These key restrictions won't help Google in the EC's Android antitrust probe

Agreements that Android hardware partners make with Google were made available in a court case, giving a glimpse of what the EC's antitrust probe will be looking for.
Written by Kevin Tofel, Contributor

Earlier this week, the European Commission announced it is probing into Google's Android software for potential antitrust issues. The outcome could profoundly influence Google's mobile platform implementation in the region, where Android has a majority of the mobile market, according to the EC.

I explained the commission's three main concerns, which revolve around reported requirements for Google's hardware partners. The issues have to do with Google's own apps and services must be pre-installed and prominent on phones and tablets, as well as stopping hardware partners from using the open source version of Android on other devices they make.

The European Commission will surely want to dig deeper into those agreements, which Google's partners choose to accept, or not, as the case may be. But such agreements are difficult to find publicly as details of the relationships between Google and partners is confidential.

It's worth noting here, that I'm not a lawyer. Ben Edelman is, however, as he holds a J.D. from Harvard Law School. And in 2014 he tracked down one actual example of the elusive agreement, known as a MADA, or Mobile Application Distribution Agreement.

The MADA documents that Edeleman hosts on his website are a bit outdated; they're dated January 1, 2011 and are the terms that both HTC and Samsung entered into with Google at that time. Normally, such documents are kept confidential but Edelman notes on his blog that these were entered into open court during Google's trial with Oracle.

You can view the full PDF scans of both documents in the links above, but Edeleman points to a few key clauses that are very relevant.

  • "Devices may only be distributed if all Google Applications [listed elsewhere in the agreement] ... are pre-installed on the Device."
  • The phone manufacturer must "preload all Google Applications approved in the applicable Territory ... on each device."
  • The phone manufacturer must place "Google's Search and the Android Market Client icon [Google Play] ... at least on the panel immediately adjacent to the Default Home Screen," with "all other Google Applications ... no more than one level below the Phone Top."
  • The phone manufacturer must set "Google Search ... as the default search provider for all Web search access points."

Clearly, Google's partners -- at least in this particular agreement -- have to make Google's apps and services front-and-center on any Android devices. That's not nesscessarily surprising, nor unique to Google. And if a company that builds tablets or phones doesn't want to do so, they can just use the less restrictive, open source version of Android. Or can they?

That's a question I wouldn't be surprised to see the EC probe ask Google. There is evidence of at least one Google Android partner being pressured not to release device running the Android Open Source Project software; i.e.; a device that wouldn't have any official Google apps or service. That means no Gmail, no Google Play Store, and no Google Maps, to name a few.

At that time -- when Acer reportedly wanted to release a device using a forked version of Android software in 2012 -- Google provided ArsTechnica with the following statement:

"Non-compatible versions of Android, like Aliyun, weaken the ecosystem. All members of the Open Handset Alliance have committed to building one Android platform and to not ship non-compatible Android devices. This does not however, keep OHA members from participating in competing ecosystems."

Essentially, Google is saying that Acer agreed not to ship devices running the open source version of Android when it signed its Google Android agreements. I don't see any such restriction in either the Samsung or HTC MADA documents, so it's difficult to say if there's a formal agreement backing up Google's statement. And, to be fair, we're talking about documentation from 2011; the agreements may have changed since then, although the terms are for two years.

Either way, such agreements and restrictions were in place as Google Android gained market share in the EU. So I won't be surprised at all if the Android probe focuses on them while also looking into other business practices related to Android. And Google does have a valid point about having one big shared Android ecosystem that works across all devices; consumers wouldn't benefit overall from dozens of app stores and millions of incompatible apps.

Again, I'm not a lawyer. But after reading through the MADA and considering how it strongly benefits Google, I can reasonably see the EU's initial concerns. The more highly-qualified Edelman seems to agree, noting,

"These MADA restrictions suppress competition. Thanks to the MADA, alternative vendors of search, maps, location, email, and other apps cannot outcompete Google on the merits; even if a competitor offers an app that's better than Google's offering, the carrier is obliged to install Google's app also, and Google can readily amend the MADA to require making its app the default in the corresponding category (for those apps that don't already have this additional protection)."

This is the main reason you may have seen multiple versions of apps that offer similar functionality on Android phones. Look at a handset from Samsung, for example, and you'll often find two email applications, two app stores, several apps for text messages and so on. It's the only way Samsung or other Google Android partners can try to boost their own ecosystem of apps and services.

Actually, there is a second way, but it's far less preferrable. Samsung's Tizen software effort is the perfect example. The company apparently can't use the open source version of Android to build out a new line of phones, so it chose a competing platform to do so. That project has been repeatedly delayed, resulting in a single, low-cost handset with two more possibly on the way. These phones aren't big sellers though because they're competing against similarly priced Google Android devices that have a much more robust app and service ecosystem.

It doesn't matter to the European Commission what I think, but I can certainly understand why it's launching the probe. Google's partners technically had a choice to enter into these agreements. If they hadn't though, they'd be losing out on market share to competitors that have accepted Google's terms. The only other choice would be to go it alone with another platform and as Samsung has shown, that's not a desirable one.

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