Judge James Donato just made it crystal clear: Google will pay.
Eight months after a federal jury unanimously decided that Google’s Android app store is an illegal monopoly in Epic v. Google, Donato held his final hearing on remedies today. While we don’t yet know what will happen, he repeatedly shut down any suggestion that Google shouldn’t have to open up its store to rival stores, that it’d be too much work or cost too much, or that the proposed remedies go too far.
“We’re going to tear the barriers down, it’s just the way it’s going to happen,” said Donato. “The world that exists today is the product of monopolistic conduct. That world is changing.” Donato will issue his final ruling in a little over two weeks.
While Epic won the jury trial last December, it’s been up to the judge to decide how to fix the damage that Google’s monopoly caused. In April, Epic revealed it was asking the court to effectively crack the Google Play store wide open — by forcing Google to let rival stores live inside its own Google Play store and giving them access to every Google Play app, too.
That way, an Android user could freely decide whether they prefer Google or someone else as their app landlord.
Surprisingly, today’s final hearing on remedies began with both parties agreeing that opening up the Play Store is doable, perhaps not even that hard — but they fought about how long it would take, how much it would cost, and especially whether Google would be able to force every app in every rival store to undergo human review by Google before it lets those stores into Google Play.
Google argued that it shouldn’t hypothetically be forced to carry a Nazi app, as one example: “If the American Nazi Party app came to Play, Play would say no,” said Google’s lead attorney, Glenn Pomerantz.
“When you have a mountain that’s built out of bad conduct, you have to move that mountain.” — Judge Donato
But Epic lead attorney Gary Bornstein later countered: “If Google is actually reviewing every single app on a third-party store, it gives Google the gatekeeping authority it has already abused.” And Judge Donato made it clear he plans to ban any nondiscriminatory behavior when it comes to how Google treats rival app stores, up to and including human review.
In his closing argument, Pomerantz came close to suggesting that the direction Judge Donato is aiming constitutes Soviet Russia-era communism, arguing that courts have previously said “central planning,” of the sort that would force Google to carry rival app stores in order to create new competition, isn’t allowed. (Earlier, Donato said, “The whole point of this is to grow a garden of competitor app stores.”)
But Donato said he won’t “micromanage” Google here or centrally plan the results. Instead, he’ll order Epic and Google to create a “technical compliance and monitoring committee,” with one representative from Epic, one from Google, and a third they both agree on, to arbitrate the technical details and report back to the court every 90 days or so.
Donato told Google: “When you have a mountain that’s built out of bad conduct, you have to move that mountain. That’s what’s going to happen.”
