Case 1:20-cv-03010-APM Document 451 Filed 01/11/23 Page 1 of 55
`Case 1:20-cv-03010-APM Document 451 Filed 01/11/23 Page 1 of 55
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE DISTRICT OF COLUMBIA
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`
`United States of America, ef a/.,
`
`
`
`v.
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`Google LLC,
`
`State of Colorado,ef ai.,
`
`v.
`
`Google LLC,
`
`Case No. 1:20-cv-03010-APM
`
`HON. AMIT P. MEHTA
`
`Case No. 1:20-cv-03715-APM
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`HON. AMIT P. MEHTA
`
`Plaintiffs,
`
`Defendant.
`
`Plaintiffs,
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`Defendant.
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`DEFENDANT’S MEMORANDUMOF POINTS AND AUTHORITIES
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`IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
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`Case 1:20-cv-03010-APM Document 451 Filed 01/11/23 Page 2 of 55
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`TABLE OF CONTENTS
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`B. 
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`C. 
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`I. 
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`II. 
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`III. 
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`2. 
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`d. 
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`b. 
`c. 
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`FACTUAL BACKGROUND ..............................................................................................4 
`A. 
`Plaintiffs’ Claims .....................................................................................................4 
`1. 
`Plaintiffs’ Claims Regarding Browser Default Agreements ........................5 
`2. 
`Plaintiffs’ Claims Regarding Android Agreements .....................................5 
`3. 
`Plaintiffs’ Other Miscellaneous Assertions .................................................7 
`Google’s Browser Default Agreements ...................................................................7 
`1. 
`An Overview of the Apple Agreements Challenged by Plaintiffs ...............8 
`a. 
`Apple’s Design for the Safari Browser ............................................8 
`b. 
`The 2005 Agreement Between Google and Apple ..........................8 
`c. 
`Apple’s Evaluation of Other Search Engines and Decisions
`to Set Google as the Default in Safari ............................................10 
`Apple’s Promotion of Google’s Rivals in Safari and
`Elsewhere .......................................................................................12 
`An Overview of the Mozilla Agreements Challenged by Plaintiffs ..........14 
`Mozilla’s Design for the Firefox Browser and 2004
`a. 
`Agreement with Google .................................................................14 
`Mozilla’s Decision to Set Yahoo as the Default in Firefox ...........15 
`Mozilla’s 2017 Agreement with Google and Ongoing
`Evaluation of Search Partnerships .................................................16 
`Mozilla’s Promotion of Google’s Rivals .......................................17 
`d. 
`Google’s Other Browser Default Agreements ...........................................18 
`3. 
`Google’s Android Agreements ..............................................................................19 
`Android Compatibility Commitment (ACC) / Anti-Fragmentation
`1. 
`Agreement (AFA) ......................................................................................19 
`Mobile Application Distribution Agreement (MADA) .............................20 
`2. 
`Revenue Sharing Agreements (RSAs) .......................................................22 
`3. 
`LEGAL STANDARD ........................................................................................................23 
`A. 
`Monopolization under Section 2 of the Sherman Act ............................................23 
`B. 
`Summary Judgment under Federal Rule of Civil Procedure 56 ............................25 
`ARGUMENT .....................................................................................................................25 
`A. 
`The Browser Agreements Do Not Constitute Anticompetitive Conduct ...............26 
`Google’s Agreements with Browser Developers Are Not
`1. 
`“Exclusive” or “De Facto Exclusive” ........................................................28 
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`i
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`Case 1:20-cv-03010-APM Document 451 Filed 01/11/23 Page 3 of 55
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`B. 
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`C. 
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`D. 
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`Plaintiffs Offer No Evidence That Apple’s and Mozilla’s Design
`Decisions Can or Should Be Altered by This Court ..................................31 
`Google’s Agreements with Apple, Mozilla, and Other Browser
`Companies Are the Result of Lawful Customer-Instigated
`“Competition for the Contract” ..................................................................35 
`Google’s Agreements with Android Device Manufacturers and Wireless
`Carriers Do Not Violate Section 2 of the Sherman Act .........................................39 
`The Agreements Relating to Android Devices Do Not “Foreclose a
`1. 
`Substantial Share” of Any Alleged Market ...............................................41 
`There Is No Evidence of an Anticompetitive Effect from Android
`Compatibility Commitments or Anti-Fragmentation Agreements ........................43 
`The Other Conduct Alleged by Plaintiffs Does Not Violate Section 2 of
`the Sherman Act .....................................................................................................47 
`There Is No Evidence of an Anticompetitive Effect from
`1. 
`Agreements Relating to Google Assistant or Internet-of-Things
`Devices .......................................................................................................47 
`Google’s Evolution of a Limited Number of Early Open-Source
`Applications Is Not Exclusionary ..............................................................48 
`CONCLUSION ..................................................................................................................50 
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`2. 
`
`3. 
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`2. 
`
`IV. 
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`ii
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`Case 1:20-cv-03010-APM Document 451 Filed 01/11/23 Page 4 of 55
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`TABLE OF AUTHORITIES
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`FEDERAL CASES
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`Allied Orthopedic Appliances Inc. v. Tyco Health Care Grp., 592 F.3d 991 (9th Cir. 2010) ...... 28
`Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................. 25
`Balaklaw v. Lovell, 14 F.3d 793 (2d Cir. 1994) ............................................................................ 36
`Barry Wright Corp. v. ITT Grinnell Corp., 724 F.2d 227 (1st Cir. 1983) .............................. 30, 38
`Bepco, Inc. v. Allied-Signal, Inc., 106 F. Supp. 2d 814 (M.D.N.C. 2000) ................................... 43
`Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ............................................................................. 25
`FTC v. Qualcomm Inc., 969 F.3d 974 (9th Cir. 2020) .................................................................. 28
`Greene v. Dalton, 164 F.3d 671 (D.C. Cir. 1999) ........................................................................ 45
`In re EpiPen Mktg., Sales Pracs. & Antitrust Litig., 44 F.4th 959 (10th Cir. 2022) ........ 26, 37, 38
`Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290 (2d Cir. 2008) ..................... 25
`Menasha Corp. v. News Am. Mktg. In-Store, Inc., 354 F.3d 661 (7th Cir. 2004) .................. 27, 35
`Minn. Mining & Mfg. Co. v. Appleton Papers, Inc., 35 F. Supp. 2d 1138 (D. Minn. 1999) ........ 42
`NicSand, Inc. v. 3M Co., 507 F.3d 442 (6th Cir. 2007) (en banc) ................................................ 34
`Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57 (3d Cir. 2010) ................... 25, 36
`Retractable Techs., Inc. v. Becton Dickinson & Co., 842 F.3d 888 (5th Cir. 2016) ................... 24
`Simon & Simon, P.C. v. Align Tech., Inc., 533 F. Supp. 3d 904 (N.D. Cal. 2021)....................... 28
`Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447 (1993) ........................................................... 24
`Stearns Airport Equip. Co. v. FMC Corp., 170 F.3d 518 (5th Cir. 1999) ............................. 34, 37
`Sterling Merchandising, Inc. v. Nestle, S.A., 656 F.3d 112 (1st Cir. 2011) ........................ 3, 40, 41
`United States v. Grinnell Corp., 384 U.S. 563 (1966) ............................................................ 23, 30
`United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) (en banc) (per curiam) ...... passim
`United States v. Studiengesellschaft Kohle, m.b.H., 670 F.2d 1122 (D.C. Cir. 1981) .................. 49
`Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004) .............. 50
`ZF Meritor, LLC v. Eaton Corp., 696 F.3d 254 (3d Cir. 2012) .............................................. 28, 30
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`OTHER AUTHORITIES
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`15 U.S.C. § 2 ................................................................................................................................. 23
`Fed. R. Civ. P. 56 .......................................................................................................................... 25
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`Case 1:20-cv-03010-APM Document 451 Filed 01/11/23 Page 5 of 55
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`The DOJ Plaintiffs’ case centers on two categories of contracts that they seek to condemn
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`under Section 2 of the Sherman Act. The first concerns decisions by web browser developers—
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`particularly Apple and Mozilla—to set Google as the default search engine in their browsers.
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`Although these contracts have been amended or renewed on numerous occasions, the framework
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`has remained largely unchanged since the 2000s—when the vast majority of Internet users
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`searched the web on Microsoft Windows computers pre-loaded with Microsoft’s search engine,
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`and Apple had yet to introduce the iPhone. The second consists of agreements, also first introduced
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`many years ago, between Google and companies that manufacture and/or sell Android mobile
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`devices that provide consumers with innovative and competitive alternatives to Apple devices.
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`Plaintiffs must clear several legal hurdles to establish that these agreements violate Section
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`2, including proving that Google possesses monopoly power in a properly defined market. United
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`States v. Microsoft Corp., 253 F.3d 34, 51 (D.C. Cir. 2001) (en banc) (per curiam). The Court
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`need not decide that issue to enter summary judgment, however, because the challenged contracts
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`do not comprise “exclusionary conduct” and did not cause “the requisite anticompetitive effect.”
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`Id. at 58-59. Rather, the agreements that Plaintiffs attack are important components of the
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`extraordinary competition that has unleashed innovation and provided users more choices than
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`ever to search the Internet. And unlike in Microsoft, where the Court invalidated conduct that
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`forced Microsoft’s inferior Internet Explorer browser upon third parties, Google Search is today—
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`and has been throughout the relevant time period—the highest quality search engine in the U.S.,
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`preferred by every third party subject to the challenged agreements.
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`The Browser Agreements. For nearly two decades, companies that develop web browsers
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`have designed and implemented an integrated search box that routes user queries to a default search
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`engine. A number of these companies, including Apple and Mozilla, have selected Google as the
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`Case 1:20-cv-03010-APM Document 451 Filed 01/11/23 Page 6 of 55
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`default search engine in their browsers as reflected in revenue sharing agreements with Google.
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`Plaintiffs contend that these browser agreements are “exclusionary” because they purportedly
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`confer “de facto exclusivity” on Google, but that assertion cannot be reconciled with antitrust law
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`or the factual record.
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`Apple and Mozilla can—and do—promote other search engines.
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` See Section III.A.1. That fact suffices to defeat Plaintiffs’ “de facto exclusive” contention.
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`But other undisputed facts reinforce the absence of a Section 2 violation. Apple and Mozilla (and
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`virtually every other browser developer) have chosen to design their browsers with a single default
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`search engine upon first use which can be changed by the user. A browser provider’s selection of
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`a single default search engine cannot “exclude” its rivals in any legally cognizable sense. See
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`Section III.A.2. Finally, even if these browser agreements could be characterized as “de facto
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`exclusive,” summary judgment would still be warranted where undisputed facts show that they
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`result from the kind of “competition on the merits” that antitrust law promotes. Microsoft, 253
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`F.3d at 62, 65. Whenever Apple and Mozilla have entered a new or amended agreement to set
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`Google as the default, they have done so based on their independent conclusions that doing so
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`provides the best experience for their customers after evaluating other rival search engines. See
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`Section III.A.3. In short, Google’s browser default agreements are the product of “legitimate
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`competition,” not “illicit exclusion.” Microsoft, 253 F.3d at 58.
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`Notwithstanding Google’s success competing on the terms and conditions established by
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`browser developers like Apple and Mozilla, Plaintiffs apparently believe that the Court should
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`require Google to abstain from competing for the single pre-set default that Apple, Mozilla, and
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`others have designed—even though those companies and their customers prefer Google—in the
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`Case 1:20-cv-03010-APM Document 451 Filed 01/11/23 Page 7 of 55
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`speculative hope that doing so will boost future competition from rivals with inferior products.
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`Requiring Google not to compete vigorously—or requiring browser developers to alter their
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`product designs and provide a worse experience for their customers—would turn competition law
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`on its head.
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`The Android Agreements. Plaintiffs’ challenges to Google’s Android agreements also
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`present no triable issue under Section 2. Plaintiffs contend that Google has entered agreements
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`with certain device manufacturers and mobile phone carriers to make Google the “exclusive”
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`preinstalled search engine on many Android smartphones and other devices. This characterization
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`fails to consider all the ways in which rivals can compete for promotion on Android devices, as
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`well as the ways in which consumers can access other search engines on those same devices. But
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`the Court need not address that issue because the undisputed facts demonstrate that the Android
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`agreements do not have “the requisite anticompetitive effect.” Microsoft, 253 F.3d at 58–59.
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`In evaluating purported “exclusive dealing arrangements” under Section 2, courts have
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`concluded that “foreclosure levels are unlikely to be of concern where they are less than 30 or 40
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`percent, and while high numbers do not guarantee success for an antitrust claim, low numbers
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`make dismissal easy.” Sterling Merch., Inc. v. Nestle, S.A., 656 F.3d 112, 123-24 (1st Cir. 2011)
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`(quotation marks omitted). In this case, an analysis performed by Plaintiffs’ own expert places the
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`degree of alleged foreclosure from the Android agreements at approximately 1 percent—an
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`insubstantial figure by any measure. See Section III.B.
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`In addition to challenging the Android agreements under an “exclusive dealing”
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`framework, Plaintiffs contend that Google’s agreements to maintain baseline compatibility on
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`Android mobile devices (which were implemented to attract developers to Android and enable
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`Android to compete against other mobile devices, including Apple’s iPhone) block “pathways”
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`for other search engines or give Google discretion to block search rivals. No evidence supports
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`these speculative contentions. See Section III.C. Plaintiffs have seemingly abandoned or failed to
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`support other theories concerning promotion of Google’s virtual assistant and decisions about
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`which Android features to develop on an open-source basis, and no DOJ expert witness offers any
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`opinion that they impacted search engine competition at all. See Section III.D.
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`I.
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`FACTUAL BACKGROUND
`A.
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`Plaintiffs’ Claims
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`Plaintiffs assert that “Google has unlawfully maintained its monopolies by implementing
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`and enforcing a series of exclusionary agreements with distributors over at least the last decade.”
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`DOJ Pls.’ Am. Compl. ¶ 112.1 The challenged agreements fall into one of two categories. The
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`first consists of agreements with web browsers, particularly Apple’s Safari and Mozilla’s Firefox,
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`in which those third parties have selected Google to be the default search engine and Google agrees
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`to pay them a share of the search advertising revenue generated from searches on their browsers.
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`The second consists of agreements with manufacturers of Android mobile devices (e.g., Samsung)
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`and agreements with phone carriers that sell those devices (e.g., Verizon) regarding, among other
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`things, the pre-loading or exclusive promotion of Google Search on those devices. DOJ Plaintiffs
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`do not allege that Google engaged in any unlawful conduct in connection with any search
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`advertising market; they instead claim that the anticompetitive conduct that maintains a monopoly
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`in the general search services market also adversely impacts search advertising.
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`1 The plaintiffs in State of Colorado, et al. v. Google LLC, No. 1:20-cv-03715-APM (the “Colorado
`Plaintiffs”) incorporate by reference most of the complaint and many of the discovery responses
`of the plaintiffs in United States, et al. v. Google LLC, No. 1:20-cv-03715-APM (the “DOJ
`Plaintiffs”). See Colo. Pls.’ Compl. ¶ 58. The term “Plaintiffs” in this brief refers to both the DOJ
`Plaintiffs and the Colorado Plaintiffs, and all of the arguments apply to both cases.
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`Case 1:20-cv-03010-APM Document 451 Filed 01/11/23 Page 9 of 55
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`1.
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`Plaintiffs’ Claims Regarding Browser Default Agreements
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`Plaintiffs contend that Google has harmed competition by entering revenue share
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`agreements with web browser developers that provide that Google will be the pre-set default
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`general search engine on their browsers. According to Plaintiffs, even if “users can change the
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`default” search engine in a browser, “they rarely do,” which “leaves the preset default general
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`search engine with de facto exclusivity.” DOJ Pls.’ Am. Compl. ¶ 3. The browser agreements
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`allegedly “harm competition,” according to Plaintiffs, “by foreclosing rivals from these efficient
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`means of distribution.” Ex. 81 (DOJ Pls.’ 6th Supp. Resps. to Google’s 1st Interrogs.) at 15; Ex.
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`82 (Colo. Pls.’ 4th Supp. Resps. to Google’s 1st Interrogs.) at 5. The browser agreements are
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`addressed in further detail in Sections I.B and III.A.
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`2.
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`Plaintiffs’ Claims Regarding Android Agreements
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`Plaintiffs also contend that Google has harmed competition through three sets of
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`agreements with companies that manufacture and/or sell Android devices. Android is a mobile
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`operating system, licensed open source, in which Google has invested billions of dollars since its
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`release in the fall of 2008. SMF ¶¶ 194-96, 389.2 Android is the second most widely used mobile
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`phone operating system in the U.S., behind Apple’s iOS. SMF ¶ 198.
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`The first Android agreement challenged by Plaintiffs is the Android Compatibility
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`Commitment (ACC), which succeeded the Anti-Fragmentation Agreement (AFA). Google has
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`entered ACCs or AFAs with original equipment manufacturers (OEMs), such as Samsung
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` since the Android operating system was first launched in order to establish baseline
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`quality, compatibility, and security standards for Android devices. SMF ¶¶ 261-64. A device
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`2 All citations to “SMF” refer to Google’s concurrently filed Statement of Material Facts as to
`Which There Is No Genuine Issue in Support of Its Motion for Summary Judgment.
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`maker that seeks to license Google’s proprietary apps commits that all Android devices it markets
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`will meet these standards, absent an exemption. SMF ¶¶ 265, 276. Plaintiffs contend these
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`agreements “harm competition by inhibiting the growth of alternative Android-based operating
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`systems, which could serve as pathways for distribution of rival [search] providers” or by giving
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`Google discretion to block devices pre-loaded with search rivals. Ex. 81 at 14; Ex. 82 at 5.
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`The second Android agreement at issue is the Mobile Application Distribution Agreement
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`(MADA). This non-exclusive agreement, entered into by numerous OEMs over the course of
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`many years, provides a zero-royalty license to a suite of popular Google applications, services, and
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`application programming interfaces (APIs)—including the Google Play Store, Google Maps, the
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`Chrome browser, and the Google Search App—for OEMs to pre-load on their devices. SMF
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`¶ 212-14. Plaintiffs allege, among other things, that the MADA “harms competition by reducing
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`the likelihood that users install alternative search services.” Ex. 81 at 14; Ex. 82 at 5.
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`Third, Plaintiffs challenge a set of agreements known generally as Revenue Share
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`Agreements (RSAs) that also have been offered by Google for many years. These agreements
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`allow certain OEMs, such as Samsung, as well as certain wireless carriers, including
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`T-Mobile, an opportunity to earn revenue if they choose to exclusively promote Google Search on
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`Android devices and provide other valuable commitments, such as agreeing to regular security and
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`operating system updates that enhance device security and functionality. SMF ¶ 222.3 According
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`to Plaintiffs, RSAs include provisions that “harm competition by foreclosing rivals from these
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`efficient means of distribution” and “by restricting the ability of rivals to compete for these
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`3 Although these agreements are generally referred to as RSAs by Google and its partners, the titles
`of the agreements have varied somewhat over time and among the different Android OEMs and
`carriers. For example, in some cases, the agreements are referred to as Mobile Incentive
`Agreements or MIAs.
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`Case 1:20-cv-03010-APM Document 451 Filed 01/11/23 Page 11 of 55
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`efficient means of distribution.” Ex. 81 at 14-15; Ex. 82 at 5. The Android agreements are
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`addressed in further detail in Sections I.C, III.B, and III.C.
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`3.
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`Plaintiffs’ Other Miscellaneous Assertions
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`Plaintiffs have also indicated that they intend to premise liability on two other forms of
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`conduct. First, Plaintiffs appear to challenge contracts promoting Google Search on Internet-of-
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`Things (IoT) devices, such as smart speakers and TVs. They originally made allegations that these
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`agreements purportedly “harm competition by foreclosing [search engine] rivals from these
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`efficient means of distribution.” Ex. 81 at 15; Ex. 82 at 5. Second, Plaintiffs—in a contention
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`made nowhere in their Complaints—purport to challenge a “practice of making important features
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`and functionality” available only as part of proprietary Google applications that run on Android
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`compatible devices, and “of removing important features and functionality from [the] open-source
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`Android” operating system. Ex. 81 at 16-17; Ex. 82 at 6. In other words, Plaintiffs appear to argue
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`that Google has a duty to develop certain proprietary Google applications only on an open-source
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`basis. These contentions are addressed in further detail in Section III.D.
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`B.
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`Google’s Browser Default Agreements
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`Although Google’s agreements with browser developers are individually negotiated and
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`differ in some respects, they have three important commonalities. First, the agreements have never
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`prevented companies such as Apple and Mozilla from promoting other search engines in their
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`browsers, and those companies have in fact agreed to promote Bing, DuckDuckGo, and other
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`search services
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` E.g., SMF ¶¶ 61-96, 157-75. Second, Apple and Mozilla, not Google, designed
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`their browsers to each include an integrated search box with a default search engine upon first use,
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`and they continue to believe that design enables the best user experience. E.g., SMF ¶¶ 3-7, 100-
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`04. Third, Apple and Mozilla decided to set Google as the default search engine in their browsers
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`because they believe it provides the highest quality experience for their customers. E.g., SMF
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`¶¶ 8-12, 107-08, 154-56.
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`1.
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`An Overview of the Apple Agreements Challenged by Plaintiffs
`a.
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`Apple’s Design for the Safari Browser
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`Apple unveiled the first version of its Safari web browser approximately 20 years ago, in
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`January 2003, for its Mac computers. SMF ¶ 1. Apple’s design for Safari included a dedicated
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`“search box” built in to the browser’s interface. SMF ¶ 3. A query entered in the box would be
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`routed directly to a search engine, without the need for the user to navigate to a search engine’s
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`website or download a toolbar extension to the browser. Id. Apple believed the feature would
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`make Safari more appealing to Apple’s customers. SMF ¶ 4.
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`As it developed Safari, Apple decided on a design that would route queries entered in the
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`search box to a single provider. SMF ¶¶ 5-6. It determined that Google Search provided the
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`highest-quality results, and obtained a license from Google to allow Safari users “to send web
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`queries from a search box in [Safari] to www.google.com, and to receive results pages from
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`Google.” SMF ¶¶ 9, 13. When Apple debuted the browser in January 2003, it boasted in its press
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`release that “Safari’s innovative features include Google search capabilities integrated directly into
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`the toolbar.” Ex. 1 at 1. An Apple executive explained that the idea “was to make it very easy for
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`customers,” so Apple “picked the best search engine,” and “when a customer uses it, it just works.”
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`Ex. 2 (Cue (Apple) Tr.) at 124:16-22; see SMF ¶¶ 3-7.
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`b.
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`The 2005 Agreement Between Google and Apple
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`In 2005,
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`defined the term
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` SMF ¶¶ 14-15. The agreement
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` SMF ¶ 16. Although the terminology has changed
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`somewhat as the parties renegotiated the agreement over the years, Google’s contracts with Apple
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`have expressly recognized that a Safari user may select a different search engine for use in Safari’s
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`integrated search box. E.g., SMF ¶¶ 16, 45. Neither the 2005 contract nor any subsequent
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`agreement has specified the steps that a user must take in order to set a different default search
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`engine. SMF ¶¶ 76-77. The agreements leave it to Apple to design the menus and interfaces that
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`enable each user to change the default search engine that receives queries entered in the integrated
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`search box.4 Id. They also permit Apple to promote search rivals. See Section I.B.1.d.
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`Under the 2005 agreement,
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` SMF ¶ 14. In other words,
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`4 While it has long been possible to easily change the default in Safari, that is not the case with
`every web browser. For example, Microsoft distributes a version of its Edge browser in which the
`only integrated search engine is Microsoft’s Bing. SMF ¶ 88. Similarly, DuckDuckGo is the only
`search engine integrated with DuckDuckGo’s Privacy Browser. SMF ¶¶ 87, 89. By contrast,
`Google’s Chrome browser and Apple’s Safari browser make switching default search engines easy
`by providing pre-populated drop-down menus with multiple alternative search providers to choose
`from. E.g., SMF ¶¶ 61-63, 233-34.
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`Case 1:20-cv-03010-APM Document 451 Filed 01/11/23 Page 14 of 55
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`When Google and Apple entered their first revenue share agreement in 2005, the Safari
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`browser accounted for an estimated 1.3% of worldwide browser usage, and so only a miniscule
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`fraction of search queries were entered through Safari. SMF ¶ 18. Microsoft’s Internet Explorer—
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`preinstalled on Microsoft Windows computers—was far and away the most widely used browser
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`at the time, with an estimated worldwide share on desktop computers in excess of 80%. SMF ¶ 19.
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`It would be another two years until Apple introduced the first iPhone (in 2007), and longer still
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`until it sold the first iPad (in 2010). SMF ¶¶ 20, 31.
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`While Apple has decided to make Safari the only preinstalled web browser on its devices—
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`including Mac computers, iPhones, and iPads—that is not required by any agreement between
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`Apple and Google. SMF ¶¶ 2, 91. Since 2012, Google has marketed its Chrome browser to Apple
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`mobile device users through the Apple App Store, alongside other browsers such as Microsoft’s
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`Edge (in which Bing is the default search engine) and DuckDuckGo’s Privacy Browser (in which
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`DuckDuckGo is the default); Mac computer users also may download other browsers, including
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`Chrome, directly. SMF ¶¶ 86-87, 90.
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`c.
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`Apple’s Evaluation of Other Search Engines and Decisions to
`Set Google as the Default in Safari
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`Apple determines which search engine to set as the default in Safari based on its assessment
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`of which option will provide the best results and therefore contribute to the best user experience
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`on new Apple devices. SMF ¶ 8. Google and Apple have amended or extended their agreement
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`, and at each juncture Apple has concluded that Google Search offers the
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`best default search experience for Apple’s customers in the United States. SMF ¶¶ 9-11.
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`Apple regularly evaluates alternatives to Google Search. SMF ¶ 10.
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`a new agreement that maintained Google as the default search engine in Safari. SMF ¶ 44.
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`Apple’s Promotion of Google’s Rivals in Safari and Elsewhere
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`Apple has agreed to set Google as the default search service that responds to queries entered
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`in Safari unless the user selects a different search engine, but Google and Apple have never entered
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`an agreement that restricts Apple from promoting other search engines in Safari, elsewhere on
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`Apple devices, and through its App Store. E.g., SMF ¶¶ 61-62, 79-81, 92-93.
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`Promoting other search engines in the Safari browser. Apple has always been allowed to
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`promote other search engines in Safari
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`into Safari in the U.S.: Yahoo, Bing, DuckDuckGo, and Ecosia. SMF ¶ 63.
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`I 2:00,ep
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`sets other search engines, including Bing and Yahoo,as default “Favorites” or bookmarks in
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`Safari. SMF §§ 79-80. When a new Apple user opens Safari for the first time, the browser interface
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`includesclickable icons for these rival search services, as shown in the image on the right from an
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`iPhone. SMF § 40.
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`< Safari
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`Search Engine
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`Favorites
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`¢ovs6c®
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`Apple
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`Privacy Report
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`In the last seven days, Safari has
`prevented 0 trackers from profiling
`you and hidden yourIP address from
`knowntrackers.
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`oO
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`ReadingList
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`Edit
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`Promoting other search engines elsewhere on Apple devices. Apple has always been
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`allowed to promote rival search engines elsewhere on its devices or digital properties, and it has
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`done so for more than a decade. E.g., SMF §§ 81-82, 85-87. For example, other search engines
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`can and do distribute their search apps, search widgets, and browsers through the Apple App Store
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`(and through other channels for download onto Mac computers), and they can and do pay Apple
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`to advertise in the App Store.
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`Jd. No contract prevents Apple from working with rival search
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`engines to make their apps more visible or easily accessible to Apple’s customers. £.g., SMF
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`{| 83-84, 91-92. Google’s agreements with Apple have never specified which apps may be
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`preinstalled on Apple devices, how users can locate new search apps or browsers that might be of
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`interest to them, or which options are available to users for accessing and interacting with search
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`apps or browsers that are either preinstalled or downloaded by the user. Id.
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`2.
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`An Overview of the Mozilla Agreements Challenged by Plaintiffs
`a.
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`Mozilla’s Design for the Firefox Browser and 2004 Agreement
`with Google
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`Mozilla, “a non-profit organization dedicated to preserving choice and promoting
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`innovation on the Internet,” released the first version of its Firefox web browser in 2004. Ex. 30
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`at 1; see SMF ¶¶ 97-98. Mozilla de