The Google Play Store: A Superior Product or Monopoly?

“App stores” are a type of digital distribution platform for software called applications that allows mobile device users to bridge the gap between basic hardware and a multifaceted “smart” device. They enable mobile device users to download software that is not included with the mobile device when purchased. Many consumers consider these apps to be what give smart devices value. The myriad of apps that run on the device and are compatible with the device’s operating system is what makes it “smart.” American consumers spend more than $32 billion per year purchasing apps and digital content within apps with the most popular applications of 2021 including TikTok, Instagram, Facebook, Cash App, and Zoom.

Recently, a coalition of state attorneys general launched an antitrust lawsuit against Google alleging that Google unlawfully maintains a monopoly in the market for Android app distribution. The complaint alleges five categories of anti-competitive conduct through which Google has obstructed competition in Android app distribution and in-app purchases. Plaintiffs contend that Google’s alleged anticompetitive conduct harms consumers and app developers.

This blog analyzes the plaintiffs’ allegation that Google has unlawfully maintained monopoly power in the market for distributing apps on Android by deterring consumers from directly downloading and installing apps or app stores that might compete with the Google Play Store (“Google Play”).

Is Google Play’s market share akin to a violation of antitrust law or is it a result of Google’s commitment to innovation, vigorous competition, and successful business model? Section 2 of the Sherman Act makes it unlawful for any person to “monopolize, or attempt to monopolize, or combine or conspire with other person or persons, to monopolize any part of trade or commerce among the several States, or with foreign nations.” Monopolization requires (1) monopoly power and (2) the willful acquisition or maintenance of that power as distinguished from growth or development as a consequence of a superior product, business acumen, or historic accident.

Google Play is a digital distribution service operated by Google and distributes over 90% of Android apps in the United States. Other digital distribution services, compatible with the Android operating system, have no more than a 5% market share. Other digital distribution services available for Android users to purchase apps include the Samsung Galaxy Store, Amazon Appstore, Huawei App Gallery, OPPO App Market, and the VIVO App Store.

Google owns the Android Operating System, which is used in 99% of American mobile devices that run a licensable mobile operating system. The Android Operating System leaves open the technical possibility for Android customers to download apps without using the Play Store. The complaint alleges that Google, through the Android Operating System, excludes competition by making sideloading, the process of installing an app from a third-party source, “unnecessarily cumbersome and impractical.”

Plaintiff complains that adding security warnings and requiring the user to actively opt-in to download the application unreasonably deters consumers from downloading competing apps. I disagree. The “unknown app” warnings and opt-in requirements help preserve the integrity of the Android user experience. Google Play is praised for its “built-in mechanisms to screen every app for malware” while third-party app stores have a reputation of being difficult to vet and validate. The unknown app messaging and opt-in requirements are equitable to “exit pop-ups.” Many websites and apps have incorporated exit pop-ups that notify the user that the website they are trying to access is not under the control of the developer of the previous website and require users to affirmatively accept the risk. Android’s warnings and opt-in requirements notify the user that downloaded third-party app stores have not been screened for malicious components as other apps that are downloaded from Google Play.

Plaintiffs argue that Google has employed anticompetitive tactics to diminish competition in Android app distribution which ensures that consumers and application developers have no reasonable choice but to distribute their apps through Google Play. However, the Android Operating System is far more open than other leading operating systems. Apple’s mobile operating system, Apple iOS, does not allow for third-party app distributors. Moreover, Apple users must download all applications through the Apple App Store. Unlike Apple iOS, Android consumers are able to install additional app stores if they choose. The complaint also limits the definition of the app marketplace to Android devices only. This ignores the competition that Google faces from other platforms like Apple. In 2020, Apple’s App store earned $73.3 billion in revenue while Google Play earned $38.6 billion.

Pursuant to Section 2 of the Sherman Act, monopolization cannot be acquired by improper means. Growth due to a superior product and business acumen does not violate Section 2 of the Sherman Act. Google has a reputation of being a formidable competitor in the technology industry and maintains its competitive advantage by placing innovative products in the market. Google Play allows its customers to choose from 3.4 million apps, the largest number of apps available in any app store. Google Play empowers users to rate and review applications to build community and as part of its quality control methods. Moreover, Google Play Protect, Google Plays’ security system, ensures that Android devices are protected while downloading apps, browsing the web, and sharing data. Should consumers want the benefit of installing a competing digital distribution program, they may do so after actively accepting the risk of installing an application that has not been vetted by Google’s privacy screenings. The openness of the Google Play Store suggests that the market share it commands is a result of superior product and business acumen, not exclusionary conduct.

Alexus Acree is a second-year law student at Wake Forest University School of Law. She holds a Bachelor of Business Administration in Marketing from Howard University. Upon graduation, she plans to practice corporate law.