Google’s Distribution Agreements: The Agreements They Had With Apple and Android

United States of America v. Google LLC., Court Filing, retrieved on April 30, 2024, is part of HackerNoon’s Legal PDF Series. You can jump to any part of this filing here. This part is 11 of 37. F. Google’s Distribution Agreements 208. Google has paid to distribute search for nearly 20 years. For at least the past 12 years, Google’s agreements have fallen into three buckets: (1) the ISA with Apple, (2) the RSAs and MADAs with Android OEMs and carriers, and (3) contracts with third-party browsers. 1. Information Services Agreement (Apple Devices) 209. Apple is a distributor of Google search, not an end user of Google’s services. JX0033 at -794 (§ 1(a)) (Apple ISA (2016 amend.)) (defining “End User” as “a user of the Web Browser Software, Spotlight, or Siri”); Tr. 4930:4–10, 4932:3–5, 4977:10–12 (Braddi (Google)) (acknowledging the “search distribution relationship” and “search distribution agreement” between Google and Apple); id. 4945:3–4946:5 (agreeing that Google’s search distribution relationship with Apple is built on negotiation). 210. Google earns advertising revenue from searches conducted on Apple devices. Tr. 2452:12–15 (Cue (Apple)). Under the Information Services Agreement (ISA), Google splits this revenue with Apple in exchange for being the exclusive default search engine pre-set on Apple’s Safari browser. Tr. 2452:16–23 (Cue (Apple)) (Google splits ad revenue with Apple); Tr. 7667:16–19 (Pichai (Google)) (Google pays Apple revenue share to be set as the default search engine on Safari); Tr. 4930:8–19 (Braddi (Google)); UPX6024 at -437 (written 30(b)(6) response: “Google’s current [ISA] with Apple provides for Google to be the default search provider on Apple’s Safari browser, allowing Google Search to be more accessible to Apple users and growing usage of Google Search by Apple users. This is especially important to Google given Apple’s sizeable and valuable user base, for which Apple controls distribution.”). a) ISA: The Early Years 211. In 2002, Google and Apple entered into the ISA’s first version. The 2002 ISA granted Apple a voluntary license to preinstall Google Search in Safari but did not require Apple to do so and did not provide for payment in either direction. Des. Tr. 25:18–26:7 (Apple-EC 30(b)(6) Dep.) (agreeing that the 2002 agreement had no revenue share term). The 2002 ISA provided: “Google hereby grants to Apple a worldwide, non-transferable, non-exclusive right to allow End Users of [Safari] to send web search queries from a search box in [Safari] to www.google.com, and to receive results pages from Google that will include web search results and, when applicable, advertising results.” JX0001 at -678 (§ 2.1) (Apple 2002 ISA). 212. In 2005, Google co-founder Sergey Brin offered Apple revenue share for the first time. UPX0855 at -239 (“[W]e should consider sending a rev share or helping [A]pple out in other ways.”); UPX0992 at -016 (email to Apple board member: “[Google] could also send some revenue [Apple’s] way. . . . ”); Des. Tr. 26:8–27: 21 (Apple-EC 30(b)(6) Dep.) (explaining that, for Apple, it “[n]ever crossed our mind” to ask Google for revenue share until “Google came to us and suggested it” because Google was “now making a lot of money on advertising” and told Apple “[w]e think you deserve some of that”) 213. Following Mr. Brin’s revenue-share proposal, Google and Apple amended the ISA in 2005, establishing that Google would pay Apple 50% of Google’s net advertising revenue for queries conducted on Apple devices in exchange for a requirement that Apple make Google the pre-set default search engine in Safari. JX0002 at -818–19 (§§ 2, 3) (Apple ISA (2005 amend.)). 214. When Apple launched the iPhone in 2007, the ISA was expanded to pre-set Google as the default search engine for the mobile Safari browser on Apple’s iPhones. JX0004 at -647 (§ 1) (Apple ISA (2007 amend.)) (revising “Software” definition to include Safari for iPhones). The 2007 ISA also made Google the pre-set default search engine for a new version of Safari built for Windows computers. JX0004 at -647 (§ 1) (Apple ISA (2007 amend.)) (revising “Software” definition to include Safari for computers running on Microsoft Windows operating system). 215. Between 2008 and 2010, Google and Apple extended the ISA four times with only minor modifications. JX0005 at -813 (§ 1) (Apple ISA (2008 amend.)) (extending term for Safari for Windows); JX0006 at -529 (§ 1) (Apple ISA (Jan. 14, 2009 amend.)) (extending term for Safari for Mac and Safari for Windows); JX0009 at -527–28 (§§ 1, 2) (Apple ISA (Aug. 1, 2009 amend.)) (extending term for all form factors and modifying revenue share rate); JX0012 at -688–89 (extending term for all form factors and modifying revenue share rate, among other things). b) 2014 Joint Cooperation Agreement 216. In 2014, Google and Apple amended the ISA through a Joint Cooperation Agreement (JCA), which extended the ISA for a new, ten-year term. JX0024 (Apple JCA (2014)) at -822. 217. The JCA was a worldwide agreement with carveouts for China, South Korea, and Russia. JX0024 (Apple JCA (2014)) at -822 (§ 1, ¶ 3) ((Apple JCA (2014)). In those three countries, Apple had the option to select a default search engine for Safari other than Google. Id. The JCA also required Google to consider, in good faith, additional carveouts for countries where Google’s GSE market share declined to [redacted]% or less. JX0024 at -822 (§ 1, ¶ 4) ((Apple Joint Cooperation Agreement (2014)). Market share was calculated based on Google’s usage [redacted]. JX0024 at -822 (§ 1, ¶ 4). 218. During the parties’ negotiations, Apple initially requested that its right to set another search engine as default be automatically triggered when Google’s share declined by [redacted]% in a given country, but Google rejected this request and agreed only to consider additional country carveouts in good faith. UPX0669 at -845 (listing Apple’s proposal that “[a]dditional single country options if Google search shares declines by [redacted]% or more within that country”); UPX0751 at -904 (“We cannot agree to a carveout triggered by [redacted]% drop in search share, or any other market share based trigger. If Google search becomes severely compromised in a specific country, we can agree to hold good faith discussions about whether the default search requirement needs to be adjusted.”). c) Current ISA 219. In 2016, Google and Apple agreed to substantially rewrite the ISA, establishing most of the terms that remain in place today. JX0033 (Apple ISA (2016 amend.)). Although Google and Apple amended the ISA again in 2021, the 2021 amendment “was just an extension of the dates,” and the terms of the 2016 amendment remain operative. Tr. 2453:12–2454:5 (Cue (Apple)); JX0097 at -357 (Apple ISA (2021 exten.)) (“The provisions of this Ninth Amendment are effective as of the Execution Date, and the remaining provisions of the ISA that are unchanged by this Ninth Amendment shall remain in full force and effect”). 220. In the United States, the current ISA is effective until at least September 30, 2026. JX0097 at -357 (§ 1) (Apple ISA (2021 exten.)). The agreement provides that Apple may unilaterally extend the agreement for two years (until September 30, 2028), and that Google and Apple may mutually agree to extend the agreement for another three years beyond that (until September 30, 2031). JX0097 at -357 (§ 1) (Apple ISA (2021 exten.)); Tr. 2501:12–2502:2 (Cue (Apple)) (describing extension rights). 221. Apple currently has no unilateral right to terminate its agreement with Google. The 2016 amendment expressly removed this right, which had existed in each prior version. Compare JX0033 at -800 (§ 7) (Apple ISA (2016 amend.)) (“The parties expressly amend the existing ISA Agreement to remove the right of either party to terminate at will"), with, e.g., JX0024 at -822 (Apple JCA (2014)) (granting either party the right to termination at will). 222. At Google's request, the current ISA includes a “Regulatory and Government Actions" clause, which requires Apple and Google to "cooperate to support and defend the ISA Agreement[.]" JX0033 at -801 (§ 9) (Apple ISA (2016 amend.)) (“Apple and Google will cooperate to support and defend the ISA Agreement, work in good faith to modify it if necessary to resolve regulatory concerns, and not intentionally delay or prevent implementation of the ISA Agreement"); Tr. 2467:6–17 (Cue (Apple)) (this request "came from Google"). That clause further recognizes that the parties may need to "renegotiate the Ad Revenue Share in an effort to preserve the overall intended economic benefit of the deal" as a result of regulatory action or a court order. JX0033 at -801 (§ 9) (Apple ISA (2016 amend.)). i. ISA’s Default Requirement 223. Under the current ISA, on all Apple devices, the company must set Google as Safari's default search engine. JX0033 at -793 (§ 1(a)) (Apple ISA (2016 amend.)) (“Apple will pre-set and use [Google] as the Default search service for Search Queries in Apple's web browser software (e.g., Safari or successor versions) designed for use on (i) one or more of the following Apple operating systems: iOS, watchOS, tvOS, macOS or an other operating system made generally available by Apple during the Term, or (ii) the Microsoft Windows operating system”); Tr. 2452:9–11 (Cue (Apple)) (the ISA applies to “[a]ll Apple devices with a browser or browser-like technology”). This includes Safari’s private browsing mode, which is a browsing mode for which Apple does not accumulate browsing history. Tr. 2172:19–2173:5 (Giannandrea) (Apple)) (defining Safari’s private browsing mode); id. 2174:11–2175:23 (the pre-set default search engine for Safari’s private browsing mode “for every Apple device in the United States is set to Google”). 224. If Apple pre-sets another GSE as the default on a single device, it loses all its revenue share with Google. UPX0588 at -578 (summarizing Apple’s obligation to pre-set Google as default “for all search queries in Safari” as necessary “[i]n order to receive [Apple’s] revenue share”). The geographic coverage established by the JCA, supra ¶ 217, remains in place, which means Apple must pre-set Google as the only default search engine in all countries except for China, South Korea, and Russia. JX0033 at -793 (Apple ISA (2016 amend.)) (preserving preexisting terms of the ISA, including geographic scope of JCA); Tr. 2477:8–10 (Cue (Apple)) (noting the ISA is a “global agreement”); id. 2478:2–8 (Apple cannot set Google as the search provider internationally and a different search provider in the United States). ii. ISA’s Revenue Share Provisions 225. Under the current ISA, Google pays Apple 40% of the net advertising revenue that Google earns from queries conducted in Safari. JX0033 at -797 (§ 4) (Apple ISA (2016 amend.)); Tr. 2465:24–2466:10 (Cue (Apple)) (agreeing that Google has paid Apple 40% of net advertising revenue (referring to Row B of Rosetta stone at UPX4001) since 2016). [redacted] JX0033 at -797 (§ 4) (Apple ISA (2016 amend.)); Tr. 2455:23–2456:5, 2493:14–17 (Cue (Apple)) (Apple does not preload either the Google Search App or Chrome.). 226. After accounting for cost deductions permitted under the ISA, the 40% net revenue share translates to 36% of the gross revenue that Google earns from queries conducted in Safari [redacted]. JX0033 at -797–98 (§ 4) (Apple ISA (2016 amend.)) (defining “Net Ad Revenue” as allowing for operating deductions from the revenue earned from Safari queries, [redacted]); UPX0587 at -576 (Apple diagram depicting how net revenue share is calculated); Tr. 9783:21–9785:15 (Murphy (Def. Expert)) (acknowledging revenue share rate of 36%). iii. ISA’s Restrictions On Apple’s Search And Search Ad Activities 227. Under the current ISA, Apple’s implementation of Google as default in Safari must remain “substantially similar” to Apple’s implementation in 2016. The ISA refers to this requirement as the “Permissible Software Default Use.” JX0033 at -793 (§ 1(a)) (Apple ISA (2016 amend.)) (“During the Term, Apple’s use of [Google] as Default in [Safari] will remain substantially similar to its use (including, without limitation, vis-à-vis other providers of internet services) as of the Execution Date of this Agreement (such use, the ‘Permissible Software Default Use’)”); UPX0588 at -578 (Apple summary referring to this restriction as the “Safari Search Limitation”). 228. In addition to the general application of the “Permissible Software Default Use,” the ISA also contains clauses that expressly apply this restriction to aspects of Apple’s product design. For example, Apple’s ability to “alter, modify and innovate” Safari is “[s]ubject to the Permissible Software Default Use." JX0033 at -793 (§ 1(a) (second paragraph)) (Apple ISA (2016 amend.)). Google included this restriction in the 2016 amendment over Apple's objection. UPX0595 at -938 (Sept. 17, 2016 email from Cue to Pichai) (advocating for draft language that would have granted Apple the right to "alter, modify and innovate" Safari without limitation by the "Permissible Software Default Use" because "we need the ability to innovate however we see fit"); UPX0611 at -465 (Sept. 19, 2016 Pichai response) (maintaining Google's position that this draft language be "subject to the Permissible Software Default Use" restriction to "preserve the value of the deal for Google"). 229. The ISA also contains clauses applying the Permissible Software Default Use restriction to Apple's ability (1) to carve out user requests from the queries that Apple sends to Google, (2) to use Siri to respond to queries in Safari, and (3) to “pre-populate” queries as they are entered by users in Safari. JX0033 at -793 (§ 1(a) (fourth paragraph)), -795 (§ 1(c) (third paragraph)), -797 (§ 4 (fourth paragraph)) (Apple ISA (2016 amend.)). 230. At Google's request, the ISA also contains a term requiring that, if Apple wishes to display advertisements in Siri or Spotlight, Apple must provide Google the right of first refusal to supply the advertisements under the existing terms. JX0033 at -796 (§ 2) (Apple ISA (2016 amend.)) (“Following the initial implementation of the Spotlight Services or Siri Services, if Apple includes ads or paid listings in Siri or Spotlight (or successor versions), Apple will offer Google the opportunity to supply such ads or paid listings under the financial terms set forth in Section 4 of this Agreement and on equivalent implementation terms."); Tr. 2498:1–4 (Cue (Apple)) (agreeing that Google would have "the right of first refusal to offer the ads themselves"); id. 2497:11–25 (this was "something that Google wanted to have”). 2. Google Search Distribution Agreements With U.S. Carriers And Android OEMs 231. Carriers and Android OEMs are distributors, not end users, of Google’s services. UPX6059 at -032 (Alphabet 2021 Form 10-K stating, “[O]ur distribution partners include browser providers, mobile carriers, original equipment manufacturers, and software developers.”); JX0091 at -745 (§ 1.29) (AT&T RSA (2021)) (defining “end user” as “any human end user of a Device or Qualified Device”); JX0049 at -866 (§ 1.17) (Motorola MADA (2018)) (defining “end user” as “a human end user of a Device”); JX0037 at -053 (§ 1.13) (Samsung MADA (2017)) (defining “end user” as “an end user of a Device”) UPX0719 at -712–13 (distinguishing between needs of users, advertisers/agencies, and partners (i.e., “search partners, content partners, mobile partners, book search partners, ISPs, etc.”)). 232. Three OEMs (Samsung, Motorola, and, until recently, LG) have manufactured most Android mobile devices sold in the United States. Tr. 1516:4–21 (Yoo (Google)) (discussing UPX0141); Tr. 775:2–5 (Kolotouros (Google)) (Samsung and Motorola manufacture the majority of the Android phones for sale in the United States.). Several other OEMs manufacture Android devices sold in the United States, including Sony Corp. (Sony)[5] and Google, which sells Google-branded Pixel devices. UPX0488 at -032 (identifying Pixel phones as one of Google’s hardware businesses); UPX0317 at -159 (identifying Pixel as part of OEM shipments in the USA). 233. Carriers sell the majority of Android devices purchased in the United States (80– 90%). Tr. 1514:10–19 (Yoo (Google)). Carriers purchase cellphones from OEMs like Apple and Samsung and sell the devices to consumers through the carriers’ stores and online. Id. 1514:10– 19 (discussing UPX0141); Tr. 9314:1–16 (McCallister (Google)). Verizon, AT&T, and T-Mobile are the three largest carriers in the United States. Tr. 9313:24–25 (McCallister (Google)). Sprint, previously the fourth-largest carrier, merged with T-Mobile in 2020. Des. Tr. 186:16–20 (Giard (T-Mobile) Dep.); Tr. 1515:15–25 (Yoo (Google)). 234. Google enters into two types of distribution agreements with Android partners: (1) MADAs, and (2) RSAs. UPX0141 (describing the major search distribution terms of the MADAs and RSAs).[6] a) MADAs 235. Google and Android OEMs enter into distribution agreements, called MADAs. MADAs allow OEMs to preinstall and distribute Google applications and software, also known as Google Mobile Services (GMS), on Android devices. E.g., JX0049 at -867–68 (§ 2.1) (Motorola MADA (2018)) (licensing Motorola to distribute Google applications); JX0037 at -055 (§ 2.1) (Samsung MADA (2017)) (licensing Samsung to distribute Google applications); Tr. 775:6–17 (Kolotouros (Google)) (MADA is a license to distribute Google Mobile Services on Android compatible devices); UPX6027 at -561 (written 30(b)(6) response: GMS currently includes “Google Search, Google Play Store, Google Chrome, YouTube, Google Maps, Gmail, Google Photos, YouTube Music, Google Duo, Google Drive, and Google Play Movies and TV”). 236. Google’s guiding principle for determining which apps to include in the MADA bundle is whether or not the app will generate revenue for Google. Tr. 9572:1–16 (Rosenberg (Google)); UPX0296-A at -500. 237. For more than a decade, Google has had MADAs with all the major OEMs selling Android devices in the United States: Samsung, Motorola, and LG (until LG exited the market).[7] i. Google Play Store 238. Google’s Play Store is the most popular and largest app store for Android mobile devices. Des. Tr. 91:8–15 (Baxter (Samsung) Dep.) (Play Store is “clearly the largest” app store in the United States for Android devices based on number of apps.); Des. Tr. 358:15–359:17 (Ezell (AT&T) Dep.) (primary app store for Android devices is Google Play); Des. Tr. 141:13– 16 (Christensen (Motorola) Dep.) (not aware of any Motorola devices in the United States with an app store besides Google Play). The Google Play Store and Google Play Services (GPS) (also called GMS core) are part of GMS. Tr. 786:13–17 (Kolotouros (Google)) (“The MADA is required to license both the GMS applications and also GMS core, otherwise known as Google Play Services.”). 239. Google’s Play Store is a key revenue source for Google. Tr. 9545:1–3 (Rosenberg (Google)); id. 9553:17–19 (the more users on Android devices, the more money Google can make from the Play Store). For example, Google projected that it would earn $[redacted] billion in revenue from Google Play Store on Samsung devices during the term of the 2020 Samsung RSA. Tr. 9550:12–9551:1 (Rosenberg (Google)). Infra ¶ 300 (Samsung’s 2020 RSA has a four-year term) 240. Google Play Store is a must-have for Android devices; it is not commercially feasible for an OEM to ship Android devices without Google Play Store preinstalled. Tr. 6:13–21 (Sept. 19, 2023 sealed PM session) (Yoo (Google)) (discussing UPX0312, Yoo agreed that there was a near-zero probability that Samsung would not want the Play Store because it is necessary for Samsung to offer users a variety of apps on its phones); Tr. 3517:6–25 (Nadella (Microsoft)) (an Android phone without the Play Store is a “brick”; everyone else has carrots to win deals, but the Play Store gives Google a “big stick”); Tr. 3125:10–22 (Tinter (Microsoft)) (Ultimately for Duo to be successful, Microsoft needed the Play Store license from Google.); Tr. 1024:23– 1025:6 (Higgins (Verizon)) (The Play Store comes preloaded on Android devices that Verizon sells in the United States, and he is unaware of Verizon selling an Android device in the United States without the Play Store.); Des. Tr. 111:15–21 (Giard (T-Mobile) Dep.) (The Play Store is very important to the success of Android phones that T-Mobile distributes; it is the primary way that users access apps they want on their devices.); Des. Tr. 358:15–359:17 (Ezell (AT&T) Dep.) (It is important that there is an app store on an Android device, and the primary app store for Android devices is Google Play.); UPX0312 at -154) (“OEMs want the Play store on their phone, and in return we are able to get other apps like Google search . . . on the phone as a result.”). 241. Indeed, every Android phone sold in the United States has the Google Play Store preinstalled. Tr. 12:8–10 (Sept. 19, 2023 sealed PM session) (Yoo (Google)) (not aware of any Android smartphones sold in the United States without the Play Store); Des. Tr. 92:24–93:2 (Baxter (Samsung) Dep.) (unaware of any Samsung smartphones in the United States sold without the Play Store preinstalled). 242. Google does not view the Samsung Galaxy Store as a threat to the Play Store. UPX1011 at -290 (Galaxy Store has “0 notable exclusive titles in 2019,” “[o]nly 2 out of Play top 50 free games continue to be present on Galaxy Store,” and “[w]e believe that the cannibalization of Play store revenue due to Galaxy store is none to minimal.”); UPX0312 at -154 ( “I think there is a near-zero probability of Samsung not wanting the Play store on their phone.”). Rival app stores are unlikely to succeed on Android devices because the Google Play Store is protected from competition by network effects. UPX2106 at -590 (“Play benefits from network effects. Users come to Play because we have by far the most compelling catalog of apps / games[.] Developers come to Play because that’s where the users are.”); UPX0303 at -120 (2014 Samsung submission to the European Commission stating, “[g]iven the nature of the mobile app ecosystem, Google’s first mover advantage continues to snowball, since Google Play will attract more app developers and end users as its popularity continues to grow.”); UPX2106 at -587 (Even with discounts, the “switching hurdle [is] too high for most users” to switch from the Play Store to the Amazon app store.). 243. GPS/GMS Core are a set of Google-proprietary application programming interfaces (APIs) that support Android apps’ functionality. Tr. 784:7–785:5 (Kolotouros (Google)) (Google Play Services are available to developers whose apps are in the Play Store.); UPX0125 at -066 (“Google Play Services / GMS Core is an important element of Play”; GPS/GMS Core APIs are a “set of Google APIs that help support functionality of all Android applications”). In 2016, “826 out of the top 1000 Android apps use[d] 1 or more GMS Core APIs (Facebook, WhatsApp, Twitter, and many other apps).” UPX0125 at -066. 244. The only way for an OEM to license the Google Play Store and GPS/GMS Core is by signing a MADA. Tr. 1529:19–1530:2 (Yoo (Google)) (To put the Google Play Store on its devices, an OEM must sign a MADA.); Des. Tr. 144:9–15 (Christensen (Motorola) Dep.) (agreeing that one reason Motorola agrees to the MADA is to obtain a license for Google’s APIs, as well as Google applications). ii. MADA Requirements 245. If an OEM wants to preinstall any one Google app on an Android device, including the Google Play Store, the OEM must preinstall a suite of 11 mandatory Google apps, including the Google Search App and Chrome. JX0037 at -055 (§ 2.1) (Samsung MADA (2017)); JX0049 at -868 (§ 2.1) (Motorola MADA (2018)); Tr. 778:16–19 (Kolotouros (Google)) (for an Android device to be a GMS device, all 11 Google apps listed in UPX0129 at -905 must be preinstalled); UPX0129 at -905 (listing 11 GMS apps that must be preinstalled under the MADA). 246. Six of these mandatory apps must be preinstalled so that they are undeletable by the user: Google Search, Chrome, Gmail, Maps, YouTube, and Google Play Store. Tr. 946:10– 12 (Kolotouros (Google)); UPX6027 at -563 (written 30(b)(6) response: “Samsung’s, LG’s, and Motorola’s current MADAs provide for preinstallation of six ‘Core’ applications, as well as GMS Core Services, on the system partition of the hard drive of an Android device that is inaccessible to the user: Google Search, Chrome, Gmail, Maps, YouTube, and Google Play.”). These six apps are referred to as the Core Apps. UPX5511 at -984 (§ 1.1) (Samsung MADA (2020 amend.)); Tr. 946:13–23 (Kolotouros (Google)) (describing the apps as “core utilities”). 247. In addition to preinstalling the 11 mandatory GMS apps, the MADA also contains placement requirements. The MADA requires the OEM (1) to place the Google Search Widget and the Google Play Store on the default home screen and (2) to place the Google Search App and Chrome, at a minimum, in a folder labeled “Google” on the default home screen. UPX0141 at -244; UPX5511 at -987 (§ 2.8) (Samsung MADA (2020 amend.)); JX0049 at -871–72 (§ 4.4) (Motorola MADA (2018)); Tr. 793:21–23 (Kolotouros (Google)) (all MADAs require the Google Search Widget to be placed on the default home screen); id. 795:5–7 (all MADAs require a Google-labeled folder or icon to be placed on the default home screen). 247. In addition to preinstalling the 11 mandatory GMS apps, the MADA also contains placement requirements. The MADA requires the OEM (1) to place the Google Search Widget and the Google Play Store on the default home screen and (2) to place the Google Search App and Chrome, at a minimum, in a folder labeled “Google” on the default home screen. UPX0141 at -244; UPX5511 at -987 (§ 2.8) (Samsung MADA (2020 amend.)); JX0049 at -871–72 (§ 4.4) (Motorola MADA (2018)); Tr. 793:21–23 (Kolotouros (Google)) (all MADAs require the Google Search Widget to be placed on the default home screen); id. 795:5–7 (all MADAs require a Google-labeled folder or icon to be placed on the default home screen). 249. Finally, the MADA prohibits OEMs from directing, instructing, or encouraging consumers to change any of a device’s out-of-the-box settings. UPX5511 at -987 (§ 2.9) (Samsung MADA (2020 amend.)) (requiring that Samsung “not include any processes, instructions, promotions, or other means that directs, instructs or encourages the End User to change the Device from being in compliance with” the MADA in the initial device setup); JX0099 at -998 (§ 2.9) (Motorola MADA (2020 amend.)) (same); Tr. 799:25–801:22 (Kolotouros (Google)) (“This language does not allow an OEM to essentially encourage . . . a user to change the settings of the defaults or the placements as has been configured per the MADA” and there is language that “would prohibit the OEM from instructing a user how to change the . . . out-of-box configuration of a device.”). 250. MADAs generally have initial two-year terms. JX0025 at -867 (Samsung MADA (2014)) (two years); JX0037 at -052 (Samsung MADA (2017)) (two years); JX0023 at -349 (Motorola MADA (2014)) (two years); JX0049 at -863 (Motorola MADA (2018)) (two years); UPX5352 at -939 (LG MADA (2017)) (two years). 251. In the past, some MADAs contained a requirement that made Google the default search engine for search access points on the device. E.g., Tr. 820:9–13 (Kolotouros (Google)) (“[T]here was a term in the MADA that secured default search on the access points . . . .”); JX0013 at -121 (§ 3.4) (Samsung MADA (2011)) (“Google Phone-top Search must be set as the default search provider for all search access points on the Device.”). The search default requirement was eventually removed from the MADA. Tr. 822:21–25 (Kolotouros (Google)) (The search default requirement was moved from the MADAs to the RSAs after September 2014.); UPX0616 at -540 (2014 email stating that Mr. Pichai supported moving the MADA’s search default requirements to the RSAs). 252. Although carriers do not sign MADAs, the Android devices that carriers sell to U.S. consumers are subject to the MADAs of the OEM that manufactured those devices. Tr. 802:19–803:8 (Kolotouros (Google)) (If an OEM builds an Android mobile device for a carrier, that device must comply with the relevant MADA terms.); Tr. 1516:24–1517:10 (Yoo (Google)) (The Android devices that carriers sell are subject to the MADAs of the OEM that manufactures those devices.). b) RSAs 253. Google enters into Search Ad RSAs with Android OEMs and U.S. carriers. UPX6024 at -428 (written 30(b)(6) response: “Since 2005, Google has negotiated and entered into hundreds of revenue share agreements (including amendments thereto) with dozens of third parties.”); e.g., JX0091 (AT&T RSA (2021)); JX0095 (T-Mobile RSA (2021)); JX0093 (Verizon RSA (2021)); JX0071 (Samsung RSA (2020)); JX0062 (Motorola RSA (2020)). 254. For more than a decade, Google has had RSAs with all major U.S. carriers and OEMs that sell Android mobile devices in the United States. Tr. 1514:10–19, 1516:17–23 (Yoo (Google)).[8] 255. Generally, the initial terms of carrier and OEM RSAs are around two years, but some have had terms as long as four years. The ultimate duration of each RSA depends on ad hoc amendments that vary in length. E.g., JX0015 at -980 (AT&T RSA (2011)) (2 years); JX0091 at -741 (AT&T RSA (2021)) (3 years); JX0093 at -487 (Verizon RSA (2021)) (2 years); JX0095 at -687 (T-Mobile RSA (2021)) (3 years); JX0041 at -966 (Samsung RSA (2017)) (2 years); JX0071 at -392 (Samsung RSA (2020)) (4 years); JX0061 at -099 (§ 2) (AT&T RSA (2018 amend.)) (extending the RSA by 4 months); UPX5457 at -348 (§ 2) (Samsung RSA (2011 amend.)) (extending the RSA by 2 years, 2 months). 256. Through the RSAs, Google pays either a share of the Search Ad revenue earned through covered search access points or, in some recent agreements, a flat bounty for every qualifying Android device the distributor sells. E.g., Des. Tr. 83:17–84:16 (Levine (Google) Dep.) (explaining what revenue share is); JX0093 at -515 (Attachment A) (Verizon RSA (2021)) (describing revenue sharing); JX0095 at -692 (§ 1.50) (T-Mobile RSA (2021)) (describing flat monthly payments); JX0091 at -765 (Attachment A) (AT&T RSA (2021)) (describing revenue sharing); JX0071 at -416–18 (Samsung RSA (2020)) (describing revenue sharing); JX0062 at -197–200 (Motorola MIA (2020)) (describing tiered monthly payments). 257. Google has paid billions of dollars in revenue share to Android RSA partners over the years. Tr. 7667:12–15 (Pichai (Google)); Tr. 5727:5–5728:11 (Whinston (Pls. Expert)) (discussing UPXD104 at 19 (showing Google’s RSA payments for U.S. queries to Android OEMs and carriers from 2014 to 2020) and noting that Google has paid its RSA partners, including Android partners, “billions and billions and billions of dollars”). 258. Google offers Android distributors payments in exchange for exclusivity and prime placement for search. UPX0573 at -244 (“We offer revenue share to carriers in exchange for exclusivity and prime placement on search, and in exchange for prime placement on Play.”); UPX0547 at -183 (2009 Mobile Deal Guidance stating that “exclusivity” is a “Standard Deal Requirement[]”); UPX6024 at -435 (written 30(b)(6) response: “Google’s current RSA agreements with Android partners AT&T, Verizon, T-Mobile-Sprint, and Samsung contain various provisions providing enhanced placement and/or promotion of Google services and applications, including Search, Assistant, and Chrome.”). 259. To maximize the payments they receive from Google, distributors must make Google the exclusive, out-of-the-box default GSE on their Android devices. Tr. 7666:11–18 (Pichai (Google)) (Android RSAs have “pre-load exclusivity” that makes Google the exclusive default out-of-the-box); Tr. 1520:22–1522:10 (Yoo (Google)) (discussing UPX0141 and stating the terms of the RSA template require (1) “Device exclusivity” and (2) Google to be set as the default search engine on all search access points); Tr. 817:23–818:13 (Kolotouros (Google)) (discussing UPX0129 and agreeing that for a partner to earn the highest revenue share under an RSA, all search access points on the device must be set to Google Search); Des. Tr. 153:15–24, 154:3–15 (Levine (Google) Dep.) (confirming “[f]or a device to qualify for rev share . . . it had to have search exclusivity outside the box”); Tr. 10090:8–24 (Murphy (Def. Expert)) (Google has “preinstallation exclusivity under most of the RSAs we’ve seen,” which means they have the exclusive on that device out of the box.); UPX0141 at -818 (listing “Device exclusivity” and “Default on all access points” as current template RSA terms as of 2018); UPX0578 at -038 (RSA provides “[f]ull exclusivity”); UPX1128 at -097 (Business Council review of RSA 2.0 coverage expansion indicating that the “rationale in support of the deal” included “Google receives search exclusivity on in-scope devices with regional exclusions; expected to increase mobile and tablet search revenue coverage from 63% to 85%”); UPX0603 at -371 (indicating that the first objective of the 2020 Samsung deal was to “[s]ecure platform level distribution and protections for Search & Assistant”).[9] 260. Default exclusivity is achieved through two types of RSA provisions. First, the RSAs require the distributor to set Google as the default search for all search access points on the device and, in some cases, give those search access points premium placement (e.g., Google must be the default search for search access points on all preinstalled browsers, the Google Search Widget must be placed on the default home screen). JX0093 at -498–502 (§§ 4, 5), -516– 18 (Attachments B & C) (Verizon RSA (2021)) (describing search access point requirements); JX0095 at -696, -712–13 (§ 4, Attachment A) (T-Mobile RSA (2021)) (describing search access point requirements); JX0091 at -751–53 (§ 4), -766–68 (Attachment B) (AT&T RSA (2021)) (describing search access point requirements); JX0071 at -401–03 (§§ 4, 5), -419–20 (Attachment B-1), -422–24 (Attachments C-1 & C-2) (Samsung RSA (2020)) (describing search access point requirements); JX0062 at -184–87 (§§ 4, 5) (Motorola MIA (2020)) (describing search access point requirements); UPX5392 at -120 (Attachment F) (LG MIA (2020)); Tr. 7666:25–7667:3 (Pichai (Google)) (explaining that an OEM or carrier will receive full revenue share on an Android device only if all the device’s search access points are set to Google); UPX0317 at -176 (“What we get” from RSA includes “Device exclusivity + Defaults”). 261. Second, the RSAs prohibit the distributor from preinstalling any “alternative search service” or setting any “alternative search service” as the default for any search access point on the device. E.g., JX0093 at -489, -500–01 (§§ 1.5, 5.2) (Verizon RSA (2021)) (prohibition on implementing alternative search services); JX0095 at -689, -696–97 (§§ 1.3, 4.2) (T-Mobile RSA (2021)) (prohibition on implementing alternative search services); JX0091 at -743, -752 (§§ 1.5, 4.2) (AT&T RSA (2021)) (prohibition on implementing alternative search services); JX0071 at -394, 403 (§§ 1.5, 5.2) (Samsung RSA (2020)) (prohibition on implementing alternative search services); JX0062 at -177, -185 (§§ 1.7, 4.3) (Motorola MIA (2020)) (prohibition on implementing alternative search services); UPX5401 at -016 (August 11, 2020 letter from Google to Motorola stating that the prohibition on alternative search services in MIA § 4.3 will not apply to the [lower revenue share] Foundation Tier, but will apply to the Premier Tier). 262. The RSAs generally define an “Alternative Search Service” to be any service “substantially similar to Google Search”—in other words, a general web search service. Tr. 840:11–15 (Kolotouros (Google)) (An alternative search service is “a service which is similar to Google search”; this would mean a service that returns “[g]eneral web search results when connected” to the internet.); Des. Tr. 174:23–175:11, 175:14–23, 176:1–176:5 (Ramalingam (Yahoo) Dep.) (only general web search services were prohibited by the RSA between Google and Verizon); UPX6026 at -552–53 (written 30(b)(6) response: “Although the precise definition of ‘alternative search service’ can and does vary by partner and by contract, the definition of this term typically encompasses, for example, applications, products, or services—other than Google search or Google applications—that deliver search results consisting of Internet content in response to user queries in a manner that is substantially similar to Google search.”); UPX6026 at -553 (written 30(b)(6) response: “‘[A]lternative search services’ refers to services on RSA devices that offered ‘general web search,’ meaning services that ‘search[] the web for . . . web results to general queries.’”); UPX6026 at -553 (written 30(b)(6) response: “‘[A]lternative search services’ . . . exclude search services that return results . . . confined to a particular category (and, in some cases, a small number of categories).”); UPX6030 at -621 (written 30(b)(6) response: “Examples of such services that deliver research results by searching the Internet in a manner substantially similar to Google Search include Bing and Yahoo Search”).[10] 263. Google dictates what constitutes a search access point and an “alternative search service” (i.e., what is and is not an alternative search service that is substantially similar to Google). E.g., JX0091 at -748 (§ 1.65) (AT&T RSA (2021)) (giving Google “sole discretion” to determine what qualifies as a “Search Access Point”); JX0093 at -489, -494 (§§ 1.5, 1.67) (Verizon RSA (2021)) (giving Google “reasonable discretion” to determine what qualifies as a “Alternative Search Service” or “Search Access Point”); JX0095 at -689, -694 (§§ 1.3, 1.66) (T-Mobile RSA (2021)) (giving Google “reasonable discretion” to determine what qualifies as a “Alternative Search Service” or “Search Access Point”); JX0062 at -177, -182 (§§ 1.7, 1.81) (Motorola MIA (2020)) (giving Google “sole discretion” to determine what qualifies as a “Alternative Search Service” or “Search Access Point”). This gives Google control of the coverage and breadth of its exclusive contracts. Des. Tr. 124:8–125:6 (Christensen (Motorola) Dep.). Google acknowledges that there is ambiguity in what constitutes an alternative search service and that “[t]here is no formal guidance or similar document specifying what falls within the definition.” UPX6030 at -622 (written 30(b)(6) response: Consideration of what constitutes an “alternative search service” “involves the input of a number of individuals at Google” and “[t]here is no fixed or final arbiter for this question.”). 264. Throughout the period covered by the complaint, RSAs have come in three flavors: (1) platform wide: all Android devices the distributor sells must meet the requirements for the distributor to receive any payments from Google, (2) device-by-device: the distributor can choose to configure a device to meet the RSA requirements—if the device meets the requirements the distributor can receive payments for searches on that device, regardless of whether other devices meet the RSA requirements or not, or (3) both: an RSA may have one tier with certain requirements that are platform wide and entitle the distributor to some payments and a second tier with additional requirements that the distributor can choose to meet on a device-by-device basis to earn additional payments. Compare JX0091 at -749 (§ 2.2) (AT&T RSA (2021)) (containing only a device-by-device Preferred Tier for new devices) with JX0093 at -496 (§§ 2.2, 2.3) (Verizon RSA (2021)) (containing both a platform-wide Core Tier and a device-by-device Preferred Tier for new devices) and JX0047 at -295 (§ 2.1) (T-Mobile RSA (2017)) (containing a single platform-wide tier for new device with Google apps); Tr. 823:9–824:15 (Kolotouros (Google)) (device by device means that if a particular device meets the RSA's conditions, the partner could receive revenue share for that device; a platform-wide RSA means that “all devices must be enrolled in the deal" to earn revenue share). 265. In the context of negotiating Samsung's RSA, Google referred to “search defaults on all access points" and "search exclusivity on a device-by-device basis" as "[t]raditional [RSA] commitments." UPX1108 at -811. 266. In addition to search-related requirements, more recent RSAs may also include letter-upgrade and security-update requirements (the Samsung RSA (2020) has no such requirements). E.g., JX0093 at -502 (§ 5.4) (Verizon RSA (2021)); JX0095 at -699–700 (§ 4.6) (T-Mobile RSA (2021)); JX0091 at -753 (§ 4.4) (AT&T RSA (2021)); JX0062 at -185–86 (§§ 4.4, 4.5) (Motorola MIA (2020)). 267. Generally, only one partner can earn revenue share on a particular Android mobile device: the OEM or the Carrier. UPX0294 at .010 (“Since we sign RSAs with both, we track revenue sharing through the unique Client ID set on each phone. This can only go to one partner, OEMs and carriers fight for ownership."). In the United States, the majority of RSA payments are made to carriers. Tr. 9446:16–22 (Rosenberg (Google)); UPX0294 at .010 ("In practice, it tends to go to whichever type of partner is the main smartphone distribution channel in a given market (in more developed markets, this tends to be carriers)."). 268. Google's RSAs with carriers cover Android devices that carriers sell to consumers. Tr. 940:25–942:4 (Kolotouros (Google)). Google's RSAs with OEMs cover the smaller portion of Android devices that OEMs sell directly to U.S. consumers. Id. (Android devices sold to consumers by Samsung and Motorola (as opposed to carriers) are covered by their respective RSAs). One exception to this general rule is that, even on carrier-sold devices, Samsung earns [redacted]% revenue share from default queries on Chrome, if Chrome is in the hot seat and the default browser. JX0071 at -404, -416-17, -424 (§ 7, Attachment A, Attachment C-2) (Samsung RSA (2020)). i. Google Haas RSAs With All Major U.S Carries 269. Google offers revenue share to carriers only for devices built in compliance with the MADA preinstallation and placement requirements. JX0093 at -490–91, -494 (§§ 1.12, 1.18, 1.23, 1.58) (Verizon RSA (2021)) (for a carrier to earn revenue share on an Android device it must have been manufactured by an OEM with a MADA ); JX0095 at -689-90, -693 (§§ 1.7, 1.10, 1.19, 1.55) (T-Mobile RSA (2021)) (same); JX0091 at -744-45, -747 (§§ 1.13, 1.26, 1.56) (AT&T RSA (2021)) (same); Tr. 1516:24–1517:10 (Yoo (Google)) (Although carriers do not sign MADAS, the devices carriers sell are subject to the MADAs of the OEMs that manufacture the devices.). 270. Even if carriers do not sign an RSA, the Android devices they sell are still bound by the terms of the OEM's MADA if Google apps are preinstalled. Supra ¶ 252; UPX6027 at -564 (written 30(b)(6) response: "[I]f an Android OEM chooses to preload the Google proprietary applications that Google distributes through the MADA, including on devices that OEMs build for U.S. carriers, the OEM must comply with the terms of the MADA, subject to Google granting a waiver.”). 271. The most recent set of carrier RSAs were signed in 2021. JX0091 (AT&T RSA (2021)); JX0093 (Verizon RSA (2021)); JX0095 (T-Mobile RSA (2021)). (a) The AT&T RSA Ensures Google Is The Exclusive Default Search 272. The AT&T RSA has ensured that Google is the exclusive search default on AT&T Android smartphones since 2011. JX0015 (AT&T RSA (2011)). In exchange for revenue share payments, AT&T agrees to make Google the default search on all search access points (e.g., AT&T agrees to set Google as the default search on all preinstalled browsers, including S Browser) and place the Google Search Widget on the default home screen. JX0091 at -751 (§ 4.1), -766–68 (Attachment B) (AT&T RSA (2021)); UPX1024 at -294 (“Search agreements are mechanisms to tie rev share to exclusivity.”). AT&T is prohibited from preinstalling any rival GSE or setting any rival GSE as the default on any search access point. JX0091 at -752 (§ 4.2) (AT&T RSA (2021)). 273. The current RSA, signed in 2021, has only one revenue share tier for new devices. JX0091 at -751 (§ 4.1) (AT&T RSA (2021)). AT&T may choose on a device-by-device basis to enroll devices in the RSA and earn [redacted]% revenue share on user searches conducted through enumerated search access points. JX0091 at -751 (§ 4.1), -765 (Attachment A, § 1(a)) (AT&T RSA (2021)). The 2021 RSA also entitles AT&T to [redacted]% of Search Ad revenue on search access points on old devices that continue to comply with the 2018 RSA. JX0091 at -765 (Attachment A, § 1(b)) (AT&T RSA (2021)). AT&T enrolls virtually all its Android smartphones in the RSA. Des. Tr. 193:5–14, 194:19–21, 195:3–6 (Ezell (AT&T) Dep.) (unaware of AT&T opting any Android phones out of the RSA and there are no plans to do so in the future); Des. Tr. 177:17–20, 177:23–178:2 (Levine (Google) Dep.) (unaware of any AT&T devices excluded from being RSA qualified devices circa 2018). 274. The 2021 RSA has a three-year term. JX0091 at -741 (AT&T RSA (2021)). AT&T may only terminate the RSA if Google breaches the contract. JX0091 at -758–59 (§ 10.2) (AT&T RSA (2021)). 275. Before 2021, the 2018 AT&T RSA controlled. It was also one tier and device-bydevice. JX0050 at -008 (§ 2.1) (AT&T RSA (2018)). In exchange for revenue share from Google, AT&T agreed to make Google the out-of-the-box default on all search access points and AT&T was prohibited from implementing rival GSEs on any Android device it enrolled in the RSA. JX0050 at -008 (§ 2.1), -009–10 (§ 2.4), -024–25 (Exhibit B) (AT&T RSA (2018)). (b) The Verizon RSA Ensures Google Is The Exclusive Default Search 276. Verizon’s RSA has ensured that Google is the exclusive default search engine on Verizon devices since 2011. JX0016 at -678 (§ 12) (Verizon RSA (2011 amend.)). The current Verizon RSA, signed in 2021, has two revenue-share tiers for new devices. JX0093 at -496 (§§ 2.2, 2.3) (Verizon RSA (2021)). If Verizon wants to earn any revenue share from Google on any Verizon device, all of its Android devices must meet the Core Tier requirements. JX0093 at -496 (§ 2.2) (Verizon RSA (2021)). The Core Tier requires Verizon to set Google as the default search engine in either Chrome or Samsung’s S Browser and place that browser in the hot seat on every device sold by Verizon. JX0093 at -498–99 (§§ 4.1, 4.2), -516 (Attachment B) (Verizon RSA (2021)). If Verizon enrolls a device in the Core Tier, Verizon earns [redacted]% of net Search Ad revenue on the enumerated search access points. JX0093 at -515 (Attachment A, § 1(a)) (Verizon RSA (2021)). 277. Verizon may earn additional revenue share by enrolling a device in the Preferred Tier, which requires Verizon to make Google the default search on all search access points (e.g., Verizon agrees to set Google as the default search on all preinstalled browsers), place the Google Search Widget on the default home screen, and set Chrome (not S Browser) as the default browser and place it in the hot seat. JX0093 at -496 (§ 2.3), -499–500 (§ 5.1), -517–18 (Attachment C) (Verizon RSA (2021)); Tr. 1027:15–19 (Higgins (Verizon)) (The hot seat is “generally considered to be preferred because . . . it’s on the home screen and it’s persistent across the other screens as well.”). 278. In the Preferred Tier, Verizon is prohibited from preinstalling any rival GSE or setting any rival GSE as the default on any search access point. JX0093 at -500–01 (§ 5.2) (Verizon RSA (2021)); Tr. 9327:2–19 (McCallister (Google)) (Google expects a carrier partner to whom Google is paying at the highest revenue share to work on “promotional exclusivity” and should not be “promoting a rival search engine at the same time”). If Verizon enrolls a device in the Preferred Tier, Verizon earns [redacted]% of net Search Ad revenue on the enumerated search access points. JX0093 at -515 (Attachment A, § 1(b)) (Verizon RSA (2021)). Verizon enrolls all its Android smartphones in the Preferred Tier. Tr. 1050:18–22 (Higgins (Verizon)) (“The new devices that we sold, I believe, all of them would have been at the [redacted]percent tier.”). 279. Verizon secured a limited carveout in the Preferred Tier that allowed Verizon to preinstall the Yahoo Mobile App, which has search capability, as long as Verizon owned Yahoo, placed the app on the plus one screen (not the home screen), and Verizon made sure the app “didn’t allow a punch-out into general search.” Tr. 1094:19–1095:15 (Higgins (Verizon)); JX0093 at -500 (§ 5.2) (Verizon RSA (2021)). Verizon sold Yahoo in May 2021, before executing the RSA, making the carveout ineffectual. Tr. 1072:11–13 (Higgins (Verizon)). 280. The 2021 RSA also entitles Verizon to [redacted]% of net Search Ad revenue on search access points on old devices that continue to comply with the 2014 amendment to Verizon’s 2009 RSA (2014 RSA). JX0093 at -496 (§ 2.4), -515 (Attachment A, § 1(c)) (Verizon RSA (2021)). 281. The 2021 RSA has a two-year term. JX0093 at -487 (Verizon RSA (2021)). Verizon may only terminate the RSA if Google breaches the contract. JX0093 at -508 (§ 11.2) (Verizon RSA (2021)). 282. Before 2021, Verizon’s 2014 RSA controlled. It had one revenue tier and was platform wide. JX0026 at -277 (Exhibit 8, § 2(b)), -280 (Exhibit 8, § 3(c)) (Verizon RSA (2014 amend.)); Des. Tr. 233:17–234:7, 234:11–236:10 (Levine (Google) Dep.) (Verizon’s RSA in place at the time she joined Google’s North American carrier group was a platform deal). In exchange for revenue share from Google, Verizon agreed to set Google as the default search on preinstalled browsers and place the Google Search Widget on the default home screen. JX0026 at -278–79 (Exhibit 8, § 2(l)), -280 (Exhibit 8, § 3(c)) (Verizon RSA (2014 amend.)). 283. Due to a drafting error, Verizon’s 2014 RSA did not explicitly prohibit the carrier from preinstalling rival GSEs. Tr. 9356:24–9357:12 (McCallister (Google)) ([A]fter Google realized that the exclusivity provision was struck inadvertently in the previous agreement, Google “precipitated the renegotiations of the RSA.”); Des. Tr. 233:17–234:7, 234:11–236:16, 236:20–238:1, 238:8–240:6, 241:17–242:14 (Levine (Google) Dep.) (Google discovered Verizon was not technically obligated to grant search exclusivity under the 2014 RSA due to a drafting error.); Des. Tr. 237:11–238:1, 238:8–10 (Levine (Google) Dep.) ([T]he drafting error removing search exclusivity was particularly egregious because “[m]ost of the value in the prior [Verizon RSA] agreement was coming from exclusivity.”); UPX2093 at -398 (“[I]n previous amendments . . . the exclusivity provision was removed (!!) so we are paying Verizon [redacted]% for basically nothing right now. . . . [T]he highest priority is resecuring exclusivity.”). (c) The T-Mobile RSA Ensures Google Is The Exclusive Default Search 284. T-Mobile’s RSA has ensured that Google is the exclusive default search engine on T-Mobile devices since 2009. JX0011 at -180 (§ 2.1) ((T-Mobile RSA (2009)). In exchange for revenue share payments, T-Mobile agrees to make Google the default search on all search access points (e.g., T-Mobile agrees to set Google as the default search on all preinstalled browsers, including S Browser), make Chrome the default browser and place it in the hot seat, and place the Google Search Widget on the default home screen. JX0095 at -696, -697–98 (§§ 4.1, 4.3), -712–13 (Attachment A) (T-Mobile RSA (2021)). T-Mobile is also prohibited from preinstalling any rival GSE or setting any rival GSE as the default on any search access point. JX0095 at -696–97 (§ 4.2) (T-Mobile RSA (2021)). 285. The 2021 T-Mobile RSA has only one payment tier for new devices. JX0095 at -695 (§ 2.2) (T-Mobile RSA (2021)). T-Mobile may choose on a device-by-device basis to enroll devices in the RSA, which then pays $[redacted] per device per month for those enrolled devices. JX0095 at -692 (§ 1.50), -695 (§ 2.2), -702–03 (§ 9.1) (T-Mobile RSA (2021)). The 2021 RSA also entitles T-Mobile to $[redacted] per device per month for old devices that continue to comply with the 2017 RSA. JX0095 at -692 (§ 1.50), JX0095 at -695 (§ 2.3), -702–03 (§ 9.1) (T-Mobile RSA (2021)); Des. Tr. 201:17–203:9 (Giard (T-Mobile) Dep.) (describing the structure of the 2021 T-Mobile RSA, which pays T-Mobile for each conforming Android device it sells). T-Mobile enrolls virtually all its Android smartphones in the RSA. Des. Tr. 195:1–20 (Giard (T-Mobile) Dep.) (As of January 2022, all T-Mobile devices conformed with the RSA and T-Mobile had no plans to launch any non-conforming devices.). 286. The 2021 RSA has a three-year term. JX0095 at -687 (T-Mobile RSA (2021)). T-Mobile may only terminate the RSA if Google breaches the contract. JX0095 at -704 (§ 10.2) (T-Mobile RSA (2021)). 287. Before 2021, the 2017 RSA controlled. It had one revenue-share tier and required platform-wide compliance. JX0047 at -295 (§ 2.1) (T Mobile RSA (2017)). In exchange for revenue share from Google, T-Mobile agreed to make Google the out-of-the-box default on all search access points and was prohibited from implementing rival general search services on every Android device. JX0047 at -295 (§ 2.1), -297-98 (§ 2.4), -314-15 (Exhibit B) (T-Mobile RSA (2017)); UPX0287 at -409 (summarizing the new RSA terms that Google was proposing to T-Mobile in 2017). 288. T-Mobile acquired Sprint in April 2020. UPX5545 at -480 (Sprint RSA (2020 amend.)). Sprint's 2017 RSA followed the same structure as T-Mobile's 2017 RSA. Compare JX0047 (T-Mobile RSA (2017)) with UPX5536 (Sprint RSA (2017)). Sprint has had an RSA with Google since 2008. UPX5533 (Sprint RSA (2008)). ii. Carrier Mobile Services Incentive Agreements (MSIAs) 289. In 2021, each carrier entered into mobile services incentive agreements (MSIAs) with Google; these are sometimes referred to as go-to-market agreements. JX0092 (AT&T MSIA (2021)); JX0096 (T-Mobile MSIA (2021)); JX0094 (Verizon MSIA (2021)); Tr. 9460:24— 9461:23 (Rosenberg (Google)). Under the MSIAS, carriers earn additional payments on Android devices they sell in exchange for meeting various non-search related requirements. JX0092 at -778 (AT&T MSIA (2021)); JX0096 at -721 (T-Mobile MSIA (2021)); JX0094 at -530 (Verizon MSIA (2021)). 290. The MSIAS and RSAs were not contingent on each other—a carrier did not have to sign an RSA to sign an MSIA and vice versa. Tr. 9376:21–9377:8 (McCallister (Google)). Unlike the RSAs, the MSIAs did not require the carriers to preinstall Google Search or set Google Search as the default. Id. 9377:15–9378:2. During the RSA renegotiations in 2020 and 2021, Google sometimes referred to the RSAs as “Deal 1” and the MSIAs as “Deal 2.” UPX2097 at -742. 291. Google designed the MSIAs and associated payments to support the sale of Android devices. Tr. 9378:23–9379:1 (McCallister (Google)); Tr. 9460:24–9461:23 (Rosenberg (Google)) (MSIAs redirected investment toward specific go-to-market activities aimed at helping Android compete against iOS.); UPX2097 at -742 (Deal 2 payments needed “to incentivize Android device share”). To that end, the MSIAs require the carriers and Google to collaborate on how MSIA payments will be spent to support Android. JX0092 at -784–86 (§ 5) (AT&T MSIA (2021)); JX0096 at -726–28 (§ 4) (T-Mobile MSIA (2021)); JX0094 at -536–37 (§ 5) (Verizon MSIA (2021)); Tr. 9460:24–9461:23 (Rosenberg (Google)). iii. Google Has RSAs With All Major Android OEMs 292. Google offers revenue share to Android OEMs only if they are MADA licensees. Tr. 1516:24–1517:10 (Yoo (Google)) (when OEMs sell Android devices pursuant to their RSAs, the devices are also subject to a MADA); Tr. 777:12–15 (Kolotouros (Google)) (could not identify any Android OEM with an RSA but not a MADA); id. 778:2–6 (“[T]he RSA generally does not happen unless an OEM has entered into a MADA.”); Des. Tr. 99:18–25, 101:4–8 (Christensen (Motorola) Dep.) (to earn revenue share, Motorola must have, and be incompliance with, a MADA); JX0062 at -189 (§ 7.1) (Motorola MIA (2020)); JX0071 at -406 (§ 10.1) (Samsung RSA (2020)). 293. The most recent set of Android OEM RSAs were signed in 2020. JX0071 (Samsung RSA (2020)); UPX5399 (Motorola MIA (2020)). (a) The Samsung RSA Ensures Google Is The Exclusive Default Search 294. The Samsung RSA has ensured that Google is the exclusive default search engine on Samsung devices since 2011. JX0014 at -933 (§ 12) ((Samsung RSA (2011)). In 2020, Jim Kolotouros, VP of Android Platform Partnerships, referred to the Samsung RSA as the [redacted] UPX0900 at -139. 295. Samsung’s 2020 RSA has two revenue-share tiers for new devices it sells to U.S. consumers. JX0071 at -399 (§§ 2.1, 2.2) (Samsung RSA (2020)). If Samsung wants to earn any revenue share from Google, Samsung must configure all its Android devices to meet the Core Tier requirements. JX0071 at -399 (§ 2.1) (Samsung RSA (2020)); Tr. 3237:8–3238:17 (Tinter (Microsoft)) (Samsung was not willing to enter into a partnership with Microsoft using Bing because that would affect the Google MADA and put Samsung at risk.); id. (Tinter counseled his team that any deal with Samsung would have to have Chrome on the device set to Google as a default so as not “to make Google mad.”); UPX0164 at -579 (In an email discussing a possible Microsoft deal, Samsung stated that “[r]eplacing Google Search with Bing would not only violate [Samsung’s] Google contract but it will highly impact rev share (Rev share that we get from Google on Search is huge . . . ).”). 296. The Core Tier requires, among other things, that Samsung set Google as the default search on S Browser. JX0071 at -401 (§ 4.1), -419–20 (Attachment B-1) (Samsung RSA (2020)). The restrictions on S Browser in the Core Tier are very specific. For example, Samsung’s S Browser can include rival GSEs in the address bar drop-down menu, but if a user selects a rival GSE from that menu, the action cannot change the default, i.e., that rival GSE will only be used for that single search, the default search in the address bar the next time the user runs a search will remain Google. JX0071 at -426–28 (Attachment E) (Samsung RSA (2020)); Tr. 885:19–888:2 (Kolotouros (Google)) (Samsung violated its 2017 RSA when a user selected a rival GSE from the drop-down menu and that selection changed the default search for S Browser’s address bar.). In the Core Tier, Samsung earns [redacted]% of net Search Ad revenue from S Browser default searches. JX0071 at -416 (Attachment A, § 1(a)) (Samsung RSA (2020)). 297. Samsung can earn additional revenue share by enrolling a device in the Enhanced Tier. JX0071 at -399 (§ 2.2) (Samsung RSA (2020)). Samsung may choose to make Enhanced Tier devices (i) Search Enhanced, which requires setting the Google Search Widget and GSA pursuant to the MADA and setting all search intents and all relevant preinstalled apps or services to GSA, (ii) Chrome Enhanced, which requires setting Chrome as the default browser and placing it in the hot seat, or (iii) Search and Chrome Enhanced. JX0071 at -402 (§ 5.1), -422–24 (Attachments C-1 & C-2) (Samsung RSA (2020)). 298. If Samsung enrolls a device in the Enhanced Tier, it earns [redacted]% of net Search Ad revenue on those additional search access points Samsung configures to meet the Enhanced Tier requirements. JX0071 at -402–03 (§ 5.1), -416 (Attachment A, § 1(b)) (Samsung RSA (2020)). On devices Samsung sells to carriers—i.e., devices covered by the carriers’ RSA and for which Samsung would not otherwise earn any revenue share—Samsung can earn [redacted]% of net Search Ad revenue derived from default Chrome searches, if Chrome is preinstalled as the default browser and placed on the hot seat. JX0071 at -404 (§ 7.1), -416 (Attachment A, § 1(c)) (Samsung RSA (2020)). The 2020 RSA also entitles Samsung to [redacted]% revenue share for old devices that continue to comply with the 2017 RSA. JX0071 at -404 (§ 6.1), -417 (Attachment A, § 1(d)) (Samsung RSA (2020)). 299. Samsung enrolls virtually all the Android smartphones it sells to consumers in the Search and Chrome Enhanced Tier, which requires search exclusivity. Tr. 920:24–921:11, 923:25–924:9 (Kolotouros (Google)) (stating that “most, if not all, [Samsung sold Android devices] are going to be enrolled in the Search and Chrome enhanced [tier]” and subject to search exclusivity out of the box); UPX0166 at -544 (Google pays aggressively for S Browser search defaults and putting Chrome in the hot seat.). 300. Samsung’s 2020 RSA has a four-year term. JX0071 at -392 (Samsung RSA (2020)). Samsung may only terminate the RSA if Google breaches the contract. JX0071 at -409– 10 (§ 14.2) (Samsung RSA (2020)). 301. Before 2020, the 2017 RSA controlled. It had one revenue-share tier and was device-by-device. JX0041 at -971–72 (§ 2.1) (Samsung RSA (2017)). In exchange for revenue share from Google, Samsung agreed to make Google the out-of-the-box default on all search access points and was prohibited from implementing rival GSEs on any Android device Samsung enrolled in the RSA. JX0041 at -971–72 (§ 2.1), -975–76 (§ 2.5), -987–88 (Exhibit B) (Samsung RSA (2017)). (b) Samsung Signed Two Additional Agreements With Google In 2020 302. When Samsung signed the RSA with Google in 2020, Samsung simultaneously signed two additional agreements: (1) the Mobile Services Incentive Agreement (MSIA), and (2) Go To Market Incentive Payments Pool Agreement (GTM Agreement). JX0072 (Samsung MSIA (2020)); JX0075 (Samsung GTM Agreement (2020)); UPX0786 (summarizing the three 2020 deals). The MSIA makes Samsung eligible for additional payments if Samsung meets certain requirements, including those relating to Google’s messaging app and a Google Minus One Screen experience on devices. JX0072 at -239 (Samsung MSIA (2020)). 303. For Samsung, security update and letter grade requirements are contained in the GTM agreement rather than the RSA. JX0075 at -368–69 (§ 4) (Samsung GTM Agreement) (2020)). The GTM agreement is also aimed at “promot[ing] sales of [Samsung’s] Android phones and tablets,” and makes Samsung eligible for additional payments for each Android device Samsung sells to carriers or consumers in certain territories, including the United States, that meets a variety of requirements. JX0075 at -365 (Samsung GTM Agreement (2020)). The GTM agreement requires devices sold in the United States be configured to meet the RSA’s Enhanced Tier, which requires search exclusivity. JX0075 at -368 (§ 3.1 (c)) (Samsung GTM Agreement) (2020)). If the consumer buying the Android device was switching to Android from iOS, Samsung receives larger payments. JX0075 at -381 (Attachment A) (Samsung GTM Agreement (2020)). (c) The Motorola RSA Ensures Google Is The Exclusive Default Search 304. The Motorola RSA has ensured that Google is the exclusive default search engine on Motorola devices since 2005. JX0003 at -158–59 (§ 4), -160 (§ 6) (Motorola RSA (2005)). The 2020 Motorola RSA (also referred to as the Mobile Incentive Agreement or MIA) has two payment tiers for new devices Motorola sells to U.S. consumers. JX0062[11] at -183 (§ 2.1) (Motorola MIA (2020)). If Motorola wants to receive any payments from Google, the OEM must configure all its Android devices to at least meet the Foundation Tier requirements. JX0062 at -183 (§ 2.1) (Motorola MIA (2020)). Among other things, the Foundation Tier requires Motorola to set Chrome (with Google set as the default GSE) as the default browser and place it in the hot seat. JX0062 at -178 (§§ 1.21, 1.22), -184–85 (§§ 4.1, 4.3) (Motorola MIA (2020)).. In the Foundation Tier, Motorola earns at least $[redacted] per month, with additional payments if it meets certain upgrade and security metrics. JX0062 at -197–98 (Attachment A, § 1) (Motorola MIA (2020)). 305. Motorola can earn additional payments by enrolling a device in the Premier Tier, which requires Motorola to make Google the default search on all search access points (e.g., Motorola agrees to set Google as the default search on all preinstalled browsers) and place the Google Search Widget on the default home screen. JX0062 at -183 (§ 2.1), -186–87 (§ 5.1), -201 (Attachment B) (Motorola MIA (2020)). In the Premier Tier, Motorola is prohibited from preinstalling any rival GSE or setting any rival GSE as the default on any search access point. JX0062 at -177 (§ 1.7), -185 (§ 4.3), -186–87 (§ 5.1) (Motorola MIA (2020)). 306. The prohibition on implementing rival GSEs on devices was originally part of the Foundation Tier, but Google removed that obligation from the Foundation Tier in August 2020, during the Department of Justice’s investigation of Google’s exclusionary conduct and two months before the complaint was filed in this matter. UPX5401 at -016 (Google unilaterally informing Motorola that the prohibition on alternative search services in MIA § 4.3 will no longer apply in the Foundation Tier); ECF No. 1 (DOJ Complaint) (filed Oct. 20, 2020). 307. If Motorola enrolls a device in the Premier Tier, the company receives significant additional monthly payments from Google. JX0062 at -198–200 (Attachment A, § 2) (Motorola MIA (2020)). Virtually all the Android smartphones Motorola sells to consumers are enrolled in the Premier Tier, which requires search exclusivity. Tr. 911:11–912:3, 924:10–14 (Kolotouros (Google)) (More than 95% of Motorola Android devices sold to U.S. consumers meet the Premier Tier’s search exclusivity requirement). 308. The 2020 RSA has a two-year term. JX0062 at -175 (Motorola MIA (2020)). Motorola may only terminate the RSA if Google breaches the contract. JX0062 at -192 (§ 12.2) (Motorola MIA (2020)). 309. Before 2020, the 2017 Motorola RSA controlled. It had one revenue-share tier and provided compensation device-by-device. JX0039 at -799 (§ 2.1) (Motorola RSA (2017)). In exchange for revenue share from Google, in 2017 Motorola agreed to make Google the out-ofthe-box default on all search access points and was prohibited from implementing rival GSEs on any Android device Motorola sold to consumers. JX0039 at -799 (§ 2.1), -800–01 (§ 2.4), -810 (Exhibit B) (Motorola RSA (2017)). 3. Revenue Share Agreements With Third Party Browsers 310. Google also secures itself as the default search engine in the only meaningful third-party browsers by paying hundreds of millions of dollars each year. Des. Tr. 190:12–17, 190:21–191:2, 191:5–10 (Baker (Mozilla) Dep.) (Google pays “hundreds of millions of dollars a year” to Mozilla to be Firefox’s nearly worldwide default search engine.); UPX6024 at -436 (written 30(b)(6) response: “Google’s current RSA agreement with Mozilla provides for Google to be the default search provider on Mozilla’s Firefox browser.”). a) Google Has An Exclusive Default Search Agreement With Mozilla Firefox 311. Google’s contract with Mozilla—which owns Firefox, the largest third-party browser—requires Mozilla to exclusively preset Google as the default search engine for all the browser’s search access points, including all search boxes within the browser frame, the navigation bar, all search boxes displayed on a default homepage and new tab page, and rightclick search functionality. JX0031 at -615 (§ 1), -616–17 (§ 2.1(a)) (Mozilla SA (2016)) (establishing default terms applicable outside the United States); JX0048 at -775 (§ 1) (Mozilla SA (2017 amend.)) (extending the terms of JX0031 to the United States). Under Mozilla’s default search agreement, the company receives [redacted]% of Google’s gross Search Ad revenue from Firefox. JX0048 at -775–76 (§ 2.1(b)) (Mozilla SA (2017 amend.)). 312. Google’s search revenue share accounts for a substantial majority of Mozilla’s revenue—80% of Mozilla’s revenue comes from its revenue sharing agreement with Google. Des. Tr. 41:18–24 (Baker (Mozilla) Dep.). 313. Google first contracted with Mozilla in 2004 to set Google Search as the Firefox default. UPX5434 at -126–27 (§ 2.4) (Mozilla SA (2004)). Over the following decade, the agreement was amended many times, all while preserving the default requirement from the original agreement. UPX5435 (Mozilla SA (2005 amend.)); UPX5436 (Mozilla SA (2005 amend.)); UPX5437 (Mozilla SA (2006 amend.)); UPX5438 (Mozilla SA (2008 amend.)); JX0018 (Mozilla SA (2011 amend.)). 314. In 2014, Mozilla changed the default GSE in Firefox from Google to Yahoo. Des. Tr. 69:22–70:3 (Baker (Mozilla)) Dep.). Mozilla’s bet did not pay off. After becoming the Firefox default, Yahoo responded to the deal’s financial pressure by loading its page with ads and degrading the user experience. Infra ¶ 1261. Yahoo no longer represented a viable option for Mozilla, and Mozilla returned to Google. Des. Tr. 79:2–14, 271:18–272:2 (Baker (Mozilla)) Dep.). 315. Accordingly, in 2017, Google again began requiring Mozilla to set the Firefox default search engine to Google Search. JX0031 at -615 (§ 1), -616–17 (§ 2.1(a)) (Mozilla SA (2016)) (establishing default terms then-inapplicable to the United States); JX0048 at -775 (§ 1) (Mozilla SA (2017 amend.)) (extending the terms of JX0031 to the United States). In the years since, Google has amended the agreement while preserving the default requirement. JX0065 (Mozilla SA (2020 amend.)). b) Google Has Exclusive Default Distribution Agreements With Opera And Other Small Third-Party Browsers 316. Several additional software companies develop web browsers available to users in the United States. Those include Opera Limited (Opera), which develops the Opera browser; and UCWeb Inc. (UCWeb), which develops the UC browser. 317. Google has had an exclusive default search agreement with Opera since 2012, under which Opera’s browser must default to Google for all search access points (with limited exceptions). UPX5131 at -939 (§ 2) (Opera DA (2012)). Google and Opera have agreed on at least 15 amendments since the initial signing (usually well before the termination of the agreement), with each amendment containing substantially the same requirement that Google serve as the default search service.[12] Google entered its most recent extension of the default search agreement with Opera in December 2021. UPX5146 (Opera DA (2021 amend.)). The agreement has a [redacted]. UPX5146 at -372 (§ 9.1) (Opera DA (2021 amend.)). Opera’s current revenue share rate is [redacted]. UPX5146 at -386–91 (§§ 6–7) (Opera DA (2021 amend.)). 318. Google has had a similarly exclusive contract with UCWeb regarding its browser, UC Browser, since as early as April 1, 2017, and continuing through today. UPX5210 at -849–50 (§ 2.1) (UCWeb SA (2017)); UPX5211 at -881–82 (§ 2.1) (UCWeb SA (2018)); UPX5212 at -810–11 (§ 2.1) (UCWeb SA (2020)); UPX5213 (UCWeb SA (2020 amend.)); UPX5214 (UCWeb SA (2021 amend.)). The most recent term of the agreement was [redacted]. UPX5212 at -819 (§ 11.1) (UCWeb SA (2020)). 4. Google’s Search Distribution Agreements Are Profitable 319. Google’s search distribution agreements are profitable. Tr. 4773:23–4774:25 (Whinston (Pls. Expert)); Tr. 9785:16–9787:1 (Murphy (Def. Expert)) (“there’s a lot of headroom” between what Google pays for defaults and what it would pay). 320. Google refers to the payments that it makes to its search distribution partners to secure defaults as “traffic acquisition costs” or “TAC.” Des. Tr. 24:7–10 (Porat (Google) Dep.); id. 25:20–22 (agreeing that TAC is “the investment by Google to acquire Search traffic from a partner”); Tr. 1256:24–1257:1 (Dischler (Google)) (agreeing that TAC is “the cost that Google pays its partners in order to receive query traffic”). 321. Google determines the profitability of default distribution agreements by measuring the incremental revenue Google would expect to gain from a default relative to the TAC required to secure that default. Tr. 1539:9–1540:9 (Roszak (Google)); Tr. 10049:6–10 (Murphy (Def. Expert)) (when Google offers rev share, it calculates the incremental benefit of defaults to help guide its decision-making); UPX6024 at -437–38 (written 30(b)(6) response: “Prior to entering into these revenue share agreements, Google personnel will often estimate total revenue to be generated from search access points covered by the agreement and the total payments Google expects to make under [the] agreement to the partner.”); UPX0551 at -233 (Mr. Pichai stating, “[i]ncremental Searches: This is pretty simple. When we do distribution deals, the value that is created is if we get more searches that we would otherwise have not due to the deal.”) (emphasis in original). 322. Google has never entered into a default distribution deal where the TAC exceeded the expected incremental revenue. Tr. 1540:19–22 (Roszak (Google)). Ruth Porat, Google’s Chief Financial Officer, agrees that “the value of the acquired traffic that Google gets from the TAC payments exceeds [] the cost of the payments that Google makes” and that “[o]therwise [Google] wouldn’t make the payments.” Des. Tr. 29:19–30:1 (Porat (Google) Dep.); Tr. 10087:12–10088:1 (Murphy (Def. Expert)) (identifying no reason to disagree). Continue Reading Here. About HackerNoon Legal PDF Series: We bring you the most important technical and insightful public domain court case filings. This court case retrieved on April 30, 2024, storage.courtlistener is part of the public domain. The court-created documents are works of the federal government, and under copyright law, are automatically placed in the public domain and may be shared without legal restriction. [5] UPX5188 (Sony DA (2005)); UPX5189 (Sony DA (2005 amend.)); UPX5190 (Sony DA (2006 amend.)); UPX5191 (Sony DA (2007 amend.)); UPX5192 (Sony DA (2008 amend.)); UPX5208 (Sony DA (2008)); UPX5193 (Sony DA (2008 amend.)); UPX5194 (Sony DA (2009 amend.)); UPX5167 (Sony MADA (2009)); UPX5168 (Sony MADA (Apr. 2011)); UPX5209 (Sony MADA (Oct. 2011)); UPX5169 (Sony MADA (2014)); UPX5195 (Sony RSA (2014)); UPX5170 (Sony MADA (Aug. 2016 amend.)); UPX5196 (Sony RSA (Aug. 2016 amend.)); UPX5197 (Sony RSA (Sept. 2016 amend.)); UPX5198 (Sony RSA (Dec. 2016 amend.)); UPX5171 (Sony MADA (Jan. 2017 amend.)); UPX5199 (Sony RSA (Jan. 2017 amend.)); UPX5172 (Sony MADA (Mar. 2017 amend.)); UPX5200 (Sony RSA (Mar. 2017 amend.)); UPX5201 (Sony RSA (June 2017 amend.)); UPX5173 (Sony MADA (July 2017 amend.)); UPX5174 (Sony MADA (Sept. 2017 amend.)); UPX5202 (Sony RSA (Sept. 2017 amend.)); UPX5203 (Sony MADA (2017)); UPX5176 (Sony MADA (June 2018amend.)); UPX5204 (Sony MADA (Nov. 1 2019 amend.)); UPX5177 (Sony MADA (Nov. 8 2019 amend.)); UPX5205 (Sony RSA (2019 amend.)); UPX5179 (Sony MADA (Dec. 2019 amend.)); UPX5206 (Sony MADA (2020 amend.)); UPX5207 (Sony RSA (2020)). [6] Google also enters Android Compatibility Commitments (ACCs) or Antifragmentation Agreements (AFAs) with Android OEMs, which prevent OEMs from distributing Android devices (with limited exceptions) that do not comply with a set of technical requirements. These requirements do not address search defaults. E.g., DX0870 (Samsung AFA (2019)); DX0861 (Motorola ACC (2018)). [7] JX0007 (Samsung MADA (2009)); JX0013 (Samsung MADA (2011)); JX0025 (Samsung MADA (2014)); JX0037 (Samsung MADA (2017)); UPX5514 at -297 (§ 2) (Samsung MADA (2020 amend.)) (extending JX0037 to Dec. 31, 2021); JX0008 (Motorola MADA (2009)); UPX5404 (Motorola MADA (2012)); JX0023 (Motorola MADA (2014)); JX0049 (Motorola MADA (2018)); JX0099 at -997 (§ 2.2) (Motorola MADA (2020 amend.)) (extending JX0049 to at least Jan. 1, 2021, and to Jan. 1, 2022, if neither party provided 60 days’ notice); UPX5338 (LG MADA (2009)); UPX5339 (LG MADA (2011)); UPX5340 (LG MADA (2013)); UPX5352 (LG MADA (2017)). [8] E.g., JX0015 (AT&T RSA (2011)); JX0021 (AT&T RSA (2013)); JX0050 (AT&T RSA (2018)); JX0091 (AT&T RSA (2021)); JX0010 (Verizon RSA (2009)); JX0093 (Verizon RSA (2021)); JX0011 (T-Mobile RSA (2009)); JX0022 (T-Mobile RSA (2013)); JX0047 (T-Mobile RSA (2017)); JX0095 (T-Mobile RSA (2021)); UPX5533 (Sprint RSA (2008)); UPX5553 (Sprint RSA (2013)); UPX5536 (Sprint RSA (2017)); JX0014 (Samsung RSA (2011)); JX0041 (Samsung RSA (2017)); JX0071 (Samsung RSA (2020)); JX0003 (Motorola RSA (2005)); JX0039 (Motorola RSA (2017)); JX0062 (Motorola MIA (2020)); UPX5375 (LG RSA (2007)); UPX5363 (LG RSA (2013)); UPX5364 (LG RSA (2014)); UPX5368 (LG RSA (2017)); UPX5392 (LG MIA (2020)). [9] E.g., JX0091 at -751–52 (§ 4), -765 (Attachment A), -766–68 (Attachment B) (AT&T RSA (2021)); JX0093 at -499–501 (§ 5), -515 (Attachment A), -516 (Attachment B), -517–18 (Attachment C) (Verizon RSA (2021)); JX0095 at -696–99 (§ 4), -712–13 (Attachment A) (TMobile RSA (2021)); JX0071 at -401–03 (§§ 4, 5), -416–18 (Attachment A), -419–20 (Attachment B-1), -422–424 (Attachments C-1 & C-2) (Samsung RSA (2020)); JX0062 at -186–87 (§ 5), -197–200 (Attachment A) (Motorola RSA (2020)). [10] E.g., JX0071 at -394 (§ 1.5) (Samsung RSA (2020)) (“‘Alternative Search Service’ means any web or on-device search service (including on-device search that incorporates multiple vertical search functionalities) that offers functionality that is similar to Google Search”); JX0091 at -743 (§ 1.5) (AT&T RSA (2021)) (“‘Alternative Search Service’ means any application, product, or service, other than Google Search, which, in response to queries, delivers search results consisting of (a) Internet content or (b) content from multiple applications on a Device that are owned by entities that are not Affiliates of one another, in each case of (a) and (b), in a manner that is substantially similar to Google Search.”); JX0093 at -489 (§ 1.5) (Verizon RSA (2021)) (“‘Alternative Search Service’ means (a) any web search or (b) any on-device search service that in response to queries incorporates multiple vertical search functionalities, and that, in each case of (a) and (b), offers functionality that is substantially similar to Google Search (as determined by Google in its reasonable discretion), is not owned by Google or its Affiliates, and is not among the Google Applications.”); JX0095 at -689 (§ 1.3) (T-Mobile RSA (2021)) (“‘Alternative Search Service’ means any search service that is substantially similar to Google Search (as determined by Google in its reasonable discretion)”); JX0062 at -177 (§ 1.7) (Motorola MIA (2020)) (“‘Alternative Search Service’ means any search service that is substantially similar to Google Search (as determined by Google in its sole discretion)”). [11] UPX5399 is a duplicate of JX0062. UPX5399 was produced by Motorola and JX0062 by Google. Both are in evidence. [12] UPX5132 (Opera DA (2013 amend.)); UPX5133 at -727–28 (§ 2) (Opera DA (2013 amend.)); UPX5134 (Opera DA (2013 amend.)); UPX5135 (Opera DA (2013 amend.)); UPX5136 (Opera DA (2013 amend.)); UPX5137 (Opera DA (2014 amend.)); UPX5138 (Opera DA (2014 amend.)); UPX5139 (Opera DA (2015 amend.)); UPX5140 (Opera DA (2015 amend.)); UPX5141 at -568 (§ 2) (Opera DA (2017 amend.)); UPX5142 (Opera DA (2018 amend.)); UPX5143 (Opera DA (2019 amend.)); UPX5144 (Opera DA (2020 amend.)); UPX5145 (Opera DA (2020 amend.)); UPX5146 at -384 (§ 2) (Opera DA (2021 amend.)). United States of America v. Google LLC., Court Filing, retrieved on April 30, 2024, is part of HackerNoon’s Legal PDF Series. You can jump to any part of this filing here. This part is 11 of 37. United States of America v. Google LLC., Court Filing, retrieved on April 30, 2024, is part of HackerNoon’s Legal PDF Series . You can jump to any part of this filing here . This part is 11 of 37. HackerNoon’s Legal PDF Series here F. Google’s Distribution Agreements F. Google’s Distribution Agreements 208. Google has paid to distribute search for nearly 20 years. For at least the past 12 years, Google’s agreements have fallen into three buckets: (1) the ISA with Apple, (2) the RSAs and MADAs with Android OEMs and carriers, and (3) contracts with third-party browsers. 1. Information Services Agreement (Apple Devices) 1. Information Services Agreement (Apple Devices) 209. Apple is a distributor of Google search, not an end user of Google’s services. JX0033 at -794 (§ 1(a)) (Apple ISA (2016 amend.)) (defining “End User” as “a user of the Web Browser Software, Spotlight, or Siri”); Tr. 4930:4–10, 4932:3–5, 4977:10–12 (Braddi (Google)) (acknowledging the “search distribution relationship” and “search distribution agreement” between Google and Apple); id. 4945:3–4946:5 (agreeing that Google’s search distribution relationship with Apple is built on negotiation). 210. Google earns advertising revenue from searches conducted on Apple devices. Tr. 2452:12–15 (Cue (Apple)). Under the Information Services Agreement (ISA), Google splits this revenue with Apple in exchange for being the exclusive default search engine pre-set on Apple’s Safari browser. Tr. 2452:16–23 (Cue (Apple)) (Google splits ad revenue with Apple); Tr. 7667:16–19 (Pichai (Google)) (Google pays Apple revenue share to be set as the default search engine on Safari); Tr. 4930:8–19 (Braddi (Google)); UPX6024 at -437 (written 30(b)(6) response: “Google’s current [ISA] with Apple provides for Google to be the default search provider on Apple’s Safari browser, allowing Google Search to be more accessible to Apple users and growing usage of Google Search by Apple users. This is especially important to Google given Apple’s sizeable and valuable user base, for which Apple controls distribution.”). a) ISA: The Early Years a) ISA: The Early Years 211. In 2002, Google and Apple entered into the ISA’s first version. The 2002 ISA granted Apple a voluntary license to preinstall Google Search in Safari but did not require Apple to do so and did not provide for payment in either direction. Des. Tr. 25:18–26:7 (Apple-EC 30(b)(6) Dep.) (agreeing that the 2002 agreement had no revenue share term). The 2002 ISA provided: “Google hereby grants to Apple a worldwide, non-transferable, non-exclusive right to allow End Users of [Safari] to send web search queries from a search box in [Safari] to www.google.com, and to receive results pages from Google that will include web search results and, when applicable, advertising results.” JX0001 at -678 (§ 2.1) (Apple 2002 ISA). 212. In 2005, Google co-founder Sergey Brin offered Apple revenue share for the first time. UPX0855 at -239 (“[W]e should consider sending a rev share or helping [A]pple out in other ways.”); UPX0992 at -016 (email to Apple board member: “[Google] could also send some revenue [Apple’s] way. . . . ”); Des. Tr. 26:8–27: 21 (Apple-EC 30(b)(6) Dep.) (explaining that, for Apple, it “[n]ever crossed our mind” to ask Google for revenue share until “Google came to us and suggested it” because Google was “now making a lot of money on advertising” and told Apple “[w]e think you deserve some of that”) 213. Following Mr. Brin’s revenue-share proposal, Google and Apple amended the ISA in 2005, establishing that Google would pay Apple 50% of Google’s net advertising revenue for queries conducted on Apple devices in exchange for a requirement that Apple make Google the pre-set default search engine in Safari. JX0002 at -818–19 (§§ 2, 3) (Apple ISA (2005 amend.)). 214. When Apple launched the iPhone in 2007, the ISA was expanded to pre-set Google as the default search engine for the mobile Safari browser on Apple’s iPhones. JX0004 at -647 (§ 1) (Apple ISA (2007 amend.)) (revising “Software” definition to include Safari for iPhones). The 2007 ISA also made Google the pre-set default search engine for a new version of Safari built for Windows computers. JX0004 at -647 (§ 1) (Apple ISA (2007 amend.)) (revising “Software” definition to include Safari for computers running on Microsoft Windows operating system). 215. Between 2008 and 2010, Google and Apple extended the ISA four times with only minor modifications. JX0005 at -813 (§ 1) (Apple ISA (2008 amend.)) (extending term for Safari for Windows); JX0006 at -529 (§ 1) (Apple ISA (Jan. 14, 2009 amend.)) (extending term for Safari for Mac and Safari for Windows); JX0009 at -527–28 (§§ 1, 2) (Apple ISA (Aug. 1, 2009 amend.)) (extending term for all form factors and modifying revenue share rate); JX0012 at -688–89 (extending term for all form factors and modifying revenue share rate, among other things). b) 2014 Joint Cooperation Agreement b) 2014 Joint Cooperation Agreement 216. In 2014, Google and Apple amended the ISA through a Joint Cooperation Agreement (JCA), which extended the ISA for a new, ten-year term. JX0024 (Apple JCA (2014)) at -822. 217. The JCA was a worldwide agreement with carveouts for China, South Korea, and Russia. JX0024 (Apple JCA (2014)) at -822 (§ 1, ¶ 3) ((Apple JCA (2014)). In those three countries, Apple had the option to select a default search engine for Safari other than Google. Id. The JCA also required Google to consider, in good faith, additional carveouts for countries where Google’s GSE market share declined to [redacted]% or less. JX0024 at -822 (§ 1, ¶ 4) ((Apple Joint Cooperation Agreement (2014)). Market share was calculated based on Google’s usage [redacted]. JX0024 at -822 (§ 1, ¶ 4). 218. During the parties’ negotiations, Apple initially requested that its right to set another search engine as default be automatically triggered when Google’s share declined by [redacted]% in a given country, but Google rejected this request and agreed only to consider additional country carveouts in good faith. UPX0669 at -845 (listing Apple’s proposal that “[a]dditional single country options if Google search shares declines by [redacted]% or more within that country”); UPX0751 at -904 (“We cannot agree to a carveout triggered by [redacted]% drop in search share, or any other market share based trigger. If Google search becomes severely compromised in a specific country, we can agree to hold good faith discussions about whether the default search requirement needs to be adjusted.”). c) Current ISA c) Current ISA 219. In 2016, Google and Apple agreed to substantially rewrite the ISA, establishing most of the terms that remain in place today. JX0033 (Apple ISA (2016 amend.)). Although Google and Apple amended the ISA again in 2021, the 2021 amendment “was just an extension of the dates,” and the terms of the 2016 amendment remain operative. Tr. 2453:12–2454:5 (Cue (Apple)); JX0097 at -357 (Apple ISA (2021 exten.)) (“The provisions of this Ninth Amendment are effective as of the Execution Date, and the remaining provisions of the ISA that are unchanged by this Ninth Amendment shall remain in full force and effect”). 220. In the United States, the current ISA is effective until at least September 30, 2026. JX0097 at -357 (§ 1) (Apple ISA (2021 exten.)). The agreement provides that Apple may unilaterally extend the agreement for two years (until September 30, 2028), and that Google and Apple may mutually agree to extend the agreement for another three years beyond that (until September 30, 2031). JX0097 at -357 (§ 1) (Apple ISA (2021 exten.)); Tr. 2501:12–2502:2 (Cue (Apple)) (describing extension rights). 221. Apple currently has no unilateral right to terminate its agreement with Google. The 2016 amendment expressly removed this right, which had existed in each prior version. Compare JX0033 at -800 (§ 7) (Apple ISA (2016 amend.)) (“The parties expressly amend the existing ISA Agreement to remove the right of either party to terminate at will"), with, e.g., JX0024 at -822 (Apple JCA (2014)) (granting either party the right to termination at will). 222. At Google's request, the current ISA includes a “Regulatory and Government Actions" clause, which requires Apple and Google to "cooperate to support and defend the ISA Agreement[.]" JX0033 at -801 (§ 9) (Apple ISA (2016 amend.)) (“Apple and Google will cooperate to support and defend the ISA Agreement, work in good faith to modify it if necessary to resolve regulatory concerns, and not intentionally delay or prevent implementation of the ISA Agreement"); Tr. 2467:6–17 (Cue (Apple)) (this request "came from Google"). That clause further recognizes that the parties may need to "renegotiate the Ad Revenue Share in an effort to preserve the overall intended economic benefit of the deal" as a result of regulatory action or a court order. JX0033 at -801 (§ 9) (Apple ISA (2016 amend.)). i. ISA’s Default Requirement i. ISA’s Default Requirement 223. Under the current ISA, on all Apple devices, the company must set Google as Safari's default search engine. JX0033 at -793 (§ 1(a)) (Apple ISA (2016 amend.)) (“Apple will pre-set and use [Google] as the Default search service for Search Queries in Apple's web browser software (e.g., Safari or successor versions) designed for use on (i) one or more of the following Apple operating systems: iOS, watchOS, tvOS, macOS or an other operating system made generally available by Apple during the Term, or (ii) the Microsoft Windows operating system”); Tr. 2452:9–11 (Cue (Apple)) (the ISA applies to “[a]ll Apple devices with a browser or browser-like technology”). This includes Safari’s private browsing mode, which is a browsing mode for which Apple does not accumulate browsing history. Tr. 2172:19–2173:5 (Giannandrea) (Apple)) (defining Safari’s private browsing mode); id. 2174:11–2175:23 (the pre-set default search engine for Safari’s private browsing mode “for every Apple device in the United States is set to Google”). 224. If Apple pre-sets another GSE as the default on a single device, it loses all its revenue share with Google. UPX0588 at -578 (summarizing Apple’s obligation to pre-set Google as default “for all search queries in Safari” as necessary “[i]n order to receive [Apple’s] revenue share”). The geographic coverage established by the JCA, supra ¶ 217, remains in place, which means Apple must pre-set Google as the only default search engine in all countries except for China, South Korea, and Russia. JX0033 at -793 (Apple ISA (2016 amend.)) (preserving preexisting terms of the ISA, including geographic scope of JCA); Tr. 2477:8–10 (Cue (Apple)) (noting the ISA is a “global agreement”); id. 2478:2–8 (Apple cannot set Google as the search provider internationally and a different search provider in the United States). ii. ISA’s Revenue Share Provisions ii. ISA’s Revenue Share Provisions 225. Under the current ISA, Google pays Apple 40% of the net advertising revenue that Google earns from queries conducted in Safari. JX0033 at -797 (§ 4) (Apple ISA (2016 amend.)); Tr. 2465:24–2466:10 (Cue (Apple)) (agreeing that Google has paid Apple 40% of net advertising revenue (referring to Row B of Rosetta stone at UPX4001) since 2016). [redacted] JX0033 at -797 (§ 4) (Apple ISA (2016 amend.)); Tr. 2455:23–2456:5, 2493:14–17 (Cue (Apple)) (Apple does not preload either the Google Search App or Chrome.). 226. After accounting for cost deductions permitted under the ISA, the 40% net revenue share translates to 36% of the gross revenue that Google earns from queries conducted in Safari [redacted]. JX0033 at -797–98 (§ 4) (Apple ISA (2016 amend.)) (defining “Net Ad Revenue” as allowing for operating deductions from the revenue earned from Safari queries, [redacted]); UPX0587 at -576 (Apple diagram depicting how net revenue share is calculated); Tr. 9783:21–9785:15 (Murphy (Def. Expert)) (acknowledging revenue share rate of 36%). iii. ISA’s Restrictions On Apple’s Search And Search Ad Activities iii. ISA’s Restrictions On Apple’s Search And Search Ad Activities 227. Under the current ISA, Apple’s implementation of Google as default in Safari must remain “substantially similar” to Apple’s implementation in 2016. The ISA refers to this requirement as the “Permissible Software Default Use.” JX0033 at -793 (§ 1(a)) (Apple ISA (2016 amend.)) (“During the Term, Apple’s use of [Google] as Default in [Safari] will remain substantially similar to its use (including, without limitation, vis-à-vis other providers of internet services) as of the Execution Date of this Agreement (such use, the ‘Permissible Software Default Use’)”); UPX0588 at -578 (Apple summary referring to this restriction as the “Safari Search Limitation”). 228. In addition to the general application of the “Permissible Software Default Use,” the ISA also contains clauses that expressly apply this restriction to aspects of Apple’s product design. For example, Apple’s ability to “alter, modify and innovate” Safari is “[s]ubject to the Permissible Software Default Use." JX0033 at -793 (§ 1(a) (second paragraph)) (Apple ISA (2016 amend.)). Google included this restriction in the 2016 amendment over Apple's objection. UPX0595 at -938 (Sept. 17, 2016 email from Cue to Pichai) (advocating for draft language that would have granted Apple the right to "alter, modify and innovate" Safari without limitation by the "Permissible Software Default Use" because "we need the ability to innovate however we see fit"); UPX0611 at -465 (Sept. 19, 2016 Pichai response) (maintaining Google's position that this draft language be "subject to the Permissible Software Default Use" restriction to "preserve the value of the deal for Google"). 229. The ISA also contains clauses applying the Permissible Software Default Use restriction to Apple's ability (1) to carve out user requests from the queries that Apple sends to Google, (2) to use Siri to respond to queries in Safari, and (3) to “pre-populate” queries as they are entered by users in Safari. JX0033 at -793 (§ 1(a) (fourth paragraph)), -795 (§ 1(c) (third paragraph)), -797 (§ 4 (fourth paragraph)) (Apple ISA (2016 amend.)). 230. At Google's request, the ISA also contains a term requiring that, if Apple wishes to display advertisements in Siri or Spotlight, Apple must provide Google the right of first refusal to supply the advertisements under the existing terms. JX0033 at -796 (§ 2) (Apple ISA (2016 amend.)) (“Following the initial implementation of the Spotlight Services or Siri Services, if Apple includes ads or paid listings in Siri or Spotlight (or successor versions), Apple will offer Google the opportunity to supply such ads or paid listings under the financial terms set forth in Section 4 of this Agreement and on equivalent implementation terms."); Tr. 2498:1–4 (Cue (Apple)) (agreeing that Google would have "the right of first refusal to offer the ads themselves"); id. 2497:11–25 (this was "something that Google wanted to have”). 2. Google Search Distribution Agreements With U.S. Carriers And Android OEMs 2. Google Search Distribution Agreements With U.S. Carriers And Android OEMs 231. Carriers and Android OEMs are distributors, not end users, of Google’s services. UPX6059 at -032 (Alphabet 2021 Form 10-K stating, “[O]ur distribution partners include browser providers, mobile carriers, original equipment manufacturers, and software developers.”); JX0091 at -745 (§ 1.29) (AT&T RSA (2021)) (defining “end user” as “any human end user of a Device or Qualified Device”); JX0049 at -866 (§ 1.17) (Motorola MADA (2018)) (defining “end user” as “a human end user of a Device”); JX0037 at -053 (§ 1.13) (Samsung MADA (2017)) (defining “end user” as “an end user of a Device”) UPX0719 at -712–13 (distinguishing between needs of users, advertisers/agencies, and partners (i.e., “search partners, content partners, mobile partners, book search partners, ISPs, etc.”)). 232. Three OEMs (Samsung, Motorola, and, until recently, LG) have manufactured most Android mobile devices sold in the United States. Tr. 1516:4–21 (Yoo (Google)) (discussing UPX0141); Tr. 775:2–5 (Kolotouros (Google)) (Samsung and Motorola manufacture the majority of the Android phones for sale in the United States.). Several other OEMs manufacture Android devices sold in the United States, including Sony Corp. (Sony)[5] and Google, which sells Google-branded Pixel devices. UPX0488 at -032 (identifying Pixel phones as one of Google’s hardware businesses); UPX0317 at -159 (identifying Pixel as part of OEM shipments in the USA). 233. Carriers sell the majority of Android devices purchased in the United States (80– 90%). Tr. 1514:10–19 (Yoo (Google)). Carriers purchase cellphones from OEMs like Apple and Samsung and sell the devices to consumers through the carriers’ stores and online. Id. 1514:10– 19 (discussing UPX0141); Tr. 9314:1–16 (McCallister (Google)). Verizon, AT&T, and T-Mobile are the three largest carriers in the United States. Tr. 9313:24–25 (McCallister (Google)). Sprint, previously the fourth-largest carrier, merged with T-Mobile in 2020. Des. Tr. 186:16–20 (Giard (T-Mobile) Dep.); Tr. 1515:15–25 (Yoo (Google)). 234. Google enters into two types of distribution agreements with Android partners: (1) MADAs, and (2) RSAs. UPX0141 (describing the major search distribution terms of the MADAs and RSAs).[6] a) MADAs a) MADAs 235. Google and Android OEMs enter into distribution agreements, called MADAs. MADAs allow OEMs to preinstall and distribute Google applications and software, also known as Google Mobile Services (GMS), on Android devices. E.g., JX0049 at -867–68 (§ 2.1) (Motorola MADA (2018)) (licensing Motorola to distribute Google applications); JX0037 at -055 (§ 2.1) (Samsung MADA (2017)) (licensing Samsung to distribute Google applications); Tr. 775:6–17 (Kolotouros (Google)) (MADA is a license to distribute Google Mobile Services on Android compatible devices); UPX6027 at -561 (written 30(b)(6) response: GMS currently includes “Google Search, Google Play Store, Google Chrome, YouTube, Google Maps, Gmail, Google Photos, YouTube Music, Google Duo, Google Drive, and Google Play Movies and TV”). 236. Google’s guiding principle for determining which apps to include in the MADA bundle is whether or not the app will generate revenue for Google. Tr. 9572:1–16 (Rosenberg (Google)); UPX0296-A at -500. 237. For more than a decade, Google has had MADAs with all the major OEMs selling Android devices in the United States: Samsung, Motorola, and LG (until LG exited the market).[7] i. Google Play Store i. Google Play Store 238. Google’s Play Store is the most popular and largest app store for Android mobile devices. Des. Tr. 91:8–15 (Baxter (Samsung) Dep.) (Play Store is “clearly the largest” app store in the United States for Android devices based on number of apps.); Des. Tr. 358:15–359:17 (Ezell (AT&T) Dep.) (primary app store for Android devices is Google Play); Des. Tr. 141:13– 16 (Christensen (Motorola) Dep.) (not aware of any Motorola devices in the United States with an app store besides Google Play). The Google Play Store and Google Play Services (GPS) (also called GMS core) are part of GMS. Tr. 786:13–17 (Kolotouros (Google)) (“The MADA is required to license both the GMS applications and also GMS core, otherwise known as Google Play Services.”). 239. Google’s Play Store is a key revenue source for Google. Tr. 9545:1–3 (Rosenberg (Google)); id. 9553:17–19 (the more users on Android devices, the more money Google can make from the Play Store). For example, Google projected that it would earn $[redacted] billion in revenue from Google Play Store on Samsung devices during the term of the 2020 Samsung RSA. Tr. 9550:12–9551:1 (Rosenberg (Google)). Infra ¶ 300 (Samsung’s 2020 RSA has a four-year term) 240. Google Play Store is a must-have for Android devices; it is not commercially feasible for an OEM to ship Android devices without Google Play Store preinstalled. Tr. 6:13–21 (Sept. 19, 2023 sealed PM session) (Yoo (Google)) (discussing UPX0312, Yoo agreed that there was a near-zero probability that Samsung would not want the Play Store because it is necessary for Samsung to offer users a variety of apps on its phones); Tr. 3517:6–25 (Nadella (Microsoft)) (an Android phone without the Play Store is a “brick”; everyone else has carrots to win deals, but the Play Store gives Google a “big stick”); Tr. 3125:10–22 (Tinter (Microsoft)) (Ultimately for Duo to be successful, Microsoft needed the Play Store license from Google.); Tr. 1024:23– 1025:6 (Higgins (Verizon)) (The Play Store comes preloaded on Android devices that Verizon sells in the United States, and he is unaware of Verizon selling an Android device in the United States without the Play Store.); Des. Tr. 111:15–21 (Giard (T-Mobile) Dep.) (The Play Store is very important to the success of Android phones that T-Mobile distributes; it is the primary way that users access apps they want on their devices.); Des. Tr. 358:15–359:17 (Ezell (AT&T) Dep.) (It is important that there is an app store on an Android device, and the primary app store for Android devices is Google Play.); UPX0312 at -154) (“OEMs want the Play store on their phone, and in return we are able to get other apps like Google search . . . on the phone as a result.”). 241. Indeed, every Android phone sold in the United States has the Google Play Store preinstalled. Tr. 12:8–10 (Sept. 19, 2023 sealed PM session) (Yoo (Google)) (not aware of any Android smartphones sold in the United States without the Play Store); Des. Tr. 92:24–93:2 (Baxter (Samsung) Dep.) (unaware of any Samsung smartphones in the United States sold without the Play Store preinstalled). 242. Google does not view the Samsung Galaxy Store as a threat to the Play Store. UPX1011 at -290 (Galaxy Store has “0 notable exclusive titles in 2019,” “[o]nly 2 out of Play top 50 free games continue to be present on Galaxy Store,” and “[w]e believe that the cannibalization of Play store revenue due to Galaxy store is none to minimal.”); UPX0312 at -154 ( “I think there is a near-zero probability of Samsung not wanting the Play store on their phone.”). Rival app stores are unlikely to succeed on Android devices because the Google Play Store is protected from competition by network effects. UPX2106 at -590 (“Play benefits from network effects. Users come to Play because we have by far the most compelling catalog of apps / games[.] Developers come to Play because that’s where the users are.”); UPX0303 at -120 (2014 Samsung submission to the European Commission stating, “[g]iven the nature of the mobile app ecosystem, Google’s first mover advantage continues to snowball, since Google Play will attract more app developers and end users as its popularity continues to grow.”); UPX2106 at -587 (Even with discounts, the “switching hurdle [is] too high for most users” to switch from the Play Store to the Amazon app store.). 243. GPS/GMS Core are a set of Google-proprietary application programming interfaces (APIs) that support Android apps’ functionality. Tr. 784:7–785:5 (Kolotouros (Google)) (Google Play Services are available to developers whose apps are in the Play Store.); UPX0125 at -066 (“Google Play Services / GMS Core is an important element of Play”; GPS/GMS Core APIs are a “set of Google APIs that help support functionality of all Android applications”). In 2016, “826 out of the top 1000 Android apps use[d] 1 or more GMS Core APIs (Facebook, WhatsApp, Twitter, and many other apps).” UPX0125 at -066. 244. The only way for an OEM to license the Google Play Store and GPS/GMS Core is by signing a MADA. Tr. 1529:19–1530:2 (Yoo (Google)) (To put the Google Play Store on its devices, an OEM must sign a MADA.); Des. Tr. 144:9–15 (Christensen (Motorola) Dep.) (agreeing that one reason Motorola agrees to the MADA is to obtain a license for Google’s APIs, as well as Google applications). ii. MADA Requirements ii. MADA Requirements 245. If an OEM wants to preinstall any one Google app on an Android device, including the Google Play Store, the OEM must preinstall a suite of 11 mandatory Google apps, including the Google Search App and Chrome. JX0037 at -055 (§ 2.1) (Samsung MADA (2017)); JX0049 at -868 (§ 2.1) (Motorola MADA (2018)); Tr. 778:16–19 (Kolotouros (Google)) (for an Android device to be a GMS device, all 11 Google apps listed in UPX0129 at -905 must be preinstalled); UPX0129 at -905 (listing 11 GMS apps that must be preinstalled under the MADA). 246. Six of these mandatory apps must be preinstalled so that they are undeletable by the user: Google Search, Chrome, Gmail, Maps, YouTube, and Google Play Store. Tr. 946:10– 12 (Kolotouros (Google)); UPX6027 at -563 (written 30(b)(6) response: “Samsung’s, LG’s, and Motorola’s current MADAs provide for preinstallation of six ‘Core’ applications, as well as GMS Core Services, on the system partition of the hard drive of an Android device that is inaccessible to the user: Google Search, Chrome, Gmail, Maps, YouTube, and Google Play.”). These six apps are referred to as the Core Apps. UPX5511 at -984 (§ 1.1) (Samsung MADA (2020 amend.)); Tr. 946:13–23 (Kolotouros (Google)) (describing the apps as “core utilities”). 247. In addition to preinstalling the 11 mandatory GMS apps, the MADA also contains placement requirements. The MADA requires the OEM (1) to place the Google Search Widget and the Google Play Store on the default home screen and (2) to place the Google Search App and Chrome, at a minimum, in a folder labeled “Google” on the default home screen. UPX0141 at -244; UPX5511 at -987 (§ 2.8) (Samsung MADA (2020 amend.)); JX0049 at -871–72 (§ 4.4) (Motorola MADA (2018)); Tr. 793:21–23 (Kolotouros (Google)) (all MADAs require the Google Search Widget to be placed on the default home screen); id. 795:5–7 (all MADAs require a Google-labeled folder or icon to be placed on the default home screen). 247. In addition to preinstalling the 11 mandatory GMS apps, the MADA also contains placement requirements. The MADA requires the OEM (1) to place the Google Search Widget and the Google Play Store on the default home screen and (2) to place the Google Search App and Chrome, at a minimum, in a folder labeled “Google” on the default home screen. UPX0141 at -244; UPX5511 at -987 (§ 2.8) (Samsung MADA (2020 amend.)); JX0049 at -871–72 (§ 4.4) (Motorola MADA (2018)); Tr. 793:21–23 (Kolotouros (Google)) (all MADAs require the Google Search Widget to be placed on the default home screen); id. 795:5–7 (all MADAs require a Google-labeled folder or icon to be placed on the default home screen). 249. Finally, the MADA prohibits OEMs from directing, instructing, or encouraging consumers to change any of a device’s out-of-the-box settings. UPX5511 at -987 (§ 2.9) (Samsung MADA (2020 amend.)) (requiring that Samsung “not include any processes, instructions, promotions, or other means that directs, instructs or encourages the End User to change the Device from being in compliance with” the MADA in the initial device setup); JX0099 at -998 (§ 2.9) (Motorola MADA (2020 amend.)) (same); Tr. 799:25–801:22 (Kolotouros (Google)) (“This language does not allow an OEM to essentially encourage . . . a user to change the settings of the defaults or the placements as has been configured per the MADA” and there is language that “would prohibit the OEM from instructing a user how to change the . . . out-of-box configuration of a device.”). 250. MADAs generally have initial two-year terms. JX0025 at -867 (Samsung MADA (2014)) (two years); JX0037 at -052 (Samsung MADA (2017)) (two years); JX0023 at -349 (Motorola MADA (2014)) (two years); JX0049 at -863 (Motorola MADA (2018)) (two years); UPX5352 at -939 (LG MADA (2017)) (two years). 251. In the past, some MADAs contained a requirement that made Google the default search engine for search access points on the device. E.g., Tr. 820:9–13 (Kolotouros (Google)) (“[T]here was a term in the MADA that secured default search on the access points . . . .”); JX0013 at -121 (§ 3.4) (Samsung MADA (2011)) (“Google Phone-top Search must be set as the default search provider for all search access points on the Device.”). The search default requirement was eventually removed from the MADA. Tr. 822:21–25 (Kolotouros (Google)) (The search default requirement was moved from the MADAs to the RSAs after September 2014.); UPX0616 at -540 (2014 email stating that Mr. Pichai supported moving the MADA’s search default requirements to the RSAs). 252. Although carriers do not sign MADAs, the Android devices that carriers sell to U.S. consumers are subject to the MADAs of the OEM that manufactured those devices. Tr. 802:19–803:8 (Kolotouros (Google)) (If an OEM builds an Android mobile device for a carrier, that device must comply with the relevant MADA terms.); Tr. 1516:24–1517:10 (Yoo (Google)) (The Android devices that carriers sell are subject to the MADAs of the OEM that manufactures those devices.). b) RSAs b) RSAs 253. Google enters into Search Ad RSAs with Android OEMs and U.S. carriers. UPX6024 at -428 (written 30(b)(6) response: “Since 2005, Google has negotiated and entered into hundreds of revenue share agreements (including amendments thereto) with dozens of third parties.”); e.g., JX0091 (AT&T RSA (2021)); JX0095 (T-Mobile RSA (2021)); JX0093 (Verizon RSA (2021)); JX0071 (Samsung RSA (2020)); JX0062 (Motorola RSA (2020)). 254. For more than a decade, Google has had RSAs with all major U.S. carriers and OEMs that sell Android mobile devices in the United States. Tr. 1514:10–19, 1516:17–23 (Yoo (Google)).[8] 255. Generally, the initial terms of carrier and OEM RSAs are around two years, but some have had terms as long as four years. The ultimate duration of each RSA depends on ad hoc amendments that vary in length. E.g., JX0015 at -980 (AT&T RSA (2011)) (2 years); JX0091 at -741 (AT&T RSA (2021)) (3 years); JX0093 at -487 (Verizon RSA (2021)) (2 years); JX0095 at -687 (T-Mobile RSA (2021)) (3 years); JX0041 at -966 (Samsung RSA (2017)) (2 years); JX0071 at -392 (Samsung RSA (2020)) (4 years); JX0061 at -099 (§ 2) (AT&T RSA (2018 amend.)) (extending the RSA by 4 months); UPX5457 at -348 (§ 2) (Samsung RSA (2011 amend.)) (extending the RSA by 2 years, 2 months). 256. Through the RSAs, Google pays either a share of the Search Ad revenue earned through covered search access points or, in some recent agreements, a flat bounty for every qualifying Android device the distributor sells. E.g., Des. Tr. 83:17–84:16 (Levine (Google) Dep.) (explaining what revenue share is); JX0093 at -515 (Attachment A) (Verizon RSA (2021)) (describing revenue sharing); JX0095 at -692 (§ 1.50) (T-Mobile RSA (2021)) (describing flat monthly payments); JX0091 at -765 (Attachment A) (AT&T RSA (2021)) (describing revenue sharing); JX0071 at -416–18 (Samsung RSA (2020)) (describing revenue sharing); JX0062 at -197–200 (Motorola MIA (2020)) (describing tiered monthly payments). 257. Google has paid billions of dollars in revenue share to Android RSA partners over the years. Tr. 7667:12–15 (Pichai (Google)); Tr. 5727:5–5728:11 (Whinston (Pls. Expert)) (discussing UPXD104 at 19 (showing Google’s RSA payments for U.S. queries to Android OEMs and carriers from 2014 to 2020) and noting that Google has paid its RSA partners, including Android partners, “billions and billions and billions of dollars”). 258. Google offers Android distributors payments in exchange for exclusivity and prime placement for search. UPX0573 at -244 (“We offer revenue share to carriers in exchange for exclusivity and prime placement on search, and in exchange for prime placement on Play.”); UPX0547 at -183 (2009 Mobile Deal Guidance stating that “exclusivity” is a “Standard Deal Requirement[]”); UPX6024 at -435 (written 30(b)(6) response: “Google’s current RSA agreements with Android partners AT&T, Verizon, T-Mobile-Sprint, and Samsung contain various provisions providing enhanced placement and/or promotion of Google services and applications, including Search, Assistant, and Chrome.”). 259. To maximize the payments they receive from Google, distributors must make Google the exclusive, out-of-the-box default GSE on their Android devices. Tr. 7666:11–18 (Pichai (Google)) (Android RSAs have “pre-load exclusivity” that makes Google the exclusive default out-of-the-box); Tr. 1520:22–1522:10 (Yoo (Google)) (discussing UPX0141 and stating the terms of the RSA template require (1) “Device exclusivity” and (2) Google to be set as the default search engine on all search access points); Tr. 817:23–818:13 (Kolotouros (Google)) (discussing UPX0129 and agreeing that for a partner to earn the highest revenue share under an RSA, all search access points on the device must be set to Google Search); Des. Tr. 153:15–24, 154:3–15 (Levine (Google) Dep.) (confirming “[f]or a device to qualify for rev share . . . it had to have search exclusivity outside the box”); Tr. 10090:8–24 (Murphy (Def. Expert)) (Google has “preinstallation exclusivity under most of the RSAs we’ve seen,” which means they have the exclusive on that device out of the box.); UPX0141 at -818 (listing “Device exclusivity” and “Default on all access points” as current template RSA terms as of 2018); UPX0578 at -038 (RSA provides “[f]ull exclusivity”); UPX1128 at -097 (Business Council review of RSA 2.0 coverage expansion indicating that the “rationale in support of the deal” included “Google receives search exclusivity on in-scope devices with regional exclusions; expected to increase mobile and tablet search revenue coverage from 63% to 85%”); UPX0603 at -371 (indicating that the first objective of the 2020 Samsung deal was to “[s]ecure platform level distribution and protections for Search & Assistant”).[9] 260. Default exclusivity is achieved through two types of RSA provisions. First, the RSAs require the distributor to set Google as the default search for all search access points on the device and, in some cases, give those search access points premium placement (e.g., Google must be the default search for search access points on all preinstalled browsers, the Google Search Widget must be placed on the default home screen). JX0093 at -498–502 (§§ 4, 5), -516– 18 (Attachments B & C) (Verizon RSA (2021)) (describing search access point requirements); JX0095 at -696, -712–13 (§ 4, Attachment A) (T-Mobile RSA (2021)) (describing search access point requirements); JX0091 at -751–53 (§ 4), -766–68 (Attachment B) (AT&T RSA (2021)) (describing search access point requirements); JX0071 at -401–03 (§§ 4, 5), -419–20 (Attachment B-1), -422–24 (Attachments C-1 & C-2) (Samsung RSA (2020)) (describing search access point requirements); JX0062 at -184–87 (§§ 4, 5) (Motorola MIA (2020)) (describing search access point requirements); UPX5392 at -120 (Attachment F) (LG MIA (2020)); Tr. 7666:25–7667:3 (Pichai (Google)) (explaining that an OEM or carrier will receive full revenue share on an Android device only if all the device’s search access points are set to Google); UPX0317 at -176 (“What we get” from RSA includes “Device exclusivity + Defaults”). 261. Second, the RSAs prohibit the distributor from preinstalling any “alternative search service” or setting any “alternative search service” as the default for any search access point on the device. E.g., JX0093 at -489, -500–01 (§§ 1.5, 5.2) (Verizon RSA (2021)) (prohibition on implementing alternative search services); JX0095 at -689, -696–97 (§§ 1.3, 4.2) (T-Mobile RSA (2021)) (prohibition on implementing alternative search services); JX0091 at -743, -752 (§§ 1.5, 4.2) (AT&T RSA (2021)) (prohibition on implementing alternative search services); JX0071 at -394, 403 (§§ 1.5, 5.2) (Samsung RSA (2020)) (prohibition on implementing alternative search services); JX0062 at -177, -185 (§§ 1.7, 4.3) (Motorola MIA (2020)) (prohibition on implementing alternative search services); UPX5401 at -016 (August 11, 2020 letter from Google to Motorola stating that the prohibition on alternative search services in MIA § 4.3 will not apply to the [lower revenue share] Foundation Tier, but will apply to the Premier Tier). 262. The RSAs generally define an “Alternative Search Service” to be any service “substantially similar to Google Search”—in other words, a general web search service. Tr. 840:11–15 (Kolotouros (Google)) (An alternative search service is “a service which is similar to Google search”; this would mean a service that returns “[g]eneral web search results when connected” to the internet.); Des. Tr. 174:23–175:11, 175:14–23, 176:1–176:5 (Ramalingam (Yahoo) Dep.) (only general web search services were prohibited by the RSA between Google and Verizon); UPX6026 at -552–53 (written 30(b)(6) response: “Although the precise definition of ‘alternative search service’ can and does vary by partner and by contract, the definition of this term typically encompasses, for example, applications, products, or services—other than Google search or Google applications—that deliver search results consisting of Internet content in response to user queries in a manner that is substantially similar to Google search.”); UPX6026 at -553 (written 30(b)(6) response: “‘[A]lternative search services’ refers to services on RSA devices that offered ‘general web search,’ meaning services that ‘search[] the web for . . . web results to general queries.’”); UPX6026 at -553 (written 30(b)(6) response: “‘[A]lternative search services’ . . . exclude search services that return results . . . confined to a particular category (and, in some cases, a small number of categories).”); UPX6030 at -621 (written 30(b)(6) response: “Examples of such services that deliver research results by searching the Internet in a manner substantially similar to Google Search include Bing and Yahoo Search”).[10] 263. Google dictates what constitutes a search access point and an “alternative search service” (i.e., what is and is not an alternative search service that is substantially similar to Google). E.g., JX0091 at -748 (§ 1.65) (AT&T RSA (2021)) (giving Google “sole discretion” to determine what qualifies as a “Search Access Point”); JX0093 at -489, -494 (§§ 1.5, 1.67) (Verizon RSA (2021)) (giving Google “reasonable discretion” to determine what qualifies as a “Alternative Search Service” or “Search Access Point”); JX0095 at -689, -694 (§§ 1.3, 1.66) (T-Mobile RSA (2021)) (giving Google “reasonable discretion” to determine what qualifies as a “Alternative Search Service” or “Search Access Point”); JX0062 at -177, -182 (§§ 1.7, 1.81) (Motorola MIA (2020)) (giving Google “sole discretion” to determine what qualifies as a “Alternative Search Service” or “Search Access Point”). This gives Google control of the coverage and breadth of its exclusive contracts. Des. Tr. 124:8–125:6 (Christensen (Motorola) Dep.). Google acknowledges that there is ambiguity in what constitutes an alternative search service and that “[t]here is no formal guidance or similar document specifying what falls within the definition.” UPX6030 at -622 (written 30(b)(6) response: Consideration of what constitutes an “alternative search service” “involves the input of a number of individuals at Google” and “[t]here is no fixed or final arbiter for this question.”). 264. Throughout the period covered by the complaint, RSAs have come in three flavors: (1) platform wide: all Android devices the distributor sells must meet the requirements for the distributor to receive any payments from Google, platform wide: (2) device-by-device: the distributor can choose to configure a device to meet the RSA requirements—if the device meets the requirements the distributor can receive payments for searches on that device, regardless of whether other devices meet the RSA requirements or not, or device-by-device: (3) both: an RSA may have one tier with certain requirements that are platform wide and entitle the distributor to some payments and a second tier with additional requirements that the distributor can choose to meet on a device-by-device basis to earn additional payments. both: Compare JX0091 at -749 (§ 2.2) (AT&T RSA (2021)) (containing only a device-by-device Preferred Tier for new devices) with JX0093 at -496 (§§ 2.2, 2.3) (Verizon RSA (2021)) (containing both a platform-wide Core Tier and a device-by-device Preferred Tier for new devices) and JX0047 at -295 (§ 2.1) (T-Mobile RSA (2017)) (containing a single platform-wide tier for new device with Google apps); Tr. 823:9–824:15 (Kolotouros (Google)) (device by device means that if a particular device meets the RSA's conditions, the partner could receive revenue share for that device; a platform-wide RSA means that “all devices must be enrolled in the deal" to earn revenue share). Compare 265. In the context of negotiating Samsung's RSA, Google referred to “search defaults on all access points" and "search exclusivity on a device-by-device basis" as "[t]raditional [RSA] commitments." UPX1108 at -811. 266. In addition to search-related requirements, more recent RSAs may also include letter-upgrade and security-update requirements (the Samsung RSA (2020) has no such requirements). E.g., JX0093 at -502 (§ 5.4) (Verizon RSA (2021)); JX0095 at -699–700 (§ 4.6) (T-Mobile RSA (2021)); JX0091 at -753 (§ 4.4) (AT&T RSA (2021)); JX0062 at -185–86 (§§ 4.4, 4.5) (Motorola MIA (2020)). 267. Generally, only one partner can earn revenue share on a particular Android mobile device: the OEM or the Carrier. UPX0294 at .010 (“Since we sign RSAs with both, we track revenue sharing through the unique Client ID set on each phone. This can only go to one partner, OEMs and carriers fight for ownership."). In the United States, the majority of RSA payments are made to carriers. Tr. 9446:16–22 (Rosenberg (Google)); UPX0294 at .010 ("In practice, it tends to go to whichever type of partner is the main smartphone distribution channel in a given market (in more developed markets, this tends to be carriers)."). 268. Google's RSAs with carriers cover Android devices that carriers sell to consumers. Tr. 940:25–942:4 (Kolotouros (Google)). Google's RSAs with OEMs cover the smaller portion of Android devices that OEMs sell directly to U.S. consumers. Id. (Android devices sold to consumers by Samsung and Motorola (as opposed to carriers) are covered by their respective RSAs). One exception to this general rule is that, even on carrier-sold devices, Samsung earns [redacted]% revenue share from default queries on Chrome, if Chrome is in the hot seat and the default browser. JX0071 at -404, -416-17, -424 (§ 7, Attachment A, Attachment C-2) (Samsung RSA (2020)). i. Google Haas RSAs With All Major U.S Carries i. Google Haas RSAs With All Major U.S Carries 269. Google offers revenue share to carriers only for devices built in compliance with the MADA preinstallation and placement requirements. JX0093 at -490–91, -494 (§§ 1.12, 1.18, 1.23, 1.58) (Verizon RSA (2021)) (for a carrier to earn revenue share on an Android device it must have been manufactured by an OEM with a MADA ); JX0095 at -689-90, -693 (§§ 1.7, 1.10, 1.19, 1.55) (T-Mobile RSA (2021)) (same); JX0091 at -744-45, -747 (§§ 1.13, 1.26, 1.56) (AT&T RSA (2021)) (same); Tr. 1516:24–1517:10 (Yoo (Google)) (Although carriers do not sign MADAS, the devices carriers sell are subject to the MADAs of the OEMs that manufacture the devices.). 270. Even if carriers do not sign an RSA, the Android devices they sell are still bound by the terms of the OEM's MADA if Google apps are preinstalled. Supra ¶ 252; UPX6027 at -564 (written 30(b)(6) response: "[I]f an Android OEM chooses to preload the Google proprietary applications that Google distributes through the MADA, including on devices that OEMs build for U.S. carriers, the OEM must comply with the terms of the MADA, subject to Google granting a waiver.”). 271. The most recent set of carrier RSAs were signed in 2021. JX0091 (AT&T RSA (2021)); JX0093 (Verizon RSA (2021)); JX0095 (T-Mobile RSA (2021)). (a) The AT&T RSA Ensures Google Is The Exclusive Default Search (a) The AT&T RSA Ensures Google Is The Exclusive Default Search 272. The AT&T RSA has ensured that Google is the exclusive search default on AT&T Android smartphones since 2011. JX0015 (AT&T RSA (2011)). In exchange for revenue share payments, AT&T agrees to make Google the default search on all search access points (e.g., AT&T agrees to set Google as the default search on all preinstalled browsers, including S Browser) and place the Google Search Widget on the default home screen. JX0091 at -751 (§ 4.1), -766–68 (Attachment B) (AT&T RSA (2021)); UPX1024 at -294 (“Search agreements are mechanisms to tie rev share to exclusivity.”). AT&T is prohibited from preinstalling any rival GSE or setting any rival GSE as the default on any search access point. JX0091 at -752 (§ 4.2) (AT&T RSA (2021)). 273. The current RSA, signed in 2021, has only one revenue share tier for new devices. JX0091 at -751 (§ 4.1) (AT&T RSA (2021)). AT&T may choose on a device-by-device basis to enroll devices in the RSA and earn [redacted]% revenue share on user searches conducted through enumerated search access points. JX0091 at -751 (§ 4.1), -765 (Attachment A, § 1(a)) (AT&T RSA (2021)). The 2021 RSA also entitles AT&T to [redacted]% of Search Ad revenue on search access points on old devices that continue to comply with the 2018 RSA. JX0091 at -765 (Attachment A, § 1(b)) (AT&T RSA (2021)). AT&T enrolls virtually all its Android smartphones in the RSA. Des. Tr. 193:5–14, 194:19–21, 195:3–6 (Ezell (AT&T) Dep.) (unaware of AT&T opting any Android phones out of the RSA and there are no plans to do so in the future); Des. Tr. 177:17–20, 177:23–178:2 (Levine (Google) Dep.) (unaware of any AT&T devices excluded from being RSA qualified devices circa 2018). 274. The 2021 RSA has a three-year term. JX0091 at -741 (AT&T RSA (2021)). AT&T may only terminate the RSA if Google breaches the contract. JX0091 at -758–59 (§ 10.2) (AT&T RSA (2021)). 275. Before 2021, the 2018 AT&T RSA controlled. It was also one tier and device-bydevice. JX0050 at -008 (§ 2.1) (AT&T RSA (2018)). In exchange for revenue share from Google, AT&T agreed to make Google the out-of-the-box default on all search access points and AT&T was prohibited from implementing rival GSEs on any Android device it enrolled in the RSA. JX0050 at -008 (§ 2.1), -009–10 (§ 2.4), -024–25 (Exhibit B) (AT&T RSA (2018)). (b) The Verizon RSA Ensures Google Is The Exclusive Default Search (b) The Verizon RSA Ensures Google Is The Exclusive Default Search 276. Verizon’s RSA has ensured that Google is the exclusive default search engine on Verizon devices since 2011. JX0016 at -678 (§ 12) (Verizon RSA (2011 amend.)). The current Verizon RSA, signed in 2021, has two revenue-share tiers for new devices. JX0093 at -496 (§§ 2.2, 2.3) (Verizon RSA (2021)). If Verizon wants to earn any revenue share from Google on any Verizon device, all of its Android devices must meet the Core Tier requirements. JX0093 at -496 (§ 2.2) (Verizon RSA (2021)). The Core Tier requires Verizon to set Google as the default search engine in either Chrome or Samsung’s S Browser and place that browser in the hot seat on every device sold by Verizon. JX0093 at -498–99 (§§ 4.1, 4.2), -516 (Attachment B) (Verizon RSA (2021)). If Verizon enrolls a device in the Core Tier, Verizon earns [redacted]% of net Search Ad revenue on the enumerated search access points. JX0093 at -515 (Attachment A, § 1(a)) (Verizon RSA (2021)). 277. Verizon may earn additional revenue share by enrolling a device in the Preferred Tier, which requires Verizon to make Google the default search on all search access points (e.g., Verizon agrees to set Google as the default search on all preinstalled browsers), place the Google Search Widget on the default home screen, and set Chrome (not S Browser) as the default browser and place it in the hot seat. JX0093 at -496 (§ 2.3), -499–500 (§ 5.1), -517–18 (Attachment C) (Verizon RSA (2021)); Tr. 1027:15–19 (Higgins (Verizon)) (The hot seat is “generally considered to be preferred because . . . it’s on the home screen and it’s persistent across the other screens as well.”). 278. In the Preferred Tier, Verizon is prohibited from preinstalling any rival GSE or setting any rival GSE as the default on any search access point. JX0093 at -500–01 (§ 5.2) (Verizon RSA (2021)); Tr. 9327:2–19 (McCallister (Google)) (Google expects a carrier partner to whom Google is paying at the highest revenue share to work on “promotional exclusivity” and should not be “promoting a rival search engine at the same time”). If Verizon enrolls a device in the Preferred Tier, Verizon earns [redacted]% of net Search Ad revenue on the enumerated search access points. JX0093 at -515 (Attachment A, § 1(b)) (Verizon RSA (2021)). Verizon enrolls all its Android smartphones in the Preferred Tier. Tr. 1050:18–22 (Higgins (Verizon)) (“The new devices that we sold, I believe, all of them would have been at the [redacted]percent tier.”). 279. Verizon secured a limited carveout in the Preferred Tier that allowed Verizon to preinstall the Yahoo Mobile App, which has search capability, as long as Verizon owned Yahoo, placed the app on the plus one screen (not the home screen), and Verizon made sure the app “didn’t allow a punch-out into general search.” Tr. 1094:19–1095:15 (Higgins (Verizon)); JX0093 at -500 (§ 5.2) (Verizon RSA (2021)). Verizon sold Yahoo in May 2021, before executing the RSA, making the carveout ineffectual. Tr. 1072:11–13 (Higgins (Verizon)). 280. The 2021 RSA also entitles Verizon to [redacted]% of net Search Ad revenue on search access points on old devices that continue to comply with the 2014 amendment to Verizon’s 2009 RSA (2014 RSA). JX0093 at -496 (§ 2.4), -515 (Attachment A, § 1(c)) (Verizon RSA (2021)). 281. The 2021 RSA has a two-year term. JX0093 at -487 (Verizon RSA (2021)). Verizon may only terminate the RSA if Google breaches the contract. JX0093 at -508 (§ 11.2) (Verizon RSA (2021)). 282. Before 2021, Verizon’s 2014 RSA controlled. It had one revenue tier and was platform wide. JX0026 at -277 (Exhibit 8, § 2(b)), -280 (Exhibit 8, § 3(c)) (Verizon RSA (2014 amend.)); Des. Tr. 233:17–234:7, 234:11–236:10 (Levine (Google) Dep.) (Verizon’s RSA in place at the time she joined Google’s North American carrier group was a platform deal). In exchange for revenue share from Google, Verizon agreed to set Google as the default search on preinstalled browsers and place the Google Search Widget on the default home screen. JX0026 at -278–79 (Exhibit 8, § 2(l)), -280 (Exhibit 8, § 3(c)) (Verizon RSA (2014 amend.)). 283. Due to a drafting error, Verizon’s 2014 RSA did not explicitly prohibit the carrier from preinstalling rival GSEs. Tr. 9356:24–9357:12 (McCallister (Google)) ([A]fter Google realized that the exclusivity provision was struck inadvertently in the previous agreement, Google “precipitated the renegotiations of the RSA.”); Des. Tr. 233:17–234:7, 234:11–236:16, 236:20–238:1, 238:8–240:6, 241:17–242:14 (Levine (Google) Dep.) (Google discovered Verizon was not technically obligated to grant search exclusivity under the 2014 RSA due to a drafting error.); Des. Tr. 237:11–238:1, 238:8–10 (Levine (Google) Dep.) ([T]he drafting error removing search exclusivity was particularly egregious because “[m]ost of the value in the prior [Verizon RSA] agreement was coming from exclusivity.”); UPX2093 at -398 (“[I]n previous amendments . . . the exclusivity provision was removed (!!) so we are paying Verizon [redacted]% for basically nothing right now. . . . [T]he highest priority is resecuring exclusivity.”). (c) The T-Mobile RSA Ensures Google Is The Exclusive Default Search (c) The T-Mobile RSA Ensures Google Is The Exclusive Default Search 284. T-Mobile’s RSA has ensured that Google is the exclusive default search engine on T-Mobile devices since 2009. JX0011 at -180 (§ 2.1) ((T-Mobile RSA (2009)). In exchange for revenue share payments, T-Mobile agrees to make Google the default search on all search access points (e.g., T-Mobile agrees to set Google as the default search on all preinstalled browsers, including S Browser), make Chrome the default browser and place it in the hot seat, and place the Google Search Widget on the default home screen. JX0095 at -696, -697–98 (§§ 4.1, 4.3), -712–13 (Attachment A) (T-Mobile RSA (2021)). T-Mobile is also prohibited from preinstalling any rival GSE or setting any rival GSE as the default on any search access point. JX0095 at -696–97 (§ 4.2) (T-Mobile RSA (2021)). 285. The 2021 T-Mobile RSA has only one payment tier for new devices. JX0095 at -695 (§ 2.2) (T-Mobile RSA (2021)). T-Mobile may choose on a device-by-device basis to enroll devices in the RSA, which then pays $[redacted] per device per month for those enrolled devices. JX0095 at -692 (§ 1.50), -695 (§ 2.2), -702–03 (§ 9.1) (T-Mobile RSA (2021)). The 2021 RSA also entitles T-Mobile to $[redacted] per device per month for old devices that continue to comply with the 2017 RSA. JX0095 at -692 (§ 1.50), JX0095 at -695 (§ 2.3), -702–03 (§ 9.1) (T-Mobile RSA (2021)); Des. Tr. 201:17–203:9 (Giard (T-Mobile) Dep.) (describing the structure of the 2021 T-Mobile RSA, which pays T-Mobile for each conforming Android device it sells). T-Mobile enrolls virtually all its Android smartphones in the RSA. Des. Tr. 195:1–20 (Giard (T-Mobile) Dep.) (As of January 2022, all T-Mobile devices conformed with the RSA and T-Mobile had no plans to launch any non-conforming devices.). 286. The 2021 RSA has a three-year term. JX0095 at -687 (T-Mobile RSA (2021)). T-Mobile may only terminate the RSA if Google breaches the contract. JX0095 at -704 (§ 10.2) (T-Mobile RSA (2021)). 287. Before 2021, the 2017 RSA controlled. It had one revenue-share tier and required platform-wide compliance. JX0047 at -295 (§ 2.1) (T Mobile RSA (2017)). In exchange for revenue share from Google, T-Mobile agreed to make Google the out-of-the-box default on all search access points and was prohibited from implementing rival general search services on every Android device. JX0047 at -295 (§ 2.1), -297-98 (§ 2.4), -314-15 (Exhibit B) (T-Mobile RSA (2017)); UPX0287 at -409 (summarizing the new RSA terms that Google was proposing to T-Mobile in 2017). 288. T-Mobile acquired Sprint in April 2020. UPX5545 at -480 (Sprint RSA (2020 amend.)). Sprint's 2017 RSA followed the same structure as T-Mobile's 2017 RSA. Compare JX0047 (T-Mobile RSA (2017)) with UPX5536 (Sprint RSA (2017)). Sprint has had an RSA with Google since 2008. UPX5533 (Sprint RSA (2008)). ii. Carrier Mobile Services Incentive Agreements (MSIAs) ii. Carrier Mobile Services Incentive Agreements (MSIAs) 289. In 2021, each carrier entered into mobile services incentive agreements (MSIAs) with Google; these are sometimes referred to as go-to-market agreements. JX0092 (AT&T MSIA (2021)); JX0096 (T-Mobile MSIA (2021)); JX0094 (Verizon MSIA (2021)); Tr. 9460:24— 9461:23 (Rosenberg (Google)). Under the MSIAS, carriers earn additional payments on Android devices they sell in exchange for meeting various non-search related requirements. JX0092 at -778 (AT&T MSIA (2021)); JX0096 at -721 (T-Mobile MSIA (2021)); JX0094 at -530 (Verizon MSIA (2021)). 290. The MSIAS and RSAs were not contingent on each other—a carrier did not have to sign an RSA to sign an MSIA and vice versa. Tr. 9376:21–9377:8 (McCallister (Google)). Unlike the RSAs, the MSIAs did not require the carriers to preinstall Google Search or set Google Search as the default. Id. 9377:15–9378:2. During the RSA renegotiations in 2020 and 2021, Google sometimes referred to the RSAs as “Deal 1” and the MSIAs as “Deal 2.” UPX2097 at -742. 291. Google designed the MSIAs and associated payments to support the sale of Android devices. Tr. 9378:23–9379:1 (McCallister (Google)); Tr. 9460:24–9461:23 (Rosenberg (Google)) (MSIAs redirected investment toward specific go-to-market activities aimed at helping Android compete against iOS.); UPX2097 at -742 (Deal 2 payments needed “to incentivize Android device share”). To that end, the MSIAs require the carriers and Google to collaborate on how MSIA payments will be spent to support Android. JX0092 at -784–86 (§ 5) (AT&T MSIA (2021)); JX0096 at -726–28 (§ 4) (T-Mobile MSIA (2021)); JX0094 at -536–37 (§ 5) (Verizon MSIA (2021)); Tr. 9460:24–9461:23 (Rosenberg (Google)). iii. Google Has RSAs With All Major Android OEMs iii. Google Has RSAs With All Major Android OEMs 292. Google offers revenue share to Android OEMs only if they are MADA licensees. Tr. 1516:24–1517:10 (Yoo (Google)) (when OEMs sell Android devices pursuant to their RSAs, the devices are also subject to a MADA); Tr. 777:12–15 (Kolotouros (Google)) (could not identify any Android OEM with an RSA but not a MADA); id. 778:2–6 (“[T]he RSA generally does not happen unless an OEM has entered into a MADA.”); Des. Tr. 99:18–25, 101:4–8 (Christensen (Motorola) Dep.) (to earn revenue share, Motorola must have, and be incompliance with, a MADA); JX0062 at -189 (§ 7.1) (Motorola MIA (2020)); JX0071 at -406 (§ 10.1) (Samsung RSA (2020)). 293. The most recent set of Android OEM RSAs were signed in 2020. JX0071 (Samsung RSA (2020)); UPX5399 (Motorola MIA (2020)). (a) The Samsung RSA Ensures Google Is The Exclusive Default Search (a) The Samsung RSA Ensures Google Is The Exclusive Default Search 294. The Samsung RSA has ensured that Google is the exclusive default search engine on Samsung devices since 2011. JX0014 at -933 (§ 12) ((Samsung RSA (2011)). In 2020, Jim Kolotouros, VP of Android Platform Partnerships, referred to the Samsung RSA as the [redacted] UPX0900 at -139. 295. Samsung’s 2020 RSA has two revenue-share tiers for new devices it sells to U.S. consumers. JX0071 at -399 (§§ 2.1, 2.2) (Samsung RSA (2020)). If Samsung wants to earn any revenue share from Google, Samsung must configure all its Android devices to meet the Core Tier requirements. JX0071 at -399 (§ 2.1) (Samsung RSA (2020)); Tr. 3237:8–3238:17 (Tinter (Microsoft)) (Samsung was not willing to enter into a partnership with Microsoft using Bing because that would affect the Google MADA and put Samsung at risk.); id. (Tinter counseled his team that any deal with Samsung would have to have Chrome on the device set to Google as a default so as not “to make Google mad.”); UPX0164 at -579 (In an email discussing a possible Microsoft deal, Samsung stated that “[r]eplacing Google Search with Bing would not only violate [Samsung’s] Google contract but it will highly impact rev share (Rev share that we get from Google on Search is huge . . . ).”). 296. The Core Tier requires, among other things, that Samsung set Google as the default search on S Browser. JX0071 at -401 (§ 4.1), -419–20 (Attachment B-1) (Samsung RSA (2020)). The restrictions on S Browser in the Core Tier are very specific. For example, Samsung’s S Browser can include rival GSEs in the address bar drop-down menu, but if a user selects a rival GSE from that menu, the action cannot change the default, i.e., that rival GSE will only be used for that single search, the default search in the address bar the next time the user runs a search will remain Google. JX0071 at -426–28 (Attachment E) (Samsung RSA (2020)); Tr. 885:19–888:2 (Kolotouros (Google)) (Samsung violated its 2017 RSA when a user selected a rival GSE from the drop-down menu and that selection changed the default search for S Browser’s address bar.). In the Core Tier, Samsung earns [redacted]% of net Search Ad revenue from S Browser default searches. JX0071 at -416 (Attachment A, § 1(a)) (Samsung RSA (2020)). 297. Samsung can earn additional revenue share by enrolling a device in the Enhanced Tier. JX0071 at -399 (§ 2.2) (Samsung RSA (2020)). Samsung may choose to make Enhanced Tier devices (i) Search Enhanced, which requires setting the Google Search Widget and GSA pursuant to the MADA and setting all search intents and all relevant preinstalled apps or services to GSA, (ii) Chrome Enhanced, which requires setting Chrome as the default browser and placing it in the hot seat, or (iii) Search and Chrome Enhanced. JX0071 at -402 (§ 5.1), -422–24 (Attachments C-1 & C-2) (Samsung RSA (2020)). 298. If Samsung enrolls a device in the Enhanced Tier, it earns [redacted]% of net Search Ad revenue on those additional search access points Samsung configures to meet the Enhanced Tier requirements. JX0071 at -402–03 (§ 5.1), -416 (Attachment A, § 1(b)) (Samsung RSA (2020)). On devices Samsung sells to carriers—i.e., devices covered by the carriers’ RSA and for which Samsung would not otherwise earn any revenue share—Samsung can earn [redacted]% of net Search Ad revenue derived from default Chrome searches, if Chrome is preinstalled as the default browser and placed on the hot seat. JX0071 at -404 (§ 7.1), -416 (Attachment A, § 1(c)) (Samsung RSA (2020)). The 2020 RSA also entitles Samsung to [redacted]% revenue share for old devices that continue to comply with the 2017 RSA. JX0071 at -404 (§ 6.1), -417 (Attachment A, § 1(d)) (Samsung RSA (2020)). 299. Samsung enrolls virtually all the Android smartphones it sells to consumers in the Search and Chrome Enhanced Tier, which requires search exclusivity. Tr. 920:24–921:11, 923:25–924:9 (Kolotouros (Google)) (stating that “most, if not all, [Samsung sold Android devices] are going to be enrolled in the Search and Chrome enhanced [tier]” and subject to search exclusivity out of the box); UPX0166 at -544 (Google pays aggressively for S Browser search defaults and putting Chrome in the hot seat.). 300. Samsung’s 2020 RSA has a four-year term. JX0071 at -392 (Samsung RSA (2020)). Samsung may only terminate the RSA if Google breaches the contract. JX0071 at -409– 10 (§ 14.2) (Samsung RSA (2020)). 301. Before 2020, the 2017 RSA controlled. It had one revenue-share tier and was device-by-device. JX0041 at -971–72 (§ 2.1) (Samsung RSA (2017)). In exchange for revenue share from Google, Samsung agreed to make Google the out-of-the-box default on all search access points and was prohibited from implementing rival GSEs on any Android device Samsung enrolled in the RSA. JX0041 at -971–72 (§ 2.1), -975–76 (§ 2.5), -987–88 (Exhibit B) (Samsung RSA (2017)). (b) Samsung Signed Two Additional Agreements With Google In 2020 (b) Samsung Signed Two Additional Agreements With Google In 2020 302. When Samsung signed the RSA with Google in 2020, Samsung simultaneously signed two additional agreements: (1) the Mobile Services Incentive Agreement (MSIA), and (2) Go To Market Incentive Payments Pool Agreement (GTM Agreement). JX0072 (Samsung MSIA (2020)); JX0075 (Samsung GTM Agreement (2020)); UPX0786 (summarizing the three 2020 deals). The MSIA makes Samsung eligible for additional payments if Samsung meets certain requirements, including those relating to Google’s messaging app and a Google Minus One Screen experience on devices. JX0072 at -239 (Samsung MSIA (2020)). 303. For Samsung, security update and letter grade requirements are contained in the GTM agreement rather than the RSA. JX0075 at -368–69 (§ 4) (Samsung GTM Agreement) (2020)). The GTM agreement is also aimed at “promot[ing] sales of [Samsung’s] Android phones and tablets,” and makes Samsung eligible for additional payments for each Android device Samsung sells to carriers or consumers in certain territories, including the United States, that meets a variety of requirements. JX0075 at -365 (Samsung GTM Agreement (2020)). The GTM agreement requires devices sold in the United States be configured to meet the RSA’s Enhanced Tier, which requires search exclusivity. JX0075 at -368 (§ 3.1 (c)) (Samsung GTM Agreement) (2020)). If the consumer buying the Android device was switching to Android from iOS, Samsung receives larger payments. JX0075 at -381 (Attachment A) (Samsung GTM Agreement (2020)). (c) The Motorola RSA Ensures Google Is The Exclusive Default Search (c) The Motorola RSA Ensures Google Is The Exclusive Default Search 304. The Motorola RSA has ensured that Google is the exclusive default search engine on Motorola devices since 2005. JX0003 at -158–59 (§ 4), -160 (§ 6) (Motorola RSA (2005)). The 2020 Motorola RSA (also referred to as the Mobile Incentive Agreement or MIA) has two payment tiers for new devices Motorola sells to U.S. consumers. JX0062[11] at -183 (§ 2.1) (Motorola MIA (2020)). If Motorola wants to receive any payments from Google, the OEM must configure all its Android devices to at least meet the Foundation Tier requirements. JX0062 at -183 (§ 2.1) (Motorola MIA (2020)). Among other things, the Foundation Tier requires Motorola to set Chrome (with Google set as the default GSE) as the default browser and place it in the hot seat. JX0062 at -178 (§§ 1.21, 1.22), -184–85 (§§ 4.1, 4.3) (Motorola MIA (2020)).. In the Foundation Tier, Motorola earns at least $[redacted] per month, with additional payments if it meets certain upgrade and security metrics. JX0062 at -197–98 (Attachment A, § 1) (Motorola MIA (2020)). 305. Motorola can earn additional payments by enrolling a device in the Premier Tier, which requires Motorola to make Google the default search on all search access points (e.g., Motorola agrees to set Google as the default search on all preinstalled browsers) and place the Google Search Widget on the default home screen. JX0062 at -183 (§ 2.1), -186–87 (§ 5.1), -201 (Attachment B) (Motorola MIA (2020)). In the Premier Tier, Motorola is prohibited from preinstalling any rival GSE or setting any rival GSE as the default on any search access point. JX0062 at -177 (§ 1.7), -185 (§ 4.3), -186–87 (§ 5.1) (Motorola MIA (2020)). 306. The prohibition on implementing rival GSEs on devices was originally part of the Foundation Tier, but Google removed that obligation from the Foundation Tier in August 2020, during the Department of Justice’s investigation of Google’s exclusionary conduct and two months before the complaint was filed in this matter. UPX5401 at -016 (Google unilaterally informing Motorola that the prohibition on alternative search services in MIA § 4.3 will no longer apply in the Foundation Tier); ECF No. 1 (DOJ Complaint) (filed Oct. 20, 2020). 307. If Motorola enrolls a device in the Premier Tier, the company receives significant additional monthly payments from Google. JX0062 at -198–200 (Attachment A, § 2) (Motorola MIA (2020)). Virtually all the Android smartphones Motorola sells to consumers are enrolled in the Premier Tier, which requires search exclusivity. Tr. 911:11–912:3, 924:10–14 (Kolotouros (Google)) (More than 95% of Motorola Android devices sold to U.S. consumers meet the Premier Tier’s search exclusivity requirement). 308. The 2020 RSA has a two-year term. JX0062 at -175 (Motorola MIA (2020)). Motorola may only terminate the RSA if Google breaches the contract. JX0062 at -192 (§ 12.2) (Motorola MIA (2020)). 309. Before 2020, the 2017 Motorola RSA controlled. It had one revenue-share tier and provided compensation device-by-device. JX0039 at -799 (§ 2.1) (Motorola RSA (2017)). In exchange for revenue share from Google, in 2017 Motorola agreed to make Google the out-ofthe-box default on all search access points and was prohibited from implementing rival GSEs on any Android device Motorola sold to consumers. JX0039 at -799 (§ 2.1), -800–01 (§ 2.4), -810 (Exhibit B) (Motorola RSA (2017)). 3. Revenue Share Agreements With Third Party Browsers 3. Revenue Share Agreements With Third Party Browsers 310. Google also secures itself as the default search engine in the only meaningful third-party browsers by paying hundreds of millions of dollars each year. Des. Tr. 190:12–17, 190:21–191:2, 191:5–10 (Baker (Mozilla) Dep.) (Google pays “hundreds of millions of dollars a year” to Mozilla to be Firefox’s nearly worldwide default search engine.); UPX6024 at -436 (written 30(b)(6) response: “Google’s current RSA agreement with Mozilla provides for Google to be the default search provider on Mozilla’s Firefox browser.”). a) Google Has An Exclusive Default Search Agreement With Mozilla Firefox a) Google Has An Exclusive Default Search Agreement With Mozilla Firefox 311. Google’s contract with Mozilla—which owns Firefox, the largest third-party browser—requires Mozilla to exclusively preset Google as the default search engine for all the browser’s search access points, including all search boxes within the browser frame, the navigation bar, all search boxes displayed on a default homepage and new tab page, and rightclick search functionality. JX0031 at -615 (§ 1), -616–17 (§ 2.1(a)) (Mozilla SA (2016)) (establishing default terms applicable outside the United States); JX0048 at -775 (§ 1) (Mozilla SA (2017 amend.)) (extending the terms of JX0031 to the United States). Under Mozilla’s default search agreement, the company receives [redacted]% of Google’s gross Search Ad revenue from Firefox. JX0048 at -775–76 (§ 2.1(b)) (Mozilla SA (2017 amend.)). 312. Google’s search revenue share accounts for a substantial majority of Mozilla’s revenue—80% of Mozilla’s revenue comes from its revenue sharing agreement with Google. Des. Tr. 41:18–24 (Baker (Mozilla) Dep.). 313. Google first contracted with Mozilla in 2004 to set Google Search as the Firefox default. UPX5434 at -126–27 (§ 2.4) (Mozilla SA (2004)). Over the following decade, the agreement was amended many times, all while preserving the default requirement from the original agreement. UPX5435 (Mozilla SA (2005 amend.)); UPX5436 (Mozilla SA (2005 amend.)); UPX5437 (Mozilla SA (2006 amend.)); UPX5438 (Mozilla SA (2008 amend.)); JX0018 (Mozilla SA (2011 amend.)). 314. In 2014, Mozilla changed the default GSE in Firefox from Google to Yahoo. Des. Tr. 69:22–70:3 (Baker (Mozilla)) Dep.). Mozilla’s bet did not pay off. After becoming the Firefox default, Yahoo responded to the deal’s financial pressure by loading its page with ads and degrading the user experience. Infra ¶ 1261. Yahoo no longer represented a viable option for Mozilla, and Mozilla returned to Google. Des. Tr. 79:2–14, 271:18–272:2 (Baker (Mozilla)) Dep.). 315. Accordingly, in 2017, Google again began requiring Mozilla to set the Firefox default search engine to Google Search. JX0031 at -615 (§ 1), -616–17 (§ 2.1(a)) (Mozilla SA (2016)) (establishing default terms then-inapplicable to the United States); JX0048 at -775 (§ 1) (Mozilla SA (2017 amend.)) (extending the terms of JX0031 to the United States). In the years since, Google has amended the agreement while preserving the default requirement. JX0065 (Mozilla SA (2020 amend.)). b) Google Has Exclusive Default Distribution Agreements With Opera And Other Small Third-Party Browsers b) Google Has Exclusive Default Distribution Agreements With Opera And Other Small Third-Party Browsers 316. Several additional software companies develop web browsers available to users in the United States. Those include Opera Limited (Opera), which develops the Opera browser; and UCWeb Inc. (UCWeb), which develops the UC browser. 317. Google has had an exclusive default search agreement with Opera since 2012, under which Opera’s browser must default to Google for all search access points (with limited exceptions). UPX5131 at -939 (§ 2) (Opera DA (2012)). Google and Opera have agreed on at least 15 amendments since the initial signing (usually well before the termination of the agreement), with each amendment containing substantially the same requirement that Google serve as the default search service.[12] Google entered its most recent extension of the default search agreement with Opera in December 2021. UPX5146 (Opera DA (2021 amend.)). The agreement has a [redacted]. UPX5146 at -372 (§ 9.1) (Opera DA (2021 amend.)). Opera’s current revenue share rate is [redacted]. UPX5146 at -386–91 (§§ 6–7) (Opera DA (2021 amend.)). 318. Google has had a similarly exclusive contract with UCWeb regarding its browser, UC Browser, since as early as April 1, 2017, and continuing through today. UPX5210 at -849–50 (§ 2.1) (UCWeb SA (2017)); UPX5211 at -881–82 (§ 2.1) (UCWeb SA (2018)); UPX5212 at -810–11 (§ 2.1) (UCWeb SA (2020)); UPX5213 (UCWeb SA (2020 amend.)); UPX5214 (UCWeb SA (2021 amend.)). The most recent term of the agreement was [redacted]. UPX5212 at -819 (§ 11.1) (UCWeb SA (2020)). 4. Google’s Search Distribution Agreements Are Profitable 4. Google’s Search Distribution Agreements Are Profitable 319. Google’s search distribution agreements are profitable. Tr. 4773:23–4774:25 (Whinston (Pls. Expert)); Tr. 9785:16–9787:1 (Murphy (Def. Expert)) (“there’s a lot of headroom” between what Google pays for defaults and what it would pay). 320. Google refers to the payments that it makes to its search distribution partners to secure defaults as “traffic acquisition costs” or “TAC.” Des. Tr. 24:7–10 (Porat (Google) Dep.); id. 25:20–22 (agreeing that TAC is “the investment by Google to acquire Search traffic from a partner”); Tr. 1256:24–1257:1 (Dischler (Google)) (agreeing that TAC is “the cost that Google pays its partners in order to receive query traffic”). 321. Google determines the profitability of default distribution agreements by measuring the incremental revenue Google would expect to gain from a default relative to the TAC required to secure that default. Tr. 1539:9–1540:9 (Roszak (Google)); Tr. 10049:6–10 (Murphy (Def. Expert)) (when Google offers rev share, it calculates the incremental benefit of defaults to help guide its decision-making); UPX6024 at -437–38 (written 30(b)(6) response: “Prior to entering into these revenue share agreements, Google personnel will often estimate total revenue to be generated from search access points covered by the agreement and the total payments Google expects to make under [the] agreement to the partner.”); UPX0551 at -233 (Mr. Pichai stating, “[i]ncremental Searches: This is pretty simple. When we do distribution deals, the value that is created is if we get more searches that we would otherwise have not due to the deal.”) (emphasis in original). more searches that we would otherwise have not more searches that we would otherwise have not 322. Google has never entered into a default distribution deal where the TAC exceeded the expected incremental revenue. Tr. 1540:19–22 (Roszak (Google)). Ruth Porat, Google’s Chief Financial Officer, agrees that “the value of the acquired traffic that Google gets from the TAC payments exceeds [] the cost of the payments that Google makes” and that “[o]therwise [Google] wouldn’t make the payments.” Des. Tr. 29:19–30:1 (Porat (Google) Dep.); Tr. 10087:12–10088:1 (Murphy (Def. Expert)) (identifying no reason to disagree). Continue Reading Here. Continue Reading Here . Here About HackerNoon Legal PDF Series: We bring you the most important technical and insightful public domain court case filings. This court case retrieved on April 30, 2024, storage.courtlistener is part of the public domain. The court-created documents are works of the federal government, and under copyright law, are automatically placed in the public domain and may be shared without legal restriction. About HackerNoon Legal PDF Series: We bring you the most important technical and insightful public domain court case filings. This court case retrieved on April 30, 2024, storage.courtlistener is part of the public domain. The court-created documents are works of the federal government, and under copyright law, are automatically placed in the public domain and may be shared without legal restriction. storage.courtlistener [5] UPX5188 (Sony DA (2005)); UPX5189 (Sony DA (2005 amend.)); UPX5190 (Sony DA (2006 amend.)); UPX5191 (Sony DA (2007 amend.)); UPX5192 (Sony DA (2008 amend.)); UPX5208 (Sony DA (2008)); UPX5193 (Sony DA (2008 amend.)); UPX5194 (Sony DA (2009 amend.)); UPX5167 (Sony MADA (2009)); UPX5168 (Sony MADA (Apr. 2011)); UPX5209 (Sony MADA (Oct. 2011)); UPX5169 (Sony MADA (2014)); UPX5195 (Sony RSA (2014)); UPX5170 (Sony MADA (Aug. 2016 amend.)); UPX5196 (Sony RSA (Aug. 2016 amend.)); UPX5197 (Sony RSA (Sept. 2016 amend.)); UPX5198 (Sony RSA (Dec. 2016 amend.)); UPX5171 (Sony MADA (Jan. 2017 amend.)); UPX5199 (Sony RSA (Jan. 2017 amend.)); UPX5172 (Sony MADA (Mar. 2017 amend.)); UPX5200 (Sony RSA (Mar. 2017 amend.)); UPX5201 (Sony RSA (June 2017 amend.)); UPX5173 (Sony MADA (July 2017 amend.)); UPX5174 (Sony MADA (Sept. 2017 amend.)); UPX5202 (Sony RSA (Sept. 2017 amend.)); UPX5203 (Sony MADA (2017)); UPX5176 (Sony MADA (June 2018amend.)); UPX5204 (Sony MADA (Nov. 1 2019 amend.)); UPX5177 (Sony MADA (Nov. 8 2019 amend.)); UPX5205 (Sony RSA (2019 amend.)); UPX5179 (Sony MADA (Dec. 2019 amend.)); UPX5206 (Sony MADA (2020 amend.)); UPX5207 (Sony RSA (2020)). [6] Google also enters Android Compatibility Commitments (ACCs) or Antifragmentation Agreements (AFAs) with Android OEMs, which prevent OEMs from distributing Android devices (with limited exceptions) that do not comply with a set of technical requirements. These requirements do not address search defaults. E.g., DX0870 (Samsung AFA (2019)); DX0861 (Motorola ACC (2018)). [7] JX0007 (Samsung MADA (2009)); JX0013 (Samsung MADA (2011)); JX0025 (Samsung MADA (2014)); JX0037 (Samsung MADA (2017)); UPX5514 at -297 (§ 2) (Samsung MADA (2020 amend.)) (extending JX0037 to Dec. 31, 2021); JX0008 (Motorola MADA (2009)); UPX5404 (Motorola MADA (2012)); JX0023 (Motorola MADA (2014)); JX0049 (Motorola MADA (2018)); JX0099 at -997 (§ 2.2) (Motorola MADA (2020 amend.)) (extending JX0049 to at least Jan. 1, 2021, and to Jan. 1, 2022, if neither party provided 60 days’ notice); UPX5338 (LG MADA (2009)); UPX5339 (LG MADA (2011)); UPX5340 (LG MADA (2013)); UPX5352 (LG MADA (2017)). [8] E.g., JX0015 (AT&T RSA (2011)); JX0021 (AT&T RSA (2013)); JX0050 (AT&T RSA (2018)); JX0091 (AT&T RSA (2021)); JX0010 (Verizon RSA (2009)); JX0093 (Verizon RSA (2021)); JX0011 (T-Mobile RSA (2009)); JX0022 (T-Mobile RSA (2013)); JX0047 (T-Mobile RSA (2017)); JX0095 (T-Mobile RSA (2021)); UPX5533 (Sprint RSA (2008)); UPX5553 (Sprint RSA (2013)); UPX5536 (Sprint RSA (2017)); JX0014 (Samsung RSA (2011)); JX0041 (Samsung RSA (2017)); JX0071 (Samsung RSA (2020)); JX0003 (Motorola RSA (2005)); JX0039 (Motorola RSA (2017)); JX0062 (Motorola MIA (2020)); UPX5375 (LG RSA (2007)); UPX5363 (LG RSA (2013)); UPX5364 (LG RSA (2014)); UPX5368 (LG RSA (2017)); UPX5392 (LG MIA (2020)). [9] E.g., JX0091 at -751–52 (§ 4), -765 (Attachment A), -766–68 (Attachment B) (AT&T RSA (2021)); JX0093 at -499–501 (§ 5), -515 (Attachment A), -516 (Attachment B), -517–18 (Attachment C) (Verizon RSA (2021)); JX0095 at -696–99 (§ 4), -712–13 (Attachment A) (TMobile RSA (2021)); JX0071 at -401–03 (§§ 4, 5), -416–18 (Attachment A), -419–20 (Attachment B-1), -422–424 (Attachments C-1 & C-2) (Samsung RSA (2020)); JX0062 at -186–87 (§ 5), -197–200 (Attachment A) (Motorola RSA (2020)). [10] E.g., JX0071 at -394 (§ 1.5) (Samsung RSA (2020)) (“‘Alternative Search Service’ means any web or on-device search service (including on-device search that incorporates multiple vertical search functionalities) that offers functionality that is similar to Google Search”); JX0091 at -743 (§ 1.5) (AT&T RSA (2021)) (“‘Alternative Search Service’ means any application, product, or service, other than Google Search, which, in response to queries, delivers search results consisting of (a) Internet content or (b) content from multiple applications on a Device that are owned by entities that are not Affiliates of one another, in each case of (a) and (b), in a manner that is substantially similar to Google Search.”); JX0093 at -489 (§ 1.5) (Verizon RSA (2021)) (“‘Alternative Search Service’ means (a) any web search or (b) any on-device search service that in response to queries incorporates multiple vertical search functionalities, and that, in each case of (a) and (b), offers functionality that is substantially similar to Google Search (as determined by Google in its reasonable discretion), is not owned by Google or its Affiliates, and is not among the Google Applications.”); JX0095 at -689 (§ 1.3) (T-Mobile RSA (2021)) (“‘Alternative Search Service’ means any search service that is substantially similar to Google Search (as determined by Google in its reasonable discretion)”); JX0062 at -177 (§ 1.7) (Motorola MIA (2020)) (“‘Alternative Search Service’ means any search service that is substantially similar to Google Search (as determined by Google in its sole discretion)”). [11] UPX5399 is a duplicate of JX0062. UPX5399 was produced by Motorola and JX0062 by Google. Both are in evidence. [12] UPX5132 (Opera DA (2013 amend.)); UPX5133 at -727–28 (§ 2) (Opera DA (2013 amend.)); UPX5134 (Opera DA (2013 amend.)); UPX5135 (Opera DA (2013 amend.)); UPX5136 (Opera DA (2013 amend.)); UPX5137 (Opera DA (2014 amend.)); UPX5138 (Opera DA (2014 amend.)); UPX5139 (Opera DA (2015 amend.)); UPX5140 (Opera DA (2015 amend.)); UPX5141 at -568 (§ 2) (Opera DA (2017 amend.)); UPX5142 (Opera DA (2018 amend.)); UPX5143 (Opera DA (2019 amend.)); UPX5144 (Opera DA (2020 amend.)); UPX5145 (Opera DA (2020 amend.)); UPX5146 at -384 (§ 2) (Opera DA (2021 amend.)).