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Google’s CEO is about to drop into the Fortnite trial

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We have spent five days in a San Francisco courtroom watching witness after witness in the Epic v. Google trial. We’ve heard a lot about Google’s app store dealings, mostly from people who aren’t widely known to outsiders. But today, November 14th, we’re expecting to hear from Google CEO Sundar Pichai as he defends Google’s Android empire against antitrust claims from the publisher of megahit game Fortnite.

Precisely 1,188 days ago, Epic sprung a legal trap and accused both Apple and Google of creating illegal monopolies with their respective app stores. It’s a fight that could shape the future of the Play Store, particularly if Epic gets its way.

I’ll be bringing you Pichai’s testimony live from the courtroom right here. Before it starts, here’s a quick guide to the trial so far — including the big themes we’ll probably see in play today.

The trial dynamic: Epic demonizes; Google normalizes and deflates

Epic is making its case first in the trial, and its attorneys get first dibs on questioning the witnesses it calls. It typically spends this time making Google look bad by highlighting some seemingly incriminating detail — like how Google offered Epic $147 million to launch Fortnite on the Play Store because it feared a “contagion risk” if top game developers defected from Play. Then, Epic asks the witness a series of questions designed to make it look like they’re admitting or hiding something.

When Google’s lawyers get a turn, sometimes much later, they explain that we’re simply seeing business as usual. Google is a company that’s fiercely competing to build the best app store and smartphone it can, they argue — not maintaining monopoly profits and suppressing competition out of fear. They demonstrate (sometimes quite successfully) that Epic cherry-picked bits of testimony to make things look more black and white than they are.

This contrast often makes Epic v. Google seem like a battle of simple v. complicated. But complicated can sometimes work in Google’s favor, as we saw yesterday with an aborted OnePlus Fortnite installer deal; while Epic initially made it look like Google blocked the Chinese smartphone maker from effectively preloading Fortnite on its phones, it now seems like OnePlus could have simply decided to forgo some money and status by selecting a different tier of deal with Google.

Pichai recently appeared as a witness in the US v. Google antitrust trial arguing that Google was just a competitive business — expect him to do it again here.

Apple is the magic word

Did Google cut deals with developers to battle the iPhone, or did it cut those deals to protect its profits on Google Play? Google, obviously, has spent a lot of time arguing the former. “You cannot separate the quality of a phone from the quality of the apps in its app store, and that means Google and Apple compete against each other,” it said in its opening testimony. That argument, if a jury buys it, could single-handedly win an antitrust case.

But day after day, Epic keeps pointing out that Google doesn’t mention Apple very often in the internal documents that justified those agreements. In turn, Google is often relying directly on witnesses to explain they were thinking about the iPhone even when they weren’t writing it down. Expect Pichai to keep bringing up Apple… and Epic to keep asking why he didn’t do it more visibly before.

Google inked some sweetheart deals — did it have secret arrangements, too?

Thanks to this trial, we have learned that Google made special secret deals with Spotify, Netflix, and potentially other app developers to get unusually favorable rates when distributing their apps through the Google Play app store. On Thursday, Epic raised the notion that Google executives might have some secret anticompetitive handshake deals with executives at other companies, too — Samsung is one alleged example.

I can think of at least one extremely controversial handshake deal that Google was part of many years ago, but I wonder if Epic has more evidence. If so, I’d expect Pichai to get asked about it during the proceedings today.

Google’s deleted chats keep biting it in the ass

We’ll never know whether Google — intentionally or inadvertently — deleted important evidence in this case. But the fact remains that a lot of evidence might be missing. On the stand, employee after employee at Google has admitted they allowed internal Google Chat messages to be automatically deleted after 24 hours, despite being told to preserve evidence and often conducting official business there. Epic has been driving that point home every chance it gets.

Epic has shown that some higher-ups at Google were asking their colleagues to intentionally “turn history off.” And Pichai himself has made at least one such ask:

An exhibit from the case showing Pichai asking somebody to turn off their chat history.

In fact, Epic has even shown some Google lawyers seemed unaware of their legal obligations, with one joking around with a colleague about how the company tried to create “Fake Privilege” by cc’ing lawyers on emails it allegedly didn’t want seen. This hasn’t sat well with Judge James Donato, who’s overseeing the case; he’s hauling Google’s chief legal officer into court on Thursday to answer some tough questions. If Google can’t explain, the judge has threatened to issue a mandatory jury instruction. While it’s not clear how subtle or obvious that instruction might be, it’s a nudge that might tell the jury, right before they reach their verdict, that they shouldn’t trust Google as much as they otherwise might.

You can absolutely expect Pichai to get grilled about his company’s alleged culture of secrecy, too — and while it’s not part of Epic’s core monopoly argument, it could affect how a jury sees the case.



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