Epic v. Google: everything we’re learning live in Fortnite court

“Impairment means something is there, it’s being used, it just isn’t as good. Prevented means you shut it down.”

Epic’s expert Bernheim argues that Google’s expert Gentzkow “ignores four critical aspects of Google’s conduct,” including:

1. Google impairs competition without preventing it entirely

2. Google’s conduct targets comeptition as it emerges

3. Google is dominant

4. Google shares its Play profits with its competitors

“When push came to shove, he talked about whether competition is prevented” rather than impaired, says Bernheim.

The upshot of that: Bernheim believes Epic doesn’t need to prove Google actually blocked competition entirely. In his opinion (for Epic), Epic only needs to show there were no good alternatives to Google Play and Google Play Billing. It doesn’t need to show there were no alternatives at all.

For example, says Bernheim, Gentzkow presented a chart titled “Was Fortnite Blocked?” showing that revenue tanked on Google Play after the app was kicked off the store, but didn’t tank for Android phones that got Fortnite a different way.

But “If off-Google Play was a good substitute for Google Play, you’d see when one drops, the other goes up commensurably.” That didn’t happen: demand stayed stable outside of Play, according to the bar graph we just saw. “There’s no indication that any of the people here are substituting to off-Google Play.”