Epic Games, Google head to court over epic Play Store cut

Fortnite-maker largely lost against Apple, but can it beat the Chocolate Factory?

Another front is opening in Google's antitrust war today, as a trial between the search giant and Fortnite dev Epic Games over Google's Play Store fees is kicking off in a California court. 

The case goes back to 2020, and was filed shortly after Google booted Epic's popular battle royale game Fortnite from the Play Store when the video game maker decided to circumvent Google's in-app purchase system to avoid paying associated fees. 

A lot of things have changed, however, since Epic made its anticompetition argument against Google's Play Store – and Apple's App Store, for that matter – which may make the case a bit of a hard sell. 

Match Group, which owns Match.com, Tinder, OKCupid and other online dating services, was set to be a related party in the Epic v Google lawsuit, but announced a settlement with Google in its Q3 earnings letter [PDF], released on October 31. Per Match, it agreed to drop the suit and will begin implementing Google's User Choice Billing system, allowing it to steer users to third-party in-app transactions. 

That said, User Choice Billing isn't a total exemption from Google Play fees - it just reduces them by 4 percent, meaning a developer the size of Match would still have to pay an 11 percent fee on subscriptions and 26 percent on à la carte transactions rang up outside the Play Store, an agreement campaigners in the UK have called "a bad deal for developers and consumers." 

Nonetheless, it leaves Epic facing Google in a one-on-one duel of the rates, as the other lawsuit being considered along with Epic's and Match's was settled even earlier in September. That case saw 36 US states and Washington, DC sue Google over the same issue, with attorneys general from across the country arguing the 30 percent commission on in-app purchases was anticompetitive. The settlement was light on details, but again, it means Epic is facing Google alone, and in a tenuous position. 

"The truth is that Epic simply wants all the benefits that Android and Google Play provide without having to pay for them," Google VP for government affairs and public policy Wilson White said in a blog post last week that Google pointed us to when we asked for comment on the trial. 

Epic, said Google, "claims that developers have no other choice than to distribute their apps through Google Play," but that's not true, Google asserts, especially since the introduction of User Choice Billing. Google also allows distribution of apps through third-party stores and directly from developers, which it cites is how Epic has distributed Fortnite since Google removed it from the Play Store in 2020. 

Epic claimed in court filings that were redacted, but later unsealed by the judge in the trial, James Donato, that Google paid developers to keep them from jumping ship and forked over millions to ensure Play Store exclusivity. Epic claimed that Google offered it up to $208 million over three years to keep it in the Play Store.

Epic's Apple suit crumbled, too

Along with its teammates dropping from the Google match, Epic has also taken a few punches in previous battles against Apple, which it accused of similar anticompetitive practices after it was booted from the App Store for, as mentioned, similarly circumventing Apple's in-app purchase fees. 

Epic scored a bit of a win in its fight against Apple a few years ago when, despite much of its case being dismissed, the judge overseeing proceedings decided Apple wasn't allowed to use "anti-steering" rules to keep devs from pointing users to outside sources of payment for in-app transactions. 

Of course, appeals have followed, but those have largely upheld the previous decision. However, the rule allowing app developers to link to outside payment sources has been stayed pending Apple's appeals to the US Supreme Court. With its only real win in the Apple case in deep freeze, Epic asked the Supreme Court to lift the stay, but was told no

Apple is well known for its walled garden approach to iOS, with the mobile operating system far less open than Android but with less malware finding its way into the App Store. With its lockdown on user liberty, it could be argued that Apple errs on the side of being anticompetitive in order to protect its users. With Epic unable to get an antitrust win out of its fight against Apple, however, the Fortnite maker may have a rough battle ahead of it against Google. 

"Android is the only major mobile platform that gives developers multiple ways to distribute apps," Google said, citing the Samsung Galaxy Store as another example of a legitimate, OEM-bundled Android app store where Fortnite is readily available for Samsung Galaxy users. 

Google is facing other antitrust lawsuits right now, including a high-profile one from the US Department of Justice, which has accused it of being an online search monopolist.

Epic has also had its own run-in with the feds recently, settling a case with the US Federal Trade Commission in December for $520 million over accusations it violated children's privacy and used dark patterns to trick users into making purchases.

Epic declined to answer our questions on the suit headed to trial today. ®

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