Google asks appeals court to pause Play Store changes in Epic case

Google today filed an appeal in the Epic case and wants the 9th Circuit Court of Appeals to “pause the proposed changes to Android and Google Play” until the legal process plays out.

On October 7, a District Court judge ruled that Google:

• “…may not prohibit a developer from communicating with users about the availability or pricing of an app outside the Google Play Store, and may not prohibit a developer from providing a link to download the app outside the Google Play Store.”
• “…may not require the use of Google Play Billing in apps distributed on the Google Play Store, or prohibit the use of in-app payment methods other than Google Play Billing.”

There are a few other restrictions dealing with developers and OEMs that come into effect on November 1 and will last for three years, while the biggest changes deal with requiring the distribution of third-party stores in Google Play and giving them access to the Play catalog of apps. Google has eight months to implement that, with those two requirements also in place for three years. 

• Related: Microsoft will let you buy and play Xbox games through Android app next month

Lawyers for Google outline the appeal as such:

The Liability Verdict Is Fatally Flawed

• The District Court Committed Multiple Legal Errors In Allowing Epic To Exclude Apple From The Rule-of-Reason Analysis
• The District Court Disagreed With Other Circuits On Serious Legal Issues That Present Substantial Appellate Questions

The Injunction Is Legally Flawed

• The Injunction Makes The Court—And Its Technical Committee—Central Planners For Vague Prohibitions
• The Injunction Flouts Foundational Legal Limits On Remedial Authority
• Epic Failed To Prove Article III Standing

In asking for a stay until the appeal process plays out, Google says that three weeks to implement the first set of changes create an “unacceptable risk of safety and security failures within the Android ecosystem,” with the filing even pointing to what happened with Crowdstrike a few weeks ago as a warning against “moving too fast.” 

The appeal also bring up a point frequently brought up in discussions of the case:

It is pause-inducing that Apple, which requires all apps go through its proprietary App Store, is not a monopolist, but Google—which built choice into the Android operating system so device makers can preinstall and users can download competing app stores—was condemned for monopolization. 

The Epic v. Apple case, which the latter mostly won, ended when the Supreme Court declined an appeal earlier this year. Apple still must let developers link to other payment systems.

You can read the full 41-page appeal here, while Google also published a fact sheet.

Google’s filing also revealed that there are “100-million-plus U.S. users of Android devices,” which is in line with third-party estimates. There also also “over 500,000 U.S. developers.”

Update 10/17: Epic responded to Google’s appeal with this statement on Thursday morning:

“The jury’s verdict and the court’s injunction were clear: Google’s anticompetitive Play Store practices are illegal. Google is merely fear mongering and falsely using security as a pretext to delay the changes mandated by the court. This is Google’s last ditch effort to protect their control over Android and continue extracting exorbitant fees. The court’s injunction must go into effect swiftly so developers and consumers can benefit from competition in the mobile ecosystem.”