Google was recently ordered to make changes to its Google Play Store, a digital application, or app, storefront for Android mobile device users, in connection antitrust litigation against the tech company. The injunction comes after a jury determined last year, in a long running suit brought by Epic Games, that the Play Store is an unlawful monopoly.
On October 7, 2024, the district court ordered that Google must adopt substantial structural relief, designed to jump start competition among app stores on Android devices. Among the most significant of the remedies is the requirement that Google allow its competitors access to the Play Store’s catalog of apps, as well as the ability to offer those apps for sale through their own competing stores. See In re Google Play Store Antitrust Litig., No. 21-md-2981, ECF Nos. 1016, 1017 (N.D. Cal.).
In ordering this injunctive relief, the court noted that while some of the remedies prohibit Google from engaging in conduct that the jury found was anticompetitive, others were designed to “remediate the anticompetitive ‘consequences’ of Google’s illegal conduct,” to “undo the consequences of Google’s ill-gotten gains.” ECF No. 1016, at 9, 11. The latter category includes the catalog access remedies, which seek to “level the playing field for a discrete period of time so that rival app stores have a fighting chance of getting off the ground despite network effects and the disadvantage of offering a ‘catalog of app/games’ that is too ‘limited’ to attract users and developers in a two-sided market.” Id. at 12.
Google has already appealed the decision to the Ninth Circuit, and the parties will brief the appeal in the coming months. But for now, it appears that Google will need to adopt these remedies and allow other app stores to access its developers’ apps. This will provide a good test case whether antitrust remedies designed to remediate longstanding antitrust violations can work in the marketplace.
Why Not Apple?
While it looks like Google will need to modify its business, Apple thus far has avoided having to give up any meaningful control over its App Store for iOS. With the Supreme Court’s decision in January 2024 denying certiorari, Epic’s parallel suit against Apple has now finally concluded. See Epic Games, Inc. v. Apple Inc., 559 F. Supp. 3d 898 (N.D. Cal. 2021), aff’d, 67 F.4th 946 (9th Cir. 2023), cert. denied, 144 S. Ct. 682, 217 L. Ed. 2d 382 (2024). There, Epic was unsuccessful, largely based on the court’s finding that Epic failed to satisfy its burden of proof regarding its proposed relevant markets.
Given the differences between these two dominant operating systems, this result is a bit perplexing. As both courts recognized, Android users enjoy relatively greater freedom to download apps on their devices, including from alternative app stores and from websites (even if Google has unlawfully limited those alternatives, as the jury found). On iPhones and other Apple devices, there are no alternatives to the App Store. It would seem reasonable to assume that if Google has a monopoly over app distribution, certainly Apple does too. What explains Apple’s ability to avoid judgment and hold on to this control?
In the Play Store case, Epic offered markets limited to a single operating system, and the jury found that Epic sufficiently proved those markets. Epic failed to do the same in the Apple case, which was decided first. It seems Epic learned from its experience with Apple. Whatever the case, whether the Play Store court should have reached an outcome consistent with the Apple court is a question for the appeal.
More to Come
The story of antitrust law’s scrutiny of mobile app distribution is still being written. In addition to Google’s appeal, the Department of Justice is pursuing antitrust claims against Apple for monopolization of smartphone markets. That case, filed earlier this year, attacks, among things, Apple’s control over app distribution, which the DOJ asserts has allowed Apple to monopolize smartphone and “premium smartphone” markets. United States v. Apple, No. 24-4055 (D.N.J.), ECF No. 86. Apple has moved to dismiss the case, and a decision is pending.
As Google’s appeal and the DOJ’s case against Apple proceed, mobile phone users and developers will need to continue to wait to see whether these two tech behemoths will be forced to allow competition in the distribution of apps.
Disclosure: the author’s spouse is employed by Google and works in privacy.
