimous 2023 jury verdict that found Google’s app store and payments system to be illegal monopolies. This pivotal ruling marks a significant moment in tech policy and the ongoing battle against digital platform dominance, reinforcing the legal stance against anticompetitive practices.
The appeals court affirmed the lower court’s decision in “Epic v. Google,” signaling a potential green light for a previously paused permanent injunction designed to dismantle these Google Play monopolies. This judicial affirmation brings the long-running legal saga closer to a resolution, despite Google’s stated intention to appeal the decision further, likely to the Supreme Court.
Epic Games, developers of the globally popular “Fortnite,” celebrated this outcome, confirming plans to integrate its own app store directly within the Google Play ecosystem. The lifting of the stay on the permanent injunction paves the way for Epic to proceed with its ambitious strategy, fostering greater competition within the mobile application distribution landscape.
The broader implications of this comprehensive permanent injunction are far-reaching, extending well beyond Epic’s immediate aspirations. It mandates that Google effectively open its app store to invigorated competition for a duration of three years. This includes requirements for Google to distribute rival app stores within Google Play, grant competitors access to its full catalog of apps, and strictly prohibit various anticompetitive behaviors, such as demanding the exclusive use of Google Play Billing.
In response, Google’s global head of regulatory affairs, Lee-Anne Mulholland, expressed concerns, asserting that the decision could significantly jeopardize user safety, limit consumer choice, and undermine the spirit of innovation historically central to the Android ecosystem. Google maintains its commitment to safeguarding its users, developers, and partners as it prepares its next appeal.
The origin of this antitrust saga traces back to Epic’s lawsuit against both Google and Apple, challenging their respective app store policies after “Fortnite” was removed from their platforms. While Epic intentionally utilized “Fortnite” as a strategic tool to confront these alleged monopolies, the outcomes against the two tech giants have differed markedly, shedding light on the nuances of their market positions.
Crucially, the appeals court acknowledged Epic’s calculated move, noting Google’s removal of “Fortnite” after Epic embedded secret code to bypass Google’s payment systems. However, the Google case distinguished itself from Apple’s. A jury in the Google trial uncovered extensive secret revenue-sharing agreements between Google, smartphone manufacturers, and game developers, alongside internal emails revealing Google’s apprehension about Epic potentially mobilizing other developers against its platform.
The Ninth Circuit explicitly rejected arguments that the Apple case precedent should influence the Google decision, particularly concerning the question of Google’s monopoly on Android apps in light of competition from Apple. The court highlighted the fundamental differences between Apple’s “walled garden” approach and Google’s “open distribution” model, concluding that while Google and Apple compete for mobile-gaming downloads, they do not compete in the Android-only app distribution and in-app billing markets, where Google was found to hold illegal monopolies.
A minor correction clarifies that Google, while confirming its intent to appeal, did not specify whether it would proceed directly to the Supreme Court or first seek an en banc review from the full Ninth Circuit.
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