(Picture by CNET.)
While open source advocates are also right that the Microsoft and Apple suits are technically not aimed at Google, all this talk misses the point.
The mobile business moves in dog years, at Internet speed, in cycles of three-to-six months. The suits are aimed at carriers and manufacturers who are making decisions now about what to order for early next year.
The suits create uncertainty. They tell Chinese companies that make phones they may not be able to close the book on today's business decisions for many years, that choosing open source carries enormous legal risks.
They also tell carriers they must negotiate their crapware strategies, that users don't belong entirely to them.
There is already evidence the strategy is working. Verizon is getting ready to sell the iPhone. On Monday Microsoft CEO Steve Ballmer will be able to call Windows Phone 7 a safe choice, and some OEMs will bite. So will some corporate accounts.
The success of Android is based on the idea that Chinese manufacturers can bypass the intellectual property claims of American software companies, and that carriers can control their customers absolutely through crapware.
Crapware, in this case, refers to software tying a phone to a carrier's app choices, which users can't take off the phone without rootkitting or jailbreaking them, voiding warranties. PC and software makers have loaded boxes with crapware for years but users have had recourse against maker's crap that may not exist against carrier crap.
Freedom, as in the user's freedom to control their own phone, is not in the room. Right now it's a choice between carrier control and manufacturer control.
America does not benefit from losing the revenue, and users don't benefit from crapware.
While I was in Munich a few days ago, a ZDNet editor explained to me how Android buyers there can get things as they want, and use SIM cards to switch between carrier networks.
Then he told me how one carrier told its Android customers they were about to get an important software update and downloaded crapware on the phones users could not erase without rootkitting their phones all over again and losing personal data.
The lesson is another layer of uncertainty. If you're to go toe to toe with your phone company you need an ally. Apple and Microsoft won't let carriers update your phone and install garbage -- they control that relationship. Google admits to being powerless.
Bottom line. These suits are not going to court. These suits are going to the market. Based on current trends, Google is going to lose in the market. They can't protect their customers, they can't remove uncertainty from their OEMs, they are powerless against the carriers.
It will take more than a bunch of legal papers to beat this FUD attack.