When Epic went after both Apple and Google a few years ago with antitrust claims regarding the need to go through their app stores to get on phones, we noted that it seemed more like negotiation-by-lawsuit. Both Apple and Google have cut some deals with larger companies to lower the 30% cut the companies take on app payments, and it seemed like these lawsuits were just an attempt to get leverage. That was especially true with regards to the complaint against Google, given that it’s much, much easier to route around the Google Play Store and get apps onto an Android phone.
Google allows sideloading. Google allows third party app stores. While it may discourage those things, Android is way more open than iOS, where you really can’t get your app on the phone unless Apple says you can.
Still, it was little surprise that Apple mostly won at a bench trial in 2021. Or that the 9th Circuit upheld the victory earlier this year. The 9th Circuit made it clear that Apple is free to set whatever rules it wants to play in its ecosystem.
Given all that, I had barely paid attention to the latest trial, which was basically the same case against Google. But, rather than a bench trial, this one was a jury trial. And, juries, man, they sure can be stupid sometimes.
The jury sided with Epic against Google.
That leaves things in a very, very weird stance. Apple, whose system is much more closed off and where Apple denies any ability for third parties to get on the phone without Apple’s permission is… fine and dandy. Whereas, Google, which may discourage, but does allow third party apps and third party app stores… is somehow a monopolist?
It’s hard to see how that state of affairs makes any sense at all.
Google has said it will appeal, but overturning jury rulings is… not easy.
That said, even if the ruling is upheld… it might not be such a bad thing. Epic has said that it’s not asking for money, but rather to have it made clear that Epic can launch its own app stores without restriction from Google, along with the freedom to use its own billing system.
And, uh, yeah. Epic should be able to do that. Having more app stores and more alternatives on app payments would be a good thing for everyone except Google, and that’s good.
So I don’t necessarily have a problem with the overall outcome. I’m just confused how these two rulings can possibly be considered consistent, or how they give any guidance whatsoever to others. I mean, one takeaway is that if you’re creating an ecosystem for 3rd party apps, you’re better off taking the closed Apple route. And, that would be bad.
Robin Edgar
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