How can that be when Android is open source? For one thing, it depends on which version of Android you're talking about since there are really two.
Android itself, or more accurately, the Android Open Source Project (AOSP) is an open source operating system that anyone can freely use or modify for devices. If I wanted to build my own phone and could get Android running on it, I can do so. Indeed, Amazon has done exactly this with its line of Fire phones and tablets, using the open source software as a base platform and then adding its own custom interface, apps and services.
And then there's Google Android, which Google argues has only accelerated innovation while also decreasing costs for all.
This the base, freely available Android software but with added Google services and apps. Google's hardware partners -- think Samsung, Motorola, and HTC to name a few -- generally choose this version of Android and everything that comes with it. Meaning, these hardware companies enter into an agreement with Google to license the Google apps and services on devices. That includes Gmail, Google Maps, the Google Play Store and more.
Without these add-ons, the device makers would have to create their own ecosystem of Android-compatible apps. Some have tried. Samsung is a good example: It has built (or bought) music services, its own Samsung Apps store, and created its S-Voice software for voice commands on its phones.
This process to license Google's version of Android isn't new. Although the agreements have surely been modified since 2008 when Android launched, they've been in place for nearly seven years. So what's the issue?
There are actually three issues, according to the EC's press release explaining what it will be focusing on in its Android probe.
All of these have an anti-competitive theme, of course.; it's the main reason for the complaint.
As a result, the EC will likely be trying to get a long, hard look at the closely-guarded agreements that Google offers to potential hardware partners, who then decide if they want to enter into those agreements. This is less about the two flavors of Android and far more about what hardware vendors give up in order to use Google's version of Android, although Google will surely try to shift attention to the former aspect.
The probe is just getting started so this will be a lengthy process to investigate the three main objections. My early take is that Google will have the most challenge with the first two of the EC concerns.
The first one has some precedent in that Microsoft was fined by the EU in 2007 for abusing its dominant market position by requiring hardware partners to bundle certain software with Windows. The second EC complaint will depend on the wording of agreements that partners enter into with Google; if indeed there is some exclusivity language restricting hardware companies from using both the AOSP version of Android and Google's version on different devices, the EC will have a strong case.
And there has been evidence suggesting there is such language in the agreements. A 2012 Google blog post from then head of Android, Andy Rubin, seems to suggest it:
"While Android remains free for anyone to use as they would like, only Android compatible devices benefit from the full Android ecosystem. By joining the Open Handset Alliance, each member contributes to and builds one Android platform -- not a bunch of incompatible versions."
That same year, Acer was reportedly under pressure from Google to cease work on a phone using the AOSP software because it had already agreed to Google's own Android terms. While the Google Android terms may have been altered between then and now, I won't be surprised to see the EC make mention of this during its probe.As far as the third EC issue goes, I think it's the weakest of the bunch. At this point in time, you really can't have a cohesive mobile ecosystem without tying some apps and services together. Other device makers do this already; Apple being a prime example with its proprietary operating system and rules for apps that are built on it.
Whether Google has implemented this in a fashion that goes against the EC's antitrust laws is another matter, of course. Either way, I have a feeling we're about to get a closer look at those well-guarded agreements -- or parts of them, at least -- that Google requires its hardware partners to sign before using the company's Android apps and services.