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Cake day: June 8th, 2023

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  • Google made the same argument in this case, but Epic responded by saying that impairing the competition is sufficient to describe the behavior as unlawful. Like Google, Valve control the vast majority of the market, charge a fee that is way above the cost of service, and have rules that make the competitors less appealing. Like this one:

    In response to one inquiry from a game publisher, in another example, Valve explained: “We basically see any selling of the game on PC, Steam key or not, as a part of the same shared PC market- so even if you weren’t using Steam keys, we’d just choose to stop selling a game if it was always running discounts of 75% off on one store but 50% off on ours. . . .”

    (source)


  • If Epic aren’t suing for damages I don’t really see what the goal could be

    As reported by The Verge,

    Epic says it’s asking for three things: freedom for Epic and other developers to introduce their own stores without restriction, total freedom to use its own billing system, and an anti-circumvention provision “just to be sure Google can’t reintroduce the same problems through some alternative creative solution.”

    Judge Donato says the last won’t happen: “We don’t do don’t- break-the-law injunctions… if you have a problem, you can come back.”


  • “Impairment means something is there, it’s being used, it just isn’t as good. Prevented means you shut it down.”

    Epic’s expert Bernheim argues that Google’s expert Gentzkow “ignores four critical aspects of Google’s conduct,” including:

    1. Google impairs competition without preventing it entirely

    2. Google’s conduct targets comeptition as it emerges

    3. Google is dominant

    4. Google shares its Play profits with its competitors

    “When push came to shove, he talked about whether competition is prevented” rather than impaired, says Bernheim.

    The upshot of that: Bernheim believes Epic doesn’t need to prove Google actually blocked competition entirely. In his opinion (for Epic), Epic only needs to show there were no good alternatives to Google Play and Google Play Billing. It doesn’t need to show there were no alternatives at all.

    For example, says Bernheim, Gentzkow presented a chart titled “Was Fortnite Blocked?” showing that revenue tanked on Google Play after the app was kicked off the store, but didn’t tank for Android phones that got Fortnite a different way.

    But “If off-Google Play was a good substitute for Google Play, you’d see when one drops, the other goes up commensurably.” That didn’t happen: demand stayed stable outside of Play, according to the bar graph we just saw. “There’s no indication that any of the people here are substituting to off-Google Play.”