Judge in Epic. v. Google Comes Out Swinging in Remedy Hearing

US District Judge James Donato was harshly critical of Google during a remedy hearing in Epic v. Google, making it clear he will come down hard on the firm in the wake of its antitrust defeat at the hands of Epic Games.

In December, a federal jury needed just four hours to determine that Google owns an illegal monopoly over Android app distribution with its Google Play Store and that Google leveraged this dominance to harm competitors, developers, and customers. It reached secret agreements with certain companies to relax its app store rules and fee structures, paid hardware makers to bundle its apps and services, and illegally tied its in-house billing system to the Play Store.

But it’s up to Judge Donato to determine how to punish Google for its sins. He asked both sides to present proposals for this remedy. Epic’s submission included ideas about opening up Android app distribution and in-app payment systems, and opening up the Google Play Store app catalog to third parties for a fixed period. Google’s response was to deny it had done anything wrong, and to argue that opening up Android to alternative app stores posed a security risk to customers and that the work this would require was prohibitively expensive and time-consuming.

But Judge Donato, who practically begged Google to settle with Epic Games ahead of the jury verdict, is not impressed by this ruse.

“We’re going to tear the barriers down, it’s just the way it’s going to happen,” Judge Donato told Google’s lawyers during the hearing, meaning that Google will open Android, the only question is how. “The world that exists today is the product of monopolistic conduct. That world is changing.”

“When you build a fence to keep everyone out, there is going to be a stampede when you finally open the gate,” Donato told Google’s lawyers. “You shouldn’t have built a fence in the first place.”

As for the time element–the lawyers argued the proposed changes would take over a year to implement–Donato told them, “[You’re] Google. You can do better than that.”

“Google foreclosed competition for years and years and years,” he added. “We’re opening the gate now and letting competitors come in.”

Google also tripped up badly when it argued that it should be able to review every app that rival stores will distribute on Android. “If the American Nazi Party app came to [the Google Play Store],” Google lead attorney Glenn Pomerantz said, using an extreme example, “[We] would say no.” But the remedy Judge Donato will impose will be designed to strip away Google’s illegal control over Android app distribution, not continue it.

“When you have a mountain that’s built out of bad conduct, you have to move that mountain,” Donato told the company’s lawyers. “That’s what’s going to happen. I have no intention of having a highly detailed decree that ends up impairing competition.”

While the details of Donato’s eventual ruling are still up in the air, he noted that he would order the two companies to create a technical compliance and monitoring committee to ensure that Google adhered to its coming legal requirements. “The whole point of this,” he said, “is to grow a garden of competitor app stores.”

Android is about to open up.