• by Wendy Davis  @wendyndavis, October 12, 2021

Google, which was sued last year by Epic Games, has countersued the "Fortnite" game developer for allegedly attempting to bypass Google's policies regarding in-app payments.

“Epic willfully breached the [developer distribution agreement] by submitting a version of Fortnite for publication on Google Play with a payment other than Google Play Billing for purchases of in-app content,” Google alleges in a counterclaim filed this week with U.S. District Court Judge James Donato in San Francisco.

Google's counterclaim marks the latest development in a legal battle dating to August of 2020, when Epic sued both Google and Apple for allegedly violating antitrust laws, including laws against monopolies.

Epic's lawsuits came soon after the companies removed "Fortnite" from their mobile app marketplaces for allegedly violating Google and Apple policies regarding in-app purchases.

Apple requires game developers to use its payment platform for in-app purchases, and charges a 30% commission to developers that take in more than $1 million in revenue.

Google, unlike Apple, allows consumers with Androids to sideload apps -- that is, to download them from sources other than Play Store. Google also doesn't charge commissions on in-app purchases when those apps have been sideloaded.

But the company's developer agreement provides that apps distributed through Google Play use Google's payment platform, which charges a commission on in-app purchases.

Google writes in its new court papers that Epic accepted that agreement “with full knowledge” of its terms.

“Despite taking advantage of Google's development tools, the alternate app distribution and sales channels that Android facilitates, and Google Play's free distribution services -- all with no payment to Google -- Epic schemed willfully to violate the terms of the [developer distribution agreement] to avoid paying Google anything at all on the fraction of transactions that would be subject to Google's service fee,” Google alleges.

Epic claimed in its lawsuit against Google that the company “nominally” allows sideloading, but imposes technological impediments that make the process “untenable for most consumers.”

Epic's antitrust complaint against Apple, which went to trial earlier this year, resulted in a ruling that Apple's anti-steering policies -- which prohibited app developers from offering in-app links to outside payment platforms -- violated California's unfair competition law.

But U.S. District Court Judge Yvonne Gonzalez Rogers, who presided over the trial, said Epic failed to prove that Apple violated antitrust laws.

Rogers also ruled that Epic breached its contract with Apple by offering a version of "Fornite" that allowed consumers to bypass Apple's in-app payment system.

Both Apple and Epic are appealing Rogers' ruling to the 9th Circuit Court of Appeals.