The European Commission is going after Google again—this time with a better chance of success
IN
2001—aeons ago in internet time—the European Commission sent a sternly
worded missive to Microsoft. It accused the software maker of having
illegally extended its dominance in operating systems for personal
computers (PCs) into adjacent markets, for instance by tying Windows to
programs that play music and videos. The legal action lasted more than a
decade and took many turns, but Microsoft eventually had to unbundle
its Windows monopoly from other software, in particular by giving
consumers the choice of which web browser they want to use.
On
April 20th the commission presented Google, one of the brightest stars
in the modern tech firmament, with a similar “statement of objections”,
as the charge sheet in European Union (EU) antitrust cases is called.
Google, it argues, has followed a strategy to “preserve and strengthen
its dominance in internet search” by tying this service and some of its
popular apps to Android, its mobile operating system, which powers
around 80% of all new smartphones (see chart). As in the Microsoft case,
Google may ultimately be forced to unbundle its package of software and
services.
This
is not the only bit of Google’s business that is facing antitrust
scrutiny. Last year the commission accused it of having harmed consumers
by using its dominance in the internet-search market to steer them away
from rival offerings and towards its own comparison-shopping service.
Also in the pipeline are probes into Google’s behaviour in other online
services, digital advertising and Google’s use of content from other
sites (for things like Google News). On April 18th News Corp, a media
giant, filed a second complaint against such “scraping”, alleging that
this keeps consumers from visiting its sites and strengthens Google’s
search dominance.
But
the Android case stands out. It is particularly timely: the action in
the tech industry has long moved from PCs and online search to mobile
computing and apps. It is more of a threat to Google: Android is a key
part of the firm’s money-making machine. And the case is more
straightforward from the trustbusters’ point of view. In terms of
remedies, Google wouldn’t have to rewrite its software, but simply
change its conduct. It is also harder to accuse the commission of once
again picking on American tech firms, since the Federal Trade Commission
in Washington, DC is also looking into the matter.
On
the face of it, putting Android at the centre of an antitrust case
seems silly. It faces competition from iOS, Apple’s mobile operating
system. It is also “open-source”, meaning any hardware-maker can adapt
the program as needed and install it on its devices for nothing. Yet
since Apple doesn’t license its software to other smartphone and tablet
brands, they are stuck with Android. And to be able to offer
commercially viable products, it helps to pre-install some of Google’s
popular apps, particularly Google Play, which is the dominant app store
for Android.
The
problem is that these add-ons are not open source and come with strict
licensing rules. The commission focuses on three of these:
handset-makers that wish to pre-install Google Play must, among other
apps, also add Google Search and make it the device’s default search
service; if they want to share in Google’s ad revenues they have to
exclusively pre-install Google Search; and if they pre-install Google’s
apps on any of their models, they must commit to install only Google’s
standard version of Android on each and every one of their models.
The
case hinges on whether such restrictions are deemed legitimate. It is
easy to see why Google would want to promote its search and other apps.
They are a vehicle for advertising, help the company to make money from
Android, in which it has invested billions, and let it collect all sorts
of data about users. The licensing terms, the firm argues, also serve
to keep Android from fragmenting into incompatible versions and “make
sure that people get a great ‘out of the box’ experience with useful
apps right there on the home screen”, in the words of Hiroshi
Lockheimer, who is in charge of Android at Google.
The
commission begs to differ. The licensing conditions, it argues, limit
the freedom of manufacturers to choose the apps they want to
pre-install, and make it hard for rivals to compete on their merits.
This stifles competition and harms consumers, especially by limiting
innovation, according to Margrethe Vestager, the EU’s competition
commissioner. “A strong incentive for innovators is that they can
present their product to consumers,” she said this week. “If that isn’t
possible, why bother?”
The
case won’t be decided soon, unless Google opts to settle, which seems
unlikely. The firm has 12 weeks to respond, after which Brussels could
take several months to come up with a final ruling and a remedy (it
still has to issue a decision in the search case, which is now expected
to come before the summer break). This ruling can be appealed to the
European Court of Justice, meaning that a final decision may be years
away. If Google loses, it would presumably have to drop the licensing
restrictions. It might also have to pay a fine, although it is unlikely
to be anywhere near the theoretical limit of $7.4 billion, 10% of the
firm’s 2015 revenue.
Google
has a point when it says that it needs to keep Android from
fragmenting. If that happened, life would get a lot more complicated not
only for app developers, but smartphone users. And it would become
harder for Android to compete with iOS. But it is difficult to see, for
instance, why Google Search needs to be the default search service. What
harm would be done, other than to Google, if Android phones came with
Microsoft’s Bing as the default for search? China shows that competition
is livelier without such licensing conditions: because Google Play is
not available there, most handsets are powered by modified versions of
Android and come with different app combinations.
Antitrust
sceptics see the Android case as yet more proof that such legal action
is just not worth it in the fast-moving tech world. Even if a decision
comes soon, it will take time for a remedy to change things on
smartphone screens. And by then the market for mobile software may have
changed completely: instant messaging apps are growing into application
platforms of their own and text-based services called “chatbots” are
poised to become an alternative to apps. But it is easy to forget that
although in the Microsoft case, too, the remedy came late and was of
limited relevance, being under antitrust scrutiny forced the company to
offer competitors more room. One of the main beneficiaries was none
other than Google.
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