Prof squints at Google's mobile monopoly defence, shakes head

Where's the competition?

Analysis Google says that its tight control over Android is necessary to keep Android great, and safe for consumers, adding that it's not all that heavy-handed. Honest.

Google feels hard done by because it has created a market of alternatives to Apple’s costly and proprietary iPhone, and that ecosystem benefits consumers. There’s no arguing with that.

Android is actually a "model of open innovation," Google responded today.

But the EU Commission says things could be much better: Google’s behaviour “restricted innovation in the wider mobile space”.

Is Google’s consumer benefits argument fair? We asked Professor Ben Edelman, the only authority to publish and analyse Google’s secrets mobile contracts with Samsung and HTC in full – for his view.

Ah, says the professor. Google saying things are rosy is not a Get Out of Jail Free Card for anti-competitive behaviour. Edelman reminded Google there’s a difference between not liking competitive law and refusing to obey it.

“I disagreed with the European Commission when it addressed the question of media players in Windows: it seemed mistaken to me,” says Edelman of his testimony against Microsoft in its competition case. "But eventually you can come to terms with the law. I can disagree with the speed limit, but I can’t fight the policemen giving me the speeding ticket. I can disagree with the law - I can’t disobey it.”

There’s an open-source part to Android, and there’s a proprietary Google chunk, called GMS, for which you must pass a series of tests. In a 2011 court case, a Google executive memorably describe Google using the compatibility tests with the words: “We are using compatibility as a club to make them [OEMs] do things we want".

“They’ve structured it in a way [as] to make GMS commercially irreplaceable,” Edelman explains.

And the proof of just how irreplaceable it is in the tale of Amazon’s Fire Phone. “The Fire Phone had a lot to be said for it. It had some real innovations, it was a perfectly promising device. However, without access to the Google Play Store, you couldn’t install Facebook, or Uber, and many other apps. Imagine how much better the Fire Phone would have been with those.”

The Fire Phone flopped in the marketplace.

Edelman notes that Google pays OEMs to make its search product the default, even though the clauses in the secret contracts (MADAs) already specify that as a qualifying condition to bundle GMS.

“You may ask why Google would do that, since the MADA requires OEMs include it. It seems duplicative. Why not have an incentive of zero? This question has not been raised by anyone as far as we know.”

The answer is that it disincentivises a Samsung, for example, from creating its own middleware stack and search. “Google is paying Samsung not to compete,” says Edelman.

Edelman says Google's defence that only pre-installation is required is misleading. “There’s only one default search provider, and only one default location service. The clue’s in the world “default”: there’s only one Default.”

Location, location, location

"Location is a fascinating example of the subtle migration of value away from the open-source portion of Android into the proprietary Google blob. A phone without assisted location may take a minute to get an accurate lock. One using Google’s network of Wi-Fi stations and assisted GPS can get one in five seconds.”

“Where would a phone maker get an alternative to Google’s location services? There isn’t one,” says Edelman.

“Location Services is incredibly important: it has privacy implications, and it’s commercial valuable. Google insists its own services must be its service.“

Skyhook were doing this years before Google did it, but took on Google in court and lost. It claimed Google had forced Motorola to drop Skyhook’s positioning service from the Motorola Droid X phone - its inclusion in the Moto had been a “stop ship issue”, according to then-Android chief Andy Rubin. Motorola was in the process of shipping around 40 Android devices, but suddenly found unexpected hurdles popping up at the GMS compatibility stage. Google insists the GMS compatibility tests are independent.

News of Skyhook’s inclusion in the Motorola device reached Larry Page. He was reportedly told that Skyhook would “pollute” Google’s own data collection. That’s a stark reminder that Google is primarily in the data-collection business. The shiny shiny phone is a way of manufacturing consent for the data collection and tracking. Consumers rarely look a gift horse in the mouth; fanbois are even less inclined to look.

Google also argues that allowing rivals to be the default search or mapping apps confuses consumers. The Android brand means trust, and that requires healthy phones. This gets short shrift.

“Would the Android ecosystem truly be less reliable or trustworthy if some phones came with, say, Yahoo! Maps?” asks the professor.

If anything confuses consumers, it’s rogue skins, inconsistent UI design or counterfeit apps.

“Allowing those problems to fester for years, Google cannot plausibly claim significant consumer confusion or ecosystem harm from, say, a competing maps app clearly labeled as such.”

Edelman summarises his views of Google’s defence here.

Google has 12 weeks to reply and can request an oral hearing. But the signs aren’t good. A fine is possible, but far away and not likely to worry Google. It’s much more likely that Google will be required to change its contracts to allow competition a chance: something any large monopoly hates to do. ®

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