The judge presiding over Epic’s lawsuit against Google has dealt the latter a major blow, saying Google must fully support third-party app stores, including them in the Google Play Store.

Epic Games sued both Apple and Google, although with drastically different results. Apple won its case on all but one—relatively minor—point, while Google lost its case. In the wake of the loss, Judge James Donato laid out the remedial measures Google must take. The measures include prohibiting Google from incentivizing developers to launch their apps on Google Play first, forcing the company to include third-party app stores (think Aurora and F-Droid) in the Google Play store, give third-party apps full access to Google Play’s full catalog of apps, and allow developers to use outside payments systems.

Needless to say, Google has already stated their intention to appeal, and it seems they have a strong case. Lee-Anne Mulholland, VP of Regulatory Affairs, outlined the company’s case.

Today, the court overseeing our ongoing U.S. legal proceedings with Epic Games ordered changes to Android and Google Play, requested by Epic. As we have already stated, these changes would put consumers’ privacy and security at risk, make it harder for developers to promote their apps, and reduce competition on devices. Ultimately, while these changes presumably satisfy Epic, they will cause a range of unintended consequences that will harm American consumers, developers and device makers.

These Epic-requested changes stem from a decision that is completely contrary to another court’s rejection of similar claims Epic made against Apple — even though, unlike iOS, Android is an open platform that has always allowed for choice and flexibility like multiple app stores and sideloading.

Mulholland then goes on to highlight the specific areas Google’s appeal will target.

• Apple and Google compete directly for consumers: The decision rests on a flawed finding that Android is a market in itself. In contrast, the Apple decision, upheld on appeal, rightly found that Android and iOS compete in the same market. This is obvious to anyone who has bought a smartphone. Walk into a store that sells smartphones and you’ll see the options side-by-side — Android phones from companies like Samsung, Motorola and many others competing right next to Apple’s iPhone. People choose between these phones based on price, quality and security.
• Google and Apple compete directly for app developers: The decision ignores what every developer in the world knows — they have to prioritize investing in developing for iPhones and Androids. Developers have finite resources and have to decide how much time and money to devote to building and updating their apps for each platform. Like any business, Google wants developers to offer their best features for Android and to release them on Android first. So we build tools, run training programs and invest in making it as easy as possible to develop for Android. Apple of course does the same — competing to convince developers to prioritize iOS.
• Android is open and Google Play is not the only way to get apps: The decision fails to take into account that Android is an open platform and developers have always had many options in how to distribute their apps. In fact, most Android devices come preloaded with two or more app stores right out of the box. Developers have other options too, such as offering their apps directly to users from their websites. For example, Epic Games has made its popular Fortnite app available to Android users through the Samsung Galaxy Store, sideloading, and the Epic Games Store – all while Fortnite was not distributed through Google Play. These are options that developers have never been able to offer to their American users on iPhones.

The Apple Precedent

Google is not wrong to compare itself favorably to Apple in this context. Apple truly does have a walled garden around its iOS App Store, a walled garden Epic was eager to see blown wide open. In that case, Judge Yvonne Gonzalez Rogers ruled that Apple’s approach did lead to security and privacy benefits to users—both in the narrow definition Epic was concerned with and the broader definition Apple was working with.

Thus, the Court finds that centralized distribution through the App Store increases security in the “narrow” sense, primarily by thwarting social engineering attacks.

As with objectionable content, Epic Games responds by showing that scams still slip through app review.536 For the same reasons, this anecdotal evidence does not show that scams and other fraud would not be higher without app review. Thus, the Court finds that app distribution restrictions increase security in the “broad” sense by allowing Apple to filter fraud, objectionable content, and piracy during app review while imposing heightened requirements for privacy.

Similarly, Judge Rogers found that Apple’s stewardship of its ecosystem did have at least some benefit to developers.

Third, the evidence on developers is mixed. On the one hand, developers experience delays and mistaken rejections that would not occur with sideloading or distribution through stores without app review. On the other hand, developers benefit from the safe environment created by the App Store. Based on a trusted environment, users download apps freely and without care, which benefits small and new developers whose apps might not be downloaded if users felt concern about safety. This is consistent with the indirect network effects identified by Dr. Schmalensee: the small burden on developers maintains a healthy ecosystem that ultimately benefits both sides. Thus, the evidence shows that developers both benefit and suffer from app distribution restrictions.

Interestingly, security experts agreed with Apple’s insistence, and Judge Rogers, that security is improved by Apple’s stewardship.

“If Epic were to prevail, competition for higher quality device security would be stifled, and courts would be forced into unwanted regulatory postures that would open the door for greater risk of security threats,” wrote a group of former defense, CIA, NSA, and National Security Council officials.

Similarly, Roblox also voiced its support of Apple during its case.

“Apple’s process for review and approval of apps available on the App Store enhances safety and security, and provides those apps greater legitimacy in the eyes of users,” Roblox wrote. “This is an important benefit that all apps, including Roblox’s, enjoy by choosing to be a part of Apple’s ecosystem.”

As Mulholland points out, Google already allows users to sideload apps on Android, including third-party app stores. This writer, for example, already uses F-Droid on a stock Pixel 9 Pro Fold and has installed a number of apps from that source. In contrast, Apple still does not allow sideloading of any kind.

Epic’s Disingenuous Tactics

In a blog post in May 2024, Google minced no words in saying that Epic’s case all about benefiting Epic, not users.

Epic’s proposed remedies were all clearly designed to only benefit itself. They would harm the Android ecosystem, and competition in general, by creating security and privacy risks, depriving developers and OEMs of key business opportunities, and undercutting Google’s ability to support our investments in Android and Google Play.

Epic has a history of disingenuous behavior, in the context of this legal drama. For example, Epic first tried to bypass Apple and Google’s rules on in-app purchases, only suing when both companies banned Fortnite from their app stores. The company even asked for a temporary injunction that would force Apple to reinstate Fortnite to the App Store while the case played out, a request that Judge Rogers denied.

In our coverage of the case at the time, WPN pointed out the problem with Epic’s actions.

It was this action that led many to believe Epic intentionally orchestrated the ban, since the company stood to lose nothing by leaving the status quo intact while pursuing legal action. Had Epic won, any judge would have retroactively awarded damages. Instead of waiting for that, however, Epic chose a course of action it knew would lead to a ban. That action did not seem to sit well with Judge Rogers.

“In my view you cannot have irreparable harm when you create a harm yourself,” she said in response.

Conclusion and Prediction

Given Judge Rogers’ decision, which she reached in late 2021, it is difficult to see how or why Judge Donato reached the conclusion he did.

Not only did Judge Rogers’ decision exist as a precedent, but, as the company points out, Google is already far more open than Apple. After Apple prevailed, despite maintaining far more of a walled garden than Google does, it is almost unfathomable that Google lost as badly as it did, let alone is facing the remedial action it is.

Our bet is that much of Judge Donato’s decision is overturned on appeal. The one part that is likely to stand is the ruling that Google must allow developers to use outside billing options, much like Judge Rogers ruled that Apple must allow developers to point users to outside payment options—in the only point Epic won in its case against Apple.