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WASHINGTON (CN) — Google argued in a legal filing Friday that deals to preload its search, app store and Chrome browser apps on smart devices are not exclusive in the same way their deals to set its search engine as the default option on internet browsers are.
U.S. District Judge Amit Mehta had requested the clarification on Tuesday, noting in a minute order that in its proposed antitrust remedy Google suggested the browser deals be limited to yearly agreements, while avoiding any limits on pre-loading deals with Original Equipment Manufacturers (OEMs) and telecom carriers, like Android.
Mehta, a Barack Obama appointee, is set to rule on whether Google should face a major breakup — the Justice Department has suggested he order the divestiture of Google’s Chrome browser and potentially Android — or be subject to a narrower remedy that would allow the tech giant to continue bidding for exclusivity.
He has indicated he will rule later this month.
“The provisions of Google’s PFJ applicable to smartphone and tablet manufacturers reflect the different designs of those devices relative to third-party browsers,” Google wrote, referring to the proposed final judgment. “As a matter of design, Android OEMs consistently have preloaded multiple search access points on mobile devices, including a search widget, a search application and at least one browser.”
Google argued that its proposal would eliminate “any semblance” of search exclusivity on Android devices by barring agreements to promote search or Chrome, unless the agreements allowed the preloading of rival search engines and browsers and stemmed from “access-point-by-access-point competition,” meaning rivals could compete to install their individual search engines or browsers.
An agreement to preload Google Search or Chrome could not condition that license on the carrier refraining from preloading or promoting another search engine or browser, Google said. Further, the agreement for preloading Google Search or Chrome could not be conditioned on the preloading of any other Google app.
“The court’s opinion does not suggest that an agreement subject to these prohibitions would be exclusive in any sense,” Google said. “Accordingly, there is no need to limit the duration of any such agreement to one year.”
The Justice Department has argued that allowing Google to make any such agreement is inherently anticompetitive due to the chokehold it has gained over the internet search market. Its popular products only achieved such status by snuffing out any rivals, according to the government, thus making it unlikely any third party would choose not to preload at least one Google product on their devices.
In a footnote, Google added that it did not propose a one-year limit on distribution agreements for the Gemini Assistant App or Google Assistant app because they were not included in Mehta’s liability decision and excluded as a relevant market by the Justice Department.
“Adding a one-year limit on the term of agreements to promote these apps would be unwarranted, particularly given that ‘when the district court … adopt[s] a forward-looking provision, its discretion is necessarily less broad because, without liability findings to mark the way, it is in danger of imposing restriction that prevent the defendant from forging new routes to serve consumers,’” Google wrote, citing from the D.C. Circuit’s decision in Massachusetts v. Microsoft.
Friday’s filing immediately followed a significant ruling in one of the earliest antitrust challenges against Google, brought by Fortnite developer Epic Games, which could have an impact on Mehta as he nears his remedy decision.
A Ninth Circuit panel on Thursday upheld a 2023 trial decision that the tech giant’s Google Play app store and its billing service constituted an illegal monopoly, reaffirming Epic Games’ legal victory over Google. The ruling paves the way for the developer to bring its Epic Games Store for Android to the Google Play Store.
Epic Games sued the tech giant in 2020 after Google removed Epic’s hit game Fortnite from the Google Play Store after Epic coded the game to bypass Google’s billing services for in-game purchases. Google said this violated an agreement Epic had with Google to use its billing services for in-app purchases.
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