Google’s Response to the EU is Brilliant (Premium)

Using past Microsoft, Intel, and Apple antitrust cases as its guide, Google has offered a uniquely Googley response to EU regulators. Yes, it will comply with the recent ruling that it has abused its monopoly power with Android, harming competitors and consumers. But it will also continue with its appeal, and will only change its licensing policies in Europe.

This is, in a word, brilliant.

“We believe that Android has created more choice, not less,” Google’s Hiroshi Lockheimer reiterates in a public statement about its official response to the European Commission. “At the same time, we’ve been working on how to comply with the decision.”

That first bit—that Android somehow enables more choice—has been the heart of Google’s rebuttal to the EU for years. But as I noted back in 2016, that’s nonsense because it ignores the unfair advantage Google gets by forcing partners to install Google apps and services on Android and then make them the defaults. If you want to use Android, there’s no choice in this matter, not really.

At that time, I expressed my belief that Google would lose this case. Which they have, pending appeal.

But a year later, I was interested to see how Google responded to the EU’s other complaints about the firm’s business practices. (And there are several such complaints.) So when Google elected to support news publishers rather than stomp all over their content as they would absolutely have done were it not for EU scrutiny, I saw a company that was learning from Microsoft’s belligerent earlier responses to its own EU antitrust charges.

Which brings us to Android.

In July, the EU charged Google with violating its antitrust laws and it fined the search giant $5 billion and demanded that it comply with a set of changes to its business practices in this market.

More specifically, the EU demanded that Google no longer require hardware makers and large network carriers to pre-install Google Search and Chrome. And it was forbidden from preventing Android licensees from also selling even a single mobile device running on alternative Android versions (or “forks”) that were not approved by Google.

Google said it would appeal. But in thinking about the EU charges—which are real and, I feel, clear-cut—I opined back in July that Google would not make the mistakes that Microsoft did in dragging its corporate feet and would instead settle this case quickly.

A few months later, Google asked for more time to file its response. And I had started to think that the EU might actually cause real change in the Android ecosystem.

“Put simply, Amazon’s crappy tablets and Samsung’s overly-complicated devices are a direct result of Google abusing its market power and requiring its own partners to work against the best interests of their customers and their own businesses,” I wrote at the time. “But if Google makes the concessions that the EU is demanding, these problems both disappear. And I think it’s going to happen.”

Too, making concessions to the EU now can’t really hurt Android, I noted: Android is dominant, and giving its partners more leeway won’t hurt because consumers will continue to expect and demand Google’s popular apps and services.

And now we have Google’s response to the EU. It is, as noted, brilliant.

Google will comply with the EU demand that it no longer force hardware makers and carriers to bundle Google Search and Chrome with Android.

But there’s a catch. Of course there’s a catch.

“Device manufacturers will be able to license the Google mobile application suite separately from the Google Search App or the Chrome browser,” Lockheimer writes. “Since the pre-installation of Google Search and Chrome together with our other apps helped us fund the development and free distribution of Android, we will introduce a new paid licensing agreement for smartphones and tablets shipped into the [European Economic Area] (EEA). Android will remain free and open source.”

First of all, Android is not free and open source. Something called the Android Open Source Project (AOSP), which doesn’t include the Google Play Store and various Google apps and services, is free and open source. Android—real Android—has always carried a licensing fee for hardware makers.

More humorously, Google has found a way to stick it to the EU by only raising prices in the EU. So only those companies that sell products in the EU, and only EU-based customers (who, say, might complain to EU-based politicians about this) will ever pay more. Android remains at the same pricing levels as before elsewhere in the world.

Google will also allow partners to build “non-compatible, or forked, smartphones, and tablets for the EEA” only and still sell full Android devices, too. This meets the previous requirement that forced partners to choose one or the other. But again, only in the EEA.

Finally, Google will “offer separate licenses to the Google Search app and to Chrome.” I assume this means that hardware makers—again, EU only—which choose the AOSP route can now separately license and pay for this small subset of useful Google apps and use them on those devices.

These changes, again, are EU-only. And they apply only to new devices that are launched there on or after October 29.

Talk about throwing down the gauntlet.

By making these concessions only in the EU, Google is effectively isolating the region and transparently allowing anyone to compare how Android is licensed and bundled on new hardware in different places. We’re going to see devices that are unique to Europe, and devices that behave differently in Europe than they do elsewhere. Google has created a mess, for hardware partners, carriers, and customers. And it gets to blame the EU and point to its previous statements about how Android, as it was originally envisioned, is all the choice that anyone ever needed.

That Google doesn’t really have a point is, well, besides the point. That Google is passively-aggressively channeling Microsoft’s belligerent antitrust responses of the past but is doing so in a more subtle fashion is, perhaps, very much the point. What Google has done is find a way to address the concerns of the EU to the letter but not in spirit. It’s very much a veiled f@#k you.

You know, maybe Google isn’t that different from the old Microsoft after all.