Google files a counterclaim in Epic Games lawsuit, saying it’s owed financial relief

As the Apple v. Epic Games lawsuit goes under appeal, Google on Monday afternoon filed an answer and counterclaim in the Epic Games’ antitrust litigation against the company. The tech giant and Android maker denies Epic’s allegations of antitrust behavior and instead says that it’s owed relief, as Epic Games breached the Google Play Developer Distribution Agreement (DDA) by allowing Fortnite players who download the app through Google Play to use Epic’s own payment processing technology.

This situation is similar to what took place on the App Store, where Epic Games updated its app to workaround App Store policies, and then facilitated payments through its own payments system, in violation of its legal contract with Apple. The court’s decision in Apple’s case was that Epic owed financial relief to Apple, to the tune of $6 million dollars.

Epic Games did much of the same thing on Google Play, the counterclaim alleges. Last year, Epic submitted a build of Fortnite to Google Play which used Epic’s own direct payments system and not Google Play Billing. This submission was immediately rejected for failing to comply with Google’s policies. Epic then submitted a compliant version in April 2020, which Google now describes as “an act of deception designed to provoke litigation.”

The new version had concealed Epic’s payment system in an update that was sent to both Apple and Google’s app stores. This would allow Epic to switch over to its own payment system by applying a server-side configuration change, or “hotfix,” without Google’s knowledge.

That switch was flipped on August 13, 2020. It allowed Fortnite users to choose between Google Play Billing and Epic’s own direct payments system. This move was meant to trigger the game’s rejection from the app stores, paving the way for Epic to pursue its planned litigation. Google said it notified Epic Games on the same day the hotfix was applied that it was in violation of the DDA, Google’s Malicious Behavior Policy and the Google Play Billing Policy, and removed Fortnite from Google Play. However, it did not disable Epic’s account so the game maker could resubmit a compliant version.

However, Android users who had downloaded the game from Google Play could still use Epic’s own payments system even after the app was pulled down, allowing Epic to evade its contractually obligated service fee to Google, the counterclaim states. Google is asking the court to award restitution of this loss of feeds, in addition to other damages, attorney’s fees, interest and any other relief the court deems necessary.

“Epic, a multibillion-dollar company backed by two of the world’s largest video game developers, has profited immensely from the safe, secure platform provided by Google Play, a platform for which it pays a fee equivalent or less than that charged by other major platform providers,” the counterclaim states. “Not satisfied with those immense profits, it entered into a legal agreement with Google with which it never intended to comply, deceiving Google and concealing its true intentions to provoke a legal and public relations confrontation that continues to this day. Its actions have put its own users at risk, have harmed Google, and are deserving of relief from this Court,” it says.

Epic Games has no further comment on the new filing.

However, Epic’s position has been that Apple and Google’s requirement to use their own in-app payment systems exclusively is a monopolistic practice that disadvantages developers. In Apple’s case, the court agreed that Apple should not block developers from sharing a link to other payment methods inside their own app or communicating to customers. It did not declare Apple a monopoly.

But Google’s situation is a bit different, as Android already allows for sideloading apps — that means there’s another method of reaching Android users outside Google Play, making an antitrust claim more difficult.

Google has also filed its answer with the state’s attorney general, developer and consumer cases.

2021.10.11 (000183.03) Redacted Version of Defendants’ Answers, Defenses, And Counterclaims to Ep by TechCrunch on Scribd