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Lewis Crofts Profile picture
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30 Sep, 4 tweets, 3 min read
.@sundarpichai could've known Google was acting abusively, given he blogged about similar @Microsoft conduct in 2009.

That's the nub of @EU_Commission response to @Google claim that the 4.34bn fine over Android contracts was 'novel.'

This p.m. at #ECJ, it was all about money/1
Google took on the "staggering" antitrust fine in its pleas today, saying it should have been less (or zero) given it couldn't have known that EC would hit an open platform like this.

EC said: the case was about tying software to operating systems. You knew about that already/2
In fact, @sundarpichai had blogged about @Microsoft doing that with its browsers. So, come on guys, it wasn't out of the blue for you.

Here's the blog post: publicpolicy.googleblog.com/2009/02/browse…
/3
Google argued EC had treated it more harshly than @intel & @Microsoft Its behavior wasn't as hard core as theirs. The platform was innovative

EC said: those comparisons are wrong.

The judge flirted with difference between "intention and negligence" & if it matters /ends

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Lewis Crofts Profile picture
1 Oct
My wrap on final session of #GoogleHearing.

Google went hard on benefits Android has created, creating platform that spurred competition. It said it has right to promote Android & not rest on its laurels.

EC said: G “gave itself the laurel wreath before race had started”/1
Google said EC had failed to prove preinstallation was anticompetitive because other apps/services could be downloaded easily & accessed through browsers.

EC said G execs knew full well their success rested in “not making its services optional.” /2
Consumers argue that there is a “status quo bias” where users stick with the stuff that comes on the phone.

Google argued previously that there was nothing on behavioural economics in the @EU_Commission #antitrust decision & doubting their value here /3
Read 11 tweets
Lewis Crofts Profile picture
1 Oct
#GoogleHearing winds up today. Closing arguments from @Google and @EU_Commission

This will be a set-piece affair & judge already indicated last night he’s done with questioning. So, it’ll be more like:
Lawyers use this session to a) hit their strongest arguments again, b) address some lingering doubts by the judges to try to change their minds, c) make sweeping statements about the importance of X or Y for the future of the law/business. /2
Danish blue cheese came up repeatedly over 4 days as an analogy for market share, due to the Danish judge leading the questions. Expect some tortured references to that. /3
Read 6 tweets
Lewis Crofts Profile picture
30 Sep
Last volley from #GoogleHearing today & it was important.

EU judges wanted to know: if we side with Google on one slice of their case does it destroy the whole @EU_Commission #antitrust decision?

Essentially, court is exploring the prospects of a partial @Google win /thread
This was all couched as "hypothetical" by judge Frimodt Nielsen (& I've seen other hearings where this happens) but it shows court is working out consequences of accepting at least parts of @Google appeal.

Why is this a tricky legal?

Well, funny you asked. Let me tell you. /1
Imagine the EC decision is a Greek temple with four pillars.

@EU_Commission says each of the four pillars is an infringement of EU law & the temple overall is a big single overarching infringement. So, there are two strands to its case: the 4 pillars & the temple itself. /2
Read 9 tweets
Lewis Crofts Profile picture
30 Sep
Break for lunch in #GoogleHearing at ECJ. Here's what happened this morning:

- Google argued that EC introduced new elements into its investigation (an AEC test) & because it did this in a letter instead of a charge-sheet, Google couldn't have a private hearing on it /1
- if G had had a hearing, it could have better defended itself against accusations of dodgy revenue-sharing agreements w/ phonemakers
- so, the procedural failure should mean court annuls this part of decision

EC aint buying this:
- says Google opted against hearing after SO /2
- the Letters of Facts just "refined" the "provisional" AEC test set out in SO, in light of Google's own defense
- and AEC test is only "one element" of the revenue-share case.

Interesting interaction with Judge Marcoulli who asked about relevance of UPS ruling (C-265/17 P) /3
Read 7 tweets
Lewis Crofts Profile picture
30 Sep
Day4 of #GoogleHearing is upon us: they'll discuss procedural irregularities & the mega 4.34bn fine.

On procedure:
- Google says EC should have sent it formal charges (and not a so-called Letter of Facts), since this would have triggered a right to a closed-doors hearing. /1
- Not doing so deprived it of the right to be heard
- Google also says EC didn't record minutes of interviews with other companies sufficiently. Again, this means its defence rights were harmed.

- EC says: the LoF had no new charges, so it didn't need to be an SO. /2
- And also Google gave up right to a hearing when it didn't have one after getting the first SO.
- as to interviews: EC says it doesn't have to record every last utterance of an informal chat as an "interview."

On the fine:
- Google says it's the biggest ever in history /3
Read 5 tweets
Lewis Crofts Profile picture
29 Sep
Day 3 of #GoogleHearing has wrapped up.

P.M was devoted to the anti-fragmentation rules which Google says ensured "compatibility" on #Android platform & developers loved it.

EC said: nope, they stopped companies like Amazon developing new devices/platforms (such as Fire) /1
It was a colourful afternoon, including some swearing, some niggle over naming executives & the judge drawn a "cartoon" of "Androidville."

Google says "forked" versions of Android don't offer competition to Google's products. EC says: you're trying to stop rivals emerging. /2
Google says: we are steward of entire Android ecosystem & so we need compatibility rules that go broadly.

EC says: your executives knew full well they were blocking rival products and platforms emerging.

More on this tomorrow a.m. & then on to discussion of procedure/fine /3
Read 4 tweets

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