The conflicts that led to Epic Games spending so much of its time in courts around the world over the past few years are only partly related to its business model. The other main contributor is the style with which it pursues its goals. From the beginning, the gaming giant sought to bludgeon the major app stores into acquiescing to their demands, by blatantly flouting developer agreements and ultimately suing and pursuing legislation to reshape the stores to fit their needs. This legislation and the lawsuits, of course, would result in a transfer of money from app stores to Epic Games, undermining the value small app companies get from the stores in the process. To no one’s surprise, the remedies they now propose to a federal court in California—following a jury verdict in their favor—are predictably hostile to small app company interests.

The Federal Trade Commission’s (FTC’s) record-breaking settlement with Epic Games under the Children’s Online Privacy Protection Act (COPPA) provides all the background you need to understand the proposed remedies. As we discussed in a letter to the Senate Commerce Committee last year, Epic Games has trouble staying away from practices that trick people into spending money accidentally, while making it nearly impossible to undo those transactions. The major app stores’ terms of service make these tactics difficult because they discourage deceptive practices that harm consumers. This has always placed a sword of Damocles over the heads of Epic Games’ management. Aware of the disfavored status their underhanded ways produced, the solution Epic Games has formulated is to run its own store, free from more scrupulous guidelines and free from any distribution fee (even though they also charge a distribution fee on their store). But in doing so, they want to rely on the trust consumers place in the major app stores and operating systems, earned by more dependable actors.

Epic Games’ lawsuit against Apple, seeking essentially the same outcome as its complaint against Google, failed in large part because the measures the App Store takes to prevent and remove consumer protection risks are procompetitive and good for consumers—and should not be eliminated to protect a specific competitor. In the Google case, it is clearer than ever that all Epic Games wants is for the government to subsidize their mecca of mismanagement on top of the world’s most popular mobile operating system—while benefitting from a government-mandated exception from its rules. The problems the remedies would create also highlight why considering remedies after deciding liability in complex antitrust cases like these can lead to perverse outcomes. As we wrote about the FTC v. Amazon case, unburdening the plaintiff from having to explain what kind of conduct would be more competitive than the conduct being challenged robs the factfinder of critical context against which to determine liability.

 Since that ship has sailed in this case, let’s turn to Epic Games’ proposed remedies, in which it seeks these, among others:

  • No Agreements Not to Compete. In this (deceptively titled) proposed set of remedies, Epic Games seeks government-imposed walls around its own proposed Android-supported garden. The remedies would generally prohibit Google from taking measures to lure developers away from Epic Games’ store, asking the court to take the ludicrous step of eliminating competition as a remedy for antitrust liability. On this score, Epic Games knows it cannot beat the Google Play store at its own game—especially with a reputation marked by deception—so the solution has to include a court order for Google Play not to compete against Epic Games’ store.

 

  • Download Remedies. In this proposed set of remedies, Epic Games asks the Court to eliminate any barrier at all to downloading an app from a third-party source. Because this is virtually the only way malware appears on mobile devices, mandating “naked sideloading” is obviously a huge problem for small businesses distributing through the stores. Nonetheless, in light of Epic Games’ plans of creating an empire predicated on shady in-app purchase practices, it is not so hard to understand why it doesn’t want to worry about the threat of removal for such petty infractions as deceiving consumers.
  • Remedies Concerning Access to Android and Other Google Products and Services. The corollary to the Download Remedies, these proposed solutions would mandate open access by apps downloaded via third-party stores and the third-party stores themselves to consumers’ smart devices and sensitive personal information. Here again, the proposed remedy would break open Android so Epic Games and cybercriminals can loot it, leaving small developers with an unmanaged store.

Ultimately, Epic Games’ motivations in advancing these proposed solutions matter less than how they would affect small companies. Nonetheless, they help explain why the plaintiff is pursuing them and why they lack merit as solutions to alleged antitrust liability and are instead only helpful for a single, unworthy competitor. For small app companies’ sake, the judge in this case must reject the proposed remedies, just as Congress must reject the legislative proposals to achieve these outcomes, the American Innovation and Choice Online Act (AICOA) and the Open App Markets Act (OAMA).