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

Thomas Claburn, Editor at Large, Enterprise Mobility

February 14, 2014

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

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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."

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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About the Author(s)

Thomas Claburn

Editor at Large, Enterprise Mobility

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 master's degree in film production. He wrote the original treatment for 3DO's Killing Time, a short story that appeared in On Spec, and the screenplay for an independent film called The Hanged Man, which he would later direct. He's the author of a science fiction novel, Reflecting Fires, and a sadly neglected blog, Lot 49. His iPhone game, Blocfall, is available through the iTunes App Store. His wife is a talented jazz singer; he does not sing, which is for the best.

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