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2/14/2014
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Google's Android Contract: Not Very Open

Google's rules for Android partners are unlawful, says Harvard professor.

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Google's claims about the openness of Android have been called into question by Harvard Business School associate professor Benjamin Edelman, who asserts that the company's Mobile Application Distribution Agreement suppresses competition and harms consumers.

In 2010, Andy Rubin, then head of Android, tweeted his definition of open: the commands necessary to fetch the Android source code from its online repository and compile it. While that may qualify as open in the context of open-source software, it only refers to a portion of Android, and it fails to describe contractual terms that Google imposes on companies seeking to distribute Google's popular mobile applications on Android hardware.

"In order to obtain key mobile apps, including Google's own Search, Maps, and YouTube, manufacturers must agree to install all the apps Google specifies, with the prominence Google requires, including setting these apps as default where Google instructs," Edelman explained in an online post.

Such requirements run contrary to statements about the openness of Android that have been made by Google leaders like executive chairman Eric Schmidt and senior VP Jonathan Rosenberg, insisted Edelman.

[Can Android help Nokia regain its mojo? Learn Why Nokia Plans An Android Phone.]

Edelman, who acknowledges having served as a consultant for Google competitors like Microsoft, usually with regard to online advertising fraud, said in an email that while it's common to use contracts to constrain partners, he believes Google's behavior is unlawful and should be reviewed by regulators.

Edelman said that Google holds a dominant position in the smartphone market and that the restrictions it imposes on Android hardware makers have no plausible procompetitive purpose. And he said that Google's reliance on nondisclosure agreements to keep contract terms out of the public eye and its "arguably misleading statements to the public" represent an effort to suppress a competitive response.

"What proper business objective, other than blocking competition, is advanced by disallowing a phone manufacturer from installing just (say) YouTube, but not Google Maps, if the manufacturer so chooses?" Edelman said in an email. "Or from installing Google Play and Google Maps, but DuckDuckGo for search? Some users might prefer this, and some manufacturers might want to tailor their offerings accordingly. Google prevents it. I don't think we'd see many actions of comparable brazenness from many tech companies."

HTC One, like all Android devices, ships with Google Search, Maps, and YouTube.
HTC One, like all Android devices, ships with Google Search, Maps, and YouTube.

Google did not respond to a request for comment.

Edelman's argument relies on a specific definition of the relevant market, which he defines as "the market for operating systems to install onto smartphones." The two primary operating systems in this market are Android and Windows Phone, both of which are available to third-party phone makers. But Apple's iOS is not part of this market, because it's not available to other companies. If it were, the dominance of Android would be less pronounced (80% compared to 97%, per IDC figures, if 2013's fourth quarter shipment volumes of Android and Windows Phone together define the whole market), though still substantial.

While Edelman suggested few tech companies have engaged in comparably brazen anticompetitive behavior, both Apple and Microsoft have participated in something of the sort. In Microsoft's case, it was the company's attempt to eliminate the competing Netscape browser and its API restrictions, documented in the 1998 US antitrust case and similar European Union proceedings. Microsoft, as a consequence of its EU settlement, until later this year must display a browser choice screen in Windows to promote competition.

Apple last year was found guilty of e-book price fixing and remains under the supervision of a court-appointed monitor. In 2010, Apple, along with Google, Intel, Adobe, Intuit, and Pixar, settled a Department of Justice lawsuit that claimed the companies made secret no-poaching agreements that "diminished competition to the detriment of affected employees who were likely deprived of competitively important information and access to better job opportunities."

And Apple has taken other actions which, while not subject to legal challenge and offering plausible consumer benefits, nonetheless constrain competition. The company's iOS developer terms of service agreement ruled out the possibility of Adobe Flash and Oracle/Sun Java on iOS devices. In 2010, Apple refused to approve the Google Voice app because "it appears to alter the iPhone's distinctive user experience." (Facing FCC scrutiny, Apple negotiated with Google and subsequently approved the app.) And Apple limits access to its JIT-enabled JavaScript engine to its own mobile Safari browser, presumably for security reasons, though it gains a browsing speed advantage as a result.

Tech companies say they welcome competition, but they do everything they can to shield themselves from it.

Google, meanwhile, just agreed to settle one of three European Commission (EC) inquiries into possible anticompetitive behavior. The company has committed to making changes to its search business even as the EC continues to look into its Android business and the way its Motorola Mobility unit, which is being sold to Lenovo, sought injunctions based on industry-standard patents.

If EU regulators come to share Edelman's view that Google's linkage of its services harms customers and competitors, Google may not settle the EC's Android inquiry as easily as it dealt with challenges to its search business operations.

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Thomas Claburn has been writing about business and technology since 1996, for publications such as New Architect, PC Computing, InformationWeek, Salon, Wired, and Ziff Davis Smart Business. Before that, he worked in film and television, having earned a not particularly useful ... View Full Bio

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SachinEE
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SachinEE,
User Rank: Ninja
2/20/2014 | 6:06:12 AM
Re: Google's Android Contract: Not Very Open
Apple has been more restrictive than Google in this regard. But yes I agree that Apple is doing it openly without claiming to be open. Google may be found culprit of overstating or over boasting about its openness but then as @DDURBIN1 said that it is more of a marketing tactic than a reality. Google doesn't mean it J
SachinEE
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SachinEE,
User Rank: Ninja
2/20/2014 | 5:20:50 AM
Re: Google's Android Contract: Not Very Open
I don't understand what exactly is so troubling with attaching a few products of your own with your platform which is free. Or maybe I am not very conversant with anti-competitive laws. I would have been more concerned if Google had not allowed the replacement of its built-in apps in Android by other apps. You may change the default app for any function.

 
jries921
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jries921,
User Rank: Ninja
2/14/2014 | 5:20:51 PM
Re: Android is a lease not a purchase
Agreed on Kindle.  That's why I won't own one, or download DRM-encumbered ebooks.

It turns out that a lot of good literature has been produced in the last 3000 years and nearly all of it is public domain.  I can always buy a paper copy of books still under copyright.

 

 
ShanKarthic
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ShanKarthic,
User Rank: Apprentice
2/14/2014 | 5:07:28 PM
Re: Not understanding what this has to do with Android being open
Edelman, who acknowledges having served as a consultant for Google competitors like Microsoft, 

 

Actually, now I understand.
jries921
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jries921,
User Rank: Ninja
2/14/2014 | 5:04:12 PM
Re: I see I'm not the only one who suspects illegality
I'll retract my comment, then.  Serves me right for assuming instead of doing the proper research.

 
ShanKarthic
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ShanKarthic,
User Rank: Apprentice
2/14/2014 | 5:02:28 PM
Not understanding what this has to do with Android being open
"In order to obtain key mobile apps, including Google's own Search, Maps, and YouTube, manufacturers must agree to install all the apps Google specifies, with the prominence Google requires, including setting these apps as default where Google instructs," -

What has this to do with Android OS being open or not?  Android OS is open and free (AOSP) for anyone to deploy however they want.  If someone wants to add an app that is not part of the open Android OS such as YouTube, why can't Google demand a package deal?  Issue will be if they make it such that for the open Android OS to work you need a specific Google service and to use that specific service Google in turn demands the above package deal.  Considering what I had to do every time I flash AOSP or derived ROMs, that does not seem to be the case.  So basically, the way I see it, anyone is free to use Android OS with whichever apps they want but if they want to use Google Apps, Google demands something.  In that case, OS Market share (80% or 97%) does not matter.

Now, considering Google Apps only, sure Google is leveraging Search App to push other Apps.  But their search market share is less than 70% and is not a monopoly.

"... from installing just (say) YouTube, but not Google Maps, if the manufacturer so chooses?" Edelman said in an email. "Or from installing Google Play and Google Maps, but DuckDuckGo for search?"  

As long as Google is not having a monopoly in any of those App domains and does not make it impossible to use alternatives in open Android OS, there is no standing to demand that.  If anyone decides to pre-package a Google App, that is more as a selling a point rather than a mandatory need.  In which case, Google can do as it wishes.

What community should be worried about and keep an eye on is, if Google makes it impossible to use Android OS without specific Google Apps/Services.
Thomas Claburn
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Thomas Claburn,
User Rank: Author
2/14/2014 | 5:01:52 PM
Re: I see I'm not the only one who suspects illegality
>But as neither I nor Prof. Edelman are lawyers

Actually, Edelman is a lawyer (and something of an overachiever, degree-wise):

From his bio...

"Ben holds a Ph.D. from the Department of Economics at Harvard University, a J.D. from the Harvard Law School, an A.M. in Statistics from the Harvard Graduate School of Arts and Sciences, and an A.B. in Economics from Harvard College (summa cum laude). He is a member of the Massachusetts Bar. "
DDURBIN1
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DDURBIN1,
User Rank: Ninja
2/14/2014 | 4:53:13 PM
Re: Android is a lease not a purchase
I guess you've never used a Kindle.  Guess what?  Same software and usage rules are now being applied to digital books.
jries921
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jries921,
User Rank: Ninja
2/14/2014 | 4:44:04 PM
Re: Android is a lease not a purchase
Interesting point, but usage of copyrighted materials is a bit murky from both legal and ethical perspectives.  No publisher in the world tries to dictate to consumers what is to be done with the paper books they buy.  By law, copies cannot be distributed without the consent of the copyright holder, but nobody tries to tell people they can't read the books aloud, discuss their contents, resell them, satirize them, or donate them to the public library.  Yet all manner of restrictions are imposed on the usage of computer software on the theory that the license is a contract between the publisher and the end user, even though the latter only has the option of accepting or rejecting the "agreement" in full.

 
jries921
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jries921,
User Rank: Ninja
2/14/2014 | 4:36:29 PM
Re: Semantics
People are allowed to comment on the practices of one vendor without commenting on all of them.  Some of MS' and Apple's practices may well be similar and illegal.  If you want to do the appropriate analyses and let people know your findings, you're more than welcome to do so.  MS definitely got into legal trouble over its efforts to dictate to OEMs what to do with Windows.  Under existing precedent, Google's announced policy is at least suspect.

And it's always possible that Prof. Edelman *has* done such analyses which are not being reported here.

 
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