Google’s attorney, Glenn Pomerantz, was in the hot seat at the Fortnite court, arguing for portions of an exhibit showing Google’s User Choice Billing Agreement with Spotify to be sealed. The agreement allowed Spotify to use its payment system for subscriptions, while still providing a cut to Google.
Pomerantz expressed concerns, suggesting that the disclosure of the Spotify deal could be detrimental to negotiations with other parties but didn’t specify who these other parties were. He said it would be okay for “two numbers” to be presented to the jury, but he did not want them revealed aloud.
The court case between Epic and Google all began in 2020 when Epic decided to fight the “Apple tax” and “Google tax” imposed on their respective app stores. Here, Spotify was a significant ally for Epic in the Coalition for App Fairness lobbying group. But by 2022, Spotify had partnered with Google in a limited pilot program called “User Choice Billing,” allowing it to bypass Google’s full fee on Android.
The legal battles between Epic and Google were contributing to concerns about Google’s anticompetitive practices and the future of Google’s app store. Epic’s allegations stemmed from in-app purchase fees, stating that Google’s demands were damaging to Android’s ability to provide a secure user experience and compete with Apple’s iOS.
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Google had presented User Choice Billing as developers paying four percentage points less, with the implication that Spotify was receiving special treatment. It’s a cause for concern among other app developers who might desire similar privileges if they learned the terms of the Spotify deal.
However, skepticism remains about Spotify’s User Choice Billing deal, and Epic’s lead attorney, Gary Bornstein, emphasized that there is a lower rate than what’s been publicly disclosed. Epic has maintained that the proposal is not a real option for developers and doesn’t exempt Google from anticompetitive behavior.
While Judge Donato initially saw an opportunity to solve Epic’s complaints with User Choice Billing, he eventually realized that offering this option did nothing to address the underlying issues.
Additionally, Google’s other deals, such as its multibillion-dollar agreements to be the default search engine on phones and browsers, were also discussed during the trial. A central issue in an ongoing antitrust trial brought by the Department of Justice, Google’s reluctance to disclose numbers related to such deals and their financial implications are at the center of the dispute.
Amidst all this, the question remains about whether the Spotify deal numbers will be disclosed. Although Donato expressed his displeasure with waiting until the last minute to decide evidence admissibility, the final decision has not been made. He emphasized that while he wouldn’t want redacted documents in court, he would allow specific portions of them to enter the evidence.
With so much at stake in the Epic v. Google case, all eyes are on the court proceedings. The battle between tech giants like Epic, Google, and Spotify is bringing to light some of the potentially harmful agreements and practices that could negatively impact options for developers and the competition landscape of the app economy.
