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A report by Nilay Patel of This is my next digs through more than 750 pages of documents unsealed by the court.
"Perhaps surprisingly," Patel wrote, "itâs relatively clear from the evidence that Google is the major gatekeeper between OEMs and the market."
The documents reveal that Google has unique agreements with different hardware makers, and that each Android license has an expiration date.
In addition to the core Android software and its Linux kernel, which are largely freely available for unrestricted use, Google maintains tight control over its own layer of proprietary apps, which contribute much of the value of the Android platform.
Google's control over Android devices is no more open than Apple's App Store approvals
Google's contracts leverage the company's own, closed Android apps (including Gmail, Google Maps, YouTube and Android Market) to block competing services (such as Skyhook's location services) or prevent unapproved devices from appearing on the market, the evidence indicates.
"In order for a specific device to get a license for the [Google] apps, it must pass the Android Compatibility Test Suite and meet the Android Compatibility Definition," Patel explained. "How Google exactly determines what passes the test is really the core issue in this case â Skyhook claims Google uses the threat of incompatibility to act anti-competitively."
Google's Android licenses with hardware partners allow the company to change the tests and compatibility definitions at any time, "so basically thereâs nothing keeping Google from changing the CTS or ACD any way it wants in order to keep a particular device off the market," the report noted.
While hardware makers are free to build Android devices that aren't rated as compliant by Google and ship without the search giant's apps, there is no market for such "open" devices because hardware makers' carrier contracts require Google's apps. "If Motorola shipped software that didnât have Googleâs blessing (and apps)," Patel wrote, "it would immediately violate its contracts with carriers."
Google vetoes Motorola partnership with Skyhook
Core to the lawsuit by Skyhook is a decision by Google to threaten a "stop ship issue" to block approval of Motorola's Droid X phone last summer because Motorola had contracted with Skyhook to provide location data services for the phone's users.
Google first learned of the partnership between Motorola and Skyhook in an online news article, setting off an email discussion between Google's executives that is documented in the Skyhook legal filings.
Google's location product manager Steven Lee wrote to company co-founder Larry Page, "The risk we face is if Skyhook creates a perception in the industry that they are way better [in providing location data], then more and more partners will switch to them without doing much testing or due diligence themselves.
"And that would be awful for Google, because it will cut off our ability to continue collecting data to maintain and improve our location database. If that happens, we can easily wind up in the situation we were in before creating our own location database and that is (a) having no access at all or (b) paying exorbitant costs for access."
In May 2010, Google initially told Motorola that using Skyhook's service would contaminate Google's own location database. Motorola then verified that Skyhook had passed the Android compatibility test. But Google maintained that Skyhook's system could not be approved and issued a "stop ship" order to Motorola, resulting in decision by Motorola chief executive Sanjay Jha to pull Skyhook from the Droid X to enable it to reach the market.
Arbitrary and capricious
Before Motorola could ship the new Droid X, however, Samsung delivered its Android-based Galaxy S smartphone with Skyhook's location service installed, prompting Motorola to ask why Google was putting it in "in an uncompetitive position." Google's response was that "Motorola should not be concerned with other OEMs and their devices."
At the launch announcement of Droid X in late June, Motorola complained to Google that "itâs unacceptable to be put in a position which limits our ability to compete,â saying that the company was in the process of getting 40 other Android devices through the approval process, and that "over half have been impacted by requirements which were not available or clear prior to submission."
Google responded, "controlling fragmentation on an open platform to ensure that Android is a successâ¦ will mean that we learn some lessons the hard way. Having a vibrant ecosystem around an un-fragmented platform is in everyoneâs interest, so we all have to bear the burdens."
Motorola's difficulty in getting Android models approved by Google likely plays into the company's decision to develop its own Linux-based smartphone platform independent of Android.
Skyhook alleges anti-competitive behavior by Google
Meanwhile, Skyhook was insisting to Motorola that its location service was being deemed incompatible by Google âbased solely on the interpretation of the word âsatellitesââ and not for any technical or performance reason. Patel notes that "Skyhook also claimed it was not shown any documentation from Google saying that XPS [Skyhook's location service] was not compliant with the Android compatibility document."
Skyhook offered to solve any potential 'data contamination' problem by disabling location data collection by Google's apps, but Motorola responded that its Android license required that Google's apps be allowed to collect location data, and that its carrier contracts require that Google's apps be installed on its phones.
In July, Motorola again complained about Samsung's Google-approved use of Skyhook, to which Google responded that Samsung had also stopped using Skyhook's services. Motorola subsequently told Skyhook that "Android devices are approved 'essentially at Googleâs discretion,' and that Motorola could not afford to break its relationship with Google," according to the report on the documentation.
The next month, Motorola terminated its contract with Skyhook, saying that the company had made unauthorized statements to the press and had "failed to deliver a functioning product that can be loaded on Motorola Android-based products."
Skyhook subsequently sued Google for business interference, launching a case very similar to the charges that Microsoft faced in the 90s for contractually obligating the bundling of an unremovable Internet Explorer web browser on Windows PCs to erase the market for third party browsers.
Android vs iOS
The Skyhook case demonstrates Google's increasing efforts to limit further fractionalization of Android by blocking the ability of third party hardware makers to release products or services using its own Android licensing and approval process, which goes above and beyond the Open Handset Alliance.
This makes Google's Android hardware platform for devices that are sold "with Google" as much under Google's control as the App Store is under Apple's strict curation.
Apple's chief executive Steve Jobs stated last fall that "Google loves to characterize Android as 'open' and iOS and iPhone as 'closed.' We find this a bit disingenuous and clouding the real difference between our two approaches."
Jobs described various Android app stores as "a mess for both users and developers" and noted that "many Android apps work only on selected handsets, or selected Android versions," alluding to the fact that most Android phones still run an OS release roughly a year old, and often can't be updated for 3 to 6 months after Google makes an update available.
This spring, Google's Android chief Andy Rubin publicly announced an intent to minimize such issues by saying that even the ostensibly open core of Android 3.0 would not be made available to outside programmers for use in unauthorized ways.
Thus, while Apple's "walled garden" ecosystem around the iPhone, iPod touch and iPad limit what third parties can do to Apple's platform and products, Google's Android is already being used to leverage broad competitive control over a wide variety of hardware makers, forcing them to all make products that report data to Google and to change their designs or refuse to do business with other companies on Google's request, under threat of "stop orders" that can prevent the sale of such unapproved devices at any time.