• by Wendy Davis  @wendyndavis, February 2, 2024

A jury's recent decision that Google's Play store policies violated antitrust laws is both unreasonable and inconsistent with a 2021 ruling in a recent antitrust case against Apple, Google argues in papers filed Thursday with U.S. District Court Judge James Donato in San Francisco.

The company is seeking a directed verdict in its favor, or else a new trial.

Google's motion comes in a battle with Fortnite developer Epic Games, which sued both Google and Apple in 2020 for allegedly violating laws against monopolies.

A jury sided against Google in December, concluding that company created or maintained an illegal monopoly in two “markets” -- Android app distribution, and Android in-app billing. The jury also found that Google wrongly tied company's ability to distribute through the Play store to Google's payment system.

The verdict came more than two years after a different federal judge -- U.S. District Court Judge Yvonne Gonzalez Rogers --ruled Epic failed to prove similar claims against Apple.

Google argues in its new motion that the verdict is inconsistent with Rogers' ruling on key points -- including that Google and Apple compete to distribute apps.

If, as Rogers ruled, both companies compete for app distribution, an “Android app distribution” market wouldn't exist, Google argues. Instead, any market for app distribution would have to include both companies, at a minimum.

“In Epic v. Apple, as here, Epic argued that Google and Apple do not compete for app distribution or in-app purchases,” Google writes, adding that Rogers “rejected that argument after a bench trial and was affirmed on appeal.”

Google adds: “Issue preclusion applies and should have barred Epic from seeking a different result here.”

Google's battle with Epic dates to 2020, when the game developer sued Google (and Apple) for allegedly running afoul of antitrust laws. Epic did so soon after after both companies removed Fortnite from their mobile app marketplaces for allegedly attempting to bypass Google and Apple commissions on in-app purchases.

Google and Apple charge a commission on purchases made in apps that have been downloaded from Google Play or the App store. Google, unlike Apple, has always allowed users to “sideload” apps -- meaning to download them from sources other than Play Store. Google also doesn't charge commissions on in-app purchases from sideloaded apps.

Epic claimed Google only “nominally” allows sideloading, but thwarts the process by displaying warnings about potential security risks. (Google -- which was also sued by a coalition of state attorneys general -- said in September it would “streamline” the sideloading process as part of a settlement with the states.)

Google argues in its new papers that a reasonable jury couldn't have found the sideloading warnings anticompetitive.

“Epic failed to put forward sufficient evidence that the sideloading warnings substantially harmed competition,” Google writes. “There was no evidence at trial that warnings stopped any users who wanted to sideload from doing so.”