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EU Antitrust Probe Will Make Android Leaner & Meaner

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meIn early 2000 Google employees Paul Buchheit and Amit Patel were sat in a company meeting being a nuisance. “[We] kept kind of forcing them to put it up there,” recalls Buchheit. “And because we wouldn’t let it fall off the list, it made it onto the final set and took on a life of its own from there. Amit started writing it down all over the building, on whiteboards everywhere. It’s the only value that anyone is aware of, right?” "Don’t be evil" was born.

Thirteen years later Google finds itself at the opposite end of the spectrum, at the centre of a spiralling EU antitrust investigation. It has already spent the last three years under scrutiny for manipulating search results to promote its own services, but now Microsoft-led lobby group ‘FairSearch’ wants to bring Android into the mix as well.
Androidevil
The Case for the Prosecution
“Google is using its Android mobile operating system as a ‘Trojan Horse’ to deceive partners, monopolize the mobile marketplace, and control consumer data”, said FairSearch counsel Thomas Vinje in an official announcement this week. “We are asking the Commission to move quickly and decisively to protect competition and innovation in this critical market. Failure to act will only embolden Google to repeat its desktop abuses of dominance as consumers increasingly turn to a mobile platform dominated by Google’s Android operating system.”

FairSearch argues Google only achieves its dominance in the smartphone market (approximately 70 per cent at the end of 2012) by giving away Android ‘free’ but that “in reality, Android phone makers who want to include must-have Google apps such as Maps, YouTube or Play are required to pre-load an entire suite of Google mobile services and to give them prominent default placement on the phone”. The result, it claims, puts rivals at an unfair disadvantage and sees Google increasingly gain control of consumer data on mobile as it has on the desktop.

How is the arguably greater control exerted by Apple, BlackBerry and indeed Microsoft itself enforced on their own mobile platforms not caused cries of hypocrisy? Because such practises are only punishable when a company achieves a monopoly. Something FairSearch argues Android now has.

haloThe Case for the Defence
If this all sounds familiar, that’s because it should. In 2006 the EU ordered Microsoft to pay €497 million, at the time its largest ever fine, for exploiting the 90 per cent monopoly Windows enjoyed by forcing hardware partners to pre-load its entire suite of desktop services. At the heart of it was Windows Media Player and Microsoft was told to produce a version of Windows without Windows Media Player within 90 days. Yes, technology’s power shifts are a game of musical chairs.

That said, Google’s legal position in 2013 is arguably fair stronger than Microsoft’s in 2006. For a start Android is open source and anyone is able to fiddle with the OS as they choose and pre-install whatever services they like. Android without core Google services installed doesn’t get Google certification, but that seems a fair compromise. Similarly Android offers users the choice to switch default apps away from Google’s core services.

Meanwhile the allegation that Android has an unfair advantage in being free is somewhat disingenuous. In 2011 HTC admitted it pays Microsoft a minimum of $5 per Android handset in patent royalties and Microsoft’s own financial results have shown it earns more from Android patent payments than it does from Windows Phone.

dark android
The Future - Be Evil?

While the only certainty in sizeable legal disputes is that lawyers get rich, the bigger question for Google is what the investigation means for the future of Android. Lose and Android could become even more fragmented as any semblance of core structure is lifted. Win and Google remains between a rock and a hard place as Amazon, Samsung and now Facebook lead the high profile partner rebellions arguably exploiting Android for their own ends.

Increasingly the answer looks like greater control. Locking down Android would ensure a more consistent, less fragmented user experience that pulls key partners back into line or cuts them adrift.

Inevitably this would see Android lose market share, but remaining free would surely still ensure market dominance while keeping it under the threshold for future antitrust investigations. With Google CEOs ever more vocal about unified design and ever more critical of fragmentation, the decision may already have been made.

After creating their famous slogan Paul Buchheit and Amit Patel both left Google for start-ups. Watching companies grow up often isn’t fun…

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