Lawyers for both sides squared off in a San Francisco courtroom for a status conference Thursday, where Donato said he was disinclined to take up Epic’s
motion for a preliminary injunction to prevent Google from enforcing its new policy, preferring that the parties work out a solution among themselves.
The motion, filed April 28, comes just after Epic
closed on a deal to acquire Bandcamp, an “online record store and music community” that allows artists to sell music and merchandise directly to fans. Its existence on the Google Play Store now hangs in the balance.
Google attorney Glenn Pomerantz said Bandcamp executives agreed to comply with Google’s new policy prior to being bought by Epic, but communications became “terse” after the deal closed and Bandcamp stopped cooperating.
“Bandcamp was working with us to comply, and now Epic is trying to use its acquisition of Bandcamp as a weapon in this lawsuit,” Pomerantz told the judge. “They never said ‘we’re not going to comply’ until the middle of April after the Epic acquisition. Bandcamp should do what it said it was going to do — work with us to design and implement.”
“So it’s a problem of their own making,” Donato observed.
Donato also questioned the timing of Epic’s injunction motion, as it appeared to coincide with its Bandcamp purchase.
“What concerns me is it seems that Bandcamp knew no later than August 2021 that it had to switch to the Google billing system and they were working on it,” Donato said in response. “It is now eight months later and Bandcamp has new ownership. On that basis alone irreparable harm is hard to maintain. You can’t waiver for eight months and come in and say the house is on fire.”
Donato said he didn’t want to handle the matter with an injunction. “The merits of a preliminary injunction motion are so intertwined with the difficult and challenging issues in this case that I’m not going to do a fly-by,” he said. “I’m hoping Google will see its way to not doing anything on June 1.”