Epic judge says he will ‘break down the barriers’ to Google’s app store monopoly

Judge James Donato just made it crystal clear: Google will pay.

Eight months after a federal court jury unanimously ruled that Google’s Android App Store was an illegal monopoly in Epic vs GoogleDonato held his final hearing on remedies today, and while we don’t yet know what will happen, he repeatedly rejected any suggestion that Google doesn’t need to open its store to competing stores, or that doing so would involve too much work or too much cost, or that the proposed remedies go too far.

“We’re going to break down the barriers, that’s the way it’s going to happen,” Donato said. “The world today is the product of monopolistic behavior. This world is changing.” Donato will deliver his final verdict in just over two weeks.

Although Epic won the jury trial last December, it was now up to the judge to decide how to repair the damage Google’s monopoly had done. In April, Epic announced that it was asking the court to effectively open up the Google Play Store – by forcing Google to allow competing stores within its own Google Play Store and also giving them access to all Google Play apps.

This way, an Android user can freely decide whether he prefers Google or someone else as an app provider.

Surprisingly, today’s final hearing on the remedies began with both parties approving that opening up the Play Store was doable and perhaps not even that difficult – but they argued about how long it would take, how much it would cost, and, most importantly, whether Google would be able to subject every app in every competing store to human review by Google before adding those stores to Google Play.

Google argued that the company should not be forced to offer a Nazi app. For example, “If the American Nazi Party app came to Play, Play would say no,” said Google’s lead attorney Glenn Pomerantz.

But Gary Bornstein, Epic’s lead attorney, later countered: “If Google actually reviews every single app in a third-party store, it gives Google the gatekeeping power it has already abused.” And Judge Donato made it clear that he plans to prohibit any nondiscriminatory behavior when it comes to how Google treats competing app stores, down to human review.

In his closing argument, Google lead attorney Glenn Pomerantz came close to saying that the direction Judge Donato was seeking was akin to Soviet-era communism. He argued that courts had previously said that “central planning” that would force Google to offer competing app stores to create new competition was not permissible. (Donato had previously said, “The whole point of this is to plant a garden of competing app stores.”)

But Donato said he would not “micromanage” Google here or centrally plan the results. Instead, he would order Epic and Google to set up a “technical compliance and monitoring committee” consisting of one representative from Epic, one from Google and a third agreed upon by both, to arbitrate the technical details and report to the court approximately every 90 days.

Donato told Google: “When a mountain of bad behavior has been built, you have to move that mountain. And that’s exactly what’s going to happen.”