Google's "highly proprietary source code": unfair edge for Motorola?

Google's "highly proprietary source code": unfair edge for Motorola?

Summary: Last week, Google filed a motion for sanctions against Microsoft over access to "highly proprietary" Android source code. The company said it doesn't even share this code with its partners, including Motorola. But what happens to that code when Google owns Motorola?


Licensing operating systems to hardware partners is a tricky business. Google’s announcement this week that it plans to buy Motorola Mobility is a tacit admission that the partnership thing just isn’t working out for them. Android might be selling lots of phones (and a few tablets too), but the ecosystem is a mess, the Android reputation isn’t exactly stellar, and Google isn’t making nearly enough revenue per phone.

In “Android isn’t free,” Farhad Manjoo of Slate predicts that "this deal will represent a turning point in how Google operates Android."

Today, the platform is "open" but chaotic—because phone-makers get the software for free and can do whatever they want with it, Android is available on some good phones as well as lots and lots of cheap, bad ones. In the aftermath of this deal, Google will seek to exert greater influence over hardware companies.

And it will be able to exert the greatest influence of all over the company it owns. Buying a hardware company means Google gets to build Android and its phones in sync. Tablets, too—if this merger goes through, the Motorola Xoom will become a Google device.

Google is buying a company with 19,000 employees that sells more than 10 million phones every year (although fewer than half of those are smartphones). A Google phone or tablet manufactured by Motorola will have unfair advantages right out of the gate.

Such a phone will almost certainly be set by default to use Google services and will also steer traffic exclusively to Google’s sites. There’s no guarantee other handset makers will be as loyal to Google—at least not without some cash in exchange for setting the right default services. Google can even sell its phone at or below cost if it knows it can make a higher amount through the ongoing revenue stream.

But the biggest advantage of all is technical. The engineers who work on those new phones and tablets made by Google subsidiary Motorola will have access to “highly proprietary” parts of Android that Motorola engineers don’t see now.

Google admitted as much last week in a legal document it filed with the International Trade Commission in Washington, D.C. Microsoft is the complainant in that case, accusing Motorola of patent infringement in a case that involves “Certain mobile devices, associated software, and components thereof.”

Although Android isn’t mentioned in that title, the Android source code is the star of the investigation. Experts on both sides are looking at it. Last week Google filed a Motion for Sanctions against Microsoft, arguing that Microsoft had improperly shared “highly proprietary source code that Google does not even share with its partners, such as Motorola.”

In its motion, Google argues that it must keep Microsoft from “gaining advantage” from this source code. So how do Samsung, HTC, LG, and Sony Ericsson feel about a direct competitor getting access to code they can’t share?

I can't imagine that Google will build a wall between its hardware arm and the keepers of its Android source code, unless they're forced to do so. The financial and technical advantages of combining hardware and software design forces are significant. The urge to merge them fully would be irresistible.

Under the circumstances, I don’t see how the existing partner relationships that Google has built can survive. The best case scenario is that they are severely weakened. My guess is that all four of those recently demoted Android partners are polishing the language in their antitrust complaints right now.

Most of the speculation I’ve seen so far says this merger should pass regulatory muster pretty easily. I wonder if the question of source code could be a bigger obstacle than some people think.

Update: Apparently some commenters don't believe that the source code under discussion is related to Android. Yes, it is. Here is the description of the legal action, taken from Motorola's annual report to the SEC (Form 10-K), under the heading "Patent-Related Cases":

Microsoft Corporation v. Motorola, Inc.

On October 1, 2010, Microsoft Corporation (“Microsoft”) filed complaints against Motorola, Inc. in the International Trade Commission (“ITC”) and the United States District Court for the Western District of Washington (“District Court”) alleging patent infringement based on products manufactured and sold by Motorola, Inc. The ITC matter is entitled In the Matter of Mobile Devices, Associated Software, and Components Thereof (Inv. No. 337-TA-744). On October 6, 2010 and October 12, 2010, Microsoft amended the District Court and ITC complaints, respectively, to add Motorola Mobility, Inc. as a defendant. The complaints, as amended, allege infringement of claims in nine patents based on Motorola, Inc.’s and Motorola Mobility, Inc.’s manufacture and sale of Android-based mobile phones. [emphasis added]

The Google source code was delivered under subpoena and is directly related to the "Android-based mobile phones" described in the complaint.

Update 2: The ITC administrative law judge has denied Google's motion, according to Reuters. The judge's decision was, in fact, sharply critical of Google:

The ground rules in the case, in which just about everything is (frustratingly) shielded by the confidentiality order, say that any party that objects to another’s use of confidential materials has to make a good-faith effort to resolve the dispute, and then must wait two days before filing a motion for sanctions. “The ALJ finds no basis to discern from Google’s statement whether Google made a reasonable, good-faith effort to resolve the matter with Microsoft,” Judge Essex wrote. “The ALJ notes to Google failed to attach the Warren email to its motion and it is unclear whether Google even notified Microsoft of its intention to file the instant motion.”

As a result, Microsoft's expert witness will be allowed to testify about the source code associated with Motorola's Android devices.

Topics: Android, Google, Hardware, Laptops, Mobility, Tablets, Telcos

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  • RE: Google's

    Love to see the Windows source code and how much of that has been pilfered
    Alan Smithie
    • RE: Love to see the Windows source code

      @Alan Smithie

      Only, if you want a lesson in how to write <i>spaghetti code</i>.
      • you've been privvy?

        @fatman65535 , where do the likes of you and your idiotic comments come from, just curious.
        You obviously haven't noticed the stream of "spaghetti coders", engineers and designers that have gone from MS to Google or Mozilla or elswhere and also the other way around. The pool of developers and software engineers and designers have been thouroughly mixed.
        There is not one advantage or bit of better code from OS X to Linux to Windows. they are all roughly the same quality and based on equally old and crappy software in all cases.
        I'd love just one OS, here in 2011 to just work and do so even close to flawlessly without unecessary complexity but none of them offer that....nope not even OS X Apple fanatics.
      • RE: Google's

        @xuniL_z - well said.

        @fatman65535 - a quick search on the internet would have returned to you links to Diomidis Spinellis' paper presented at ISE 08 which compares the source code of Windows Research Kernel (based on Windows 2003 Server) vs. Linux vs. FreeBSD vs. Solaris.

        That paper would have highlighted the strengths and weaknesses of the source code of each OS at the time.

        Note, however, that the Windows source tree has undergone considerable improvement for Win7 and even more improvement for Win8 as part of the MinWin effort to re-modularize Windows and eliminate unnecessary dependencies between modules.

        Alternatively, you can continue in your ignorance and enjoy the rewards that brings you.
      • RE: Google's

        @fatman65535 I Doubt it is even written in Visual Basic... uhmm is it? *cringe*
      • RE: Google's

        @fatman65535 Just look at all the Linux code, that will show you how to write spaghetti code that does not work very effectively.
    • Will you cry when you learn none of it was?

      @Alan Smithie

      Tim Cook
      • RE: Google's

        @Mister Spock :( it seems.
  • RE: Google's

    How can Android be both "open source" and contain "proprietary code"?
    Rich Miles
    • easy...

      @Rich Miles's not released yet - so it's not open source.
      • RE: Google's

        @vgrig So, Android isn't open source then? Because this code is certainly in production.
        Rich Miles
      • RE: Google's

        @vgrig That would not be accurate! The entire 2.3 line has been released for some time...

        Google keeps their apparently separate in what they refer to as the gmanapps suite... This is typically things like Gmail, youtube, the Market and such, these are proprietary.

        Either way, this will not give Google an edge.
    • RE: Google's

      @Rich Miles It can't. It isn't "open" in the way RMS would understand it. This whole "open" nonsense is just a smoke screen, and the "openness" never benefitted end customers anyway.
      • RE: Google's

        There is more to open source than RMS's interpretation.

        @Rich Miles
        1. i don't see anywhere in the document (other than Bott claiming it) that this code is part of the android and specifially part of the released android version. In fact there is no word "andrioid" in google's filing. for all we know it can be a Q&A script for testing android builds.
        2. Google doesn't have make code available untill it ships a product with that code - that's how GPL works. So - as far as i know - source code for every android product that ever shipped to consumers is available. (there was a delay of code release for 3.0 or 3.1 - i don't know what happened with that).
      • RE: Google's

        @vgrig - thank you! Some sanity and clear observations, finally. I too was wondering what made Ed Bott think the code involved was in Android ... and as to licensing, what you say is true, but even more importantly, little of Android is under GPL anyways, and all of it that is in fact openly available all the time, even during development. The userspace stuff that's under the Apache Software License 2.0 is held privately until release, however.
      • Go read the documents

        @Jeremy-UK and @daboochmeister

        Have you guys read the documents? This is the source code that goes in Android devices manufactured and sold by Motorola. It could not be clearer.
        Ed Bott
      • RE: Google's

        @Ed Bott - Yeah, I understand that. My point is Google's instance that Android is completely "open" doesn't jive with the reality that there is source code in implementations they don't share even with partners! Then there is MotoBlur (on some Motorola devices) that is closed source. This "open" nonsense is just that.
      • (deleted)

        (deleted [by me ... not worth the words]).
    • Message has been deleted.

      Still Lynn
      • RE: Google's

        @Still Lynn I agree. I was sorry I read it afterward. What a bogus crock.