Category Archives: Competition

The EU’s Android Mistake

The European Commission announced this morning that its preliminary finding in its investigation of alleged anti-competitive practices by Google in relation to its Android operating system is that Google is indeed breaching EU rules. The action from the EU is misguided and unnecessary, but it will likely be disruptive to Google and have several unintended consequences anyway.

A quick primer

Note: I’m including links to three relevant Commission documents at the end of this piece, in case you want to read the sources.

As a brief primer on the basis for the Commission’s action here, having a dominant market share is not itself grounds for intervention, but abusing that dominant position is. The argument here is that Google is indeed abusing that dominant position by leveraging its high market share in mobile operating systems to force OEMs to pre-install Google services on their devices in return for being able to use the package of Google mobile services including the Play store, search, and so on. Specifically, the Commission has three objections here:

  • That Google forces OEMs who wish to license Android with the standard Google apps to pre-install the Google Search and Chrome apps and set Google search as the default
  • That Google won’t allow OEMs to sell phones using this flavor of Android as well as flavors based on AOSP
  • That Google pays OEMs to exclusively pre-install the Google Search app.

The key to the EU’s finding that Google has dominant market share is a narrow definition of the relevant market here. Instead of treating mobile operating systems as a whole (or even smartphone operating systems) as the relevant market, the Commission has chosen to use “licensable operating systems” as the basis for its determination that Google has dominant market share. In other words, this isn’t about Google’s dominance of consumer mobile operating systems, but about its dominance of the market for operating systems that can be licensed by OEMs. That’s a really important distinction, because it leads to a finding of much higher market share than were the Commission to consider this from a consumer perspective. Specifically, the Commission says that Google has over 90% share on this basis, whereas its consumer market share in the EU is well under that threshold in most markets, including the five largest markets.

This narrow definition also means that the main class of companies the Commission is seeking to protect here is not consumers but OEMs and alternative providers of search and browsers for mobile devices. Clearly, the Commission has some belief that it would be protecting consumers indirectly as well through such action, but it’s important to note the Commission’s primary focus here.

OEM choice

If the Commission’s main focus is on OEMs rather than consumers, it’s worth evaluating that a little. The reality is that OEMs clearly want to license the GMS version of Android, because that’s the version consumers want to buy. As Amazon has demonstrated, versions of Android without Google apps have some appeal, but far less than those versions that enable Google search, Gmail, Google Maps, and so on. Vestager’s statement alludes to a desire by at least some OEMs to use an alternative version of Android based on AOSP (presumably Cyanogen), but doesn’t go into specifics. Are there really many OEMs who would like to use both forms of Android in significant numbers, or is their complaining to the Commission just a way to push back on some of the other aspects of Android licensing they don’t like?

It’s certainly the case that OEMs and Android have a somewhat contentious relationship and Google has exerted more power in those relationships over the last recent years, but the main reason for the change in leverage is that Android OEMs have been so unsuccessful in differentiating their devices and hence making money from Android. Inviting the Commission to take action may be a roundabout way to change the balance of power in that relationship, but it’s not the solution to OEMs’ real problems.

Consumer choice

Here’s the critical point: this initial finding is just the first step – the ultimate outcome (assuming the Commission doesn’t materially change its findings) is that the EU will impose fines and/or force changes to the way Google licenses Android. Specifically, it would likely require the unbundling of the GMS package and the forced pre-installation of Chrome and search, much as Microsoft was forced in the past to provide a version of Windows without Windows Media Player bundled in and later to provide a “ballot box” option for consumers to install the browser of their choice.

The big question here is, of course, whether this would make much of a difference in a world where consumers are already free to install alternatives and set them as defaults if they choose to. There are several competing search engines and browsers in the Play Store today. Of these, the three most prominent search engines (Bing, Yahoo, and DuckDuckGo) each have 1-5 million downloads, while alternative browsers have been more popular:

  • Firefox – 100-500 million installs
  • CM Browser – 10-50 million
  • Opera – 100-500 million
  • Opera Mini – 50-100 million
  • Dolphin – 50-100 million.

On the one hand, then, there seems to be very little demand for alternative search engines on Android smartphones downloaded through the Play Store. And that shouldn’t surprise us, given that the Commission documents also tell us Google search has over 90% market share in the EU. As is the case elsewhere in the world, Google search is the gold standard, and there’s very little reason for most consumers to install an alternative. However, the small number of consumers who want to can do so today.

When it comes to browsers, it’s clear that there is more interest in alternatives, although in fairness many of those downloads of alternative browsers likely happened before Google introduced Chrome to Android and made it broadly available through OEMs. But, again, it’s clear that many consumers have already taken the opportunity to download alternative browsers under the current system. Would materially more consumers install these alternatives under a forced unbundling arrangement, and would the benefits to consumers and/or the browser makers outweigh the damage done to Google’s business through such action?

The Microsoft history

It’s inevitable that there will be comparisons between this case and the EU’s earlier cases against Microsoft. The Windows Media Player case took three years from the formal start to its preliminary decision (although the investigation started well before that), and by the time the process worked itself all the way through the outcome was essentially irrelevant. The market had moved on in such a way that the focus of the case was entirely misguided, and the effect on the market minimal. There’s a danger that the same thing happens here – the case takes years to complete, and by the time it’s completed the competitive dynamics have changed to an extent that things have either sorted themselves out or competitive worries have moved to an entirely different sphere.

One of the reasons for this is that competition and market forces in general had largely taken care of the issue in the interim, and that’s the key here – these markets are so fast moving that any regulatory intervention is likely to take longer and be less effective than simply allowing market forces to take their course. It’s hard to avoid the sense that the EU case is an outgrowth of European antipathy towards big American tech companies rather than a measured response to real abuses of dominance.

The irony of AOSP

One last quick point before I close. The great irony in all this is that Google is being hammered in part because it has always open sourced Android. The existence of AOSP is the crux of the Commission’s second objection to Google’s behavior with regard to Android. Google’s claim to openness is being used as a stick to beat it with. In this sense, being less open would have exposed Google to less criticism from the EU for being anticompetitive. That irony can’t be lost on Google, which could potentially resolve this concern by simply discontinuing the licensing of AOSP. That certainly isn’t the outcome the Commission wants (indeed, it seems to smile on the AOSP project in some of its comments today), but it’s an example of the kind of unintended consequences such action can have.

Links to relevant documents

The Commission has this morning published three separate documents in relation to this proceeding – here are links if you want to read the source material:

Quick Thoughts: Uber competitive practices

I’ve been meaning to try something different on here for a while now. Most of my posts are pretty long and in-depth, but every now and then I have a thought that’s too long to express clearly on Twitter and too short for an in-depth post. Those tend to either go unpublished or crammed awkwardly into a tweet (some of which do go on to become blog posts later). So today’s post is the first in what I think will be a regular series of what I’m calling Quick Thoughts.

Uber is in the news today for some of its more extreme competitive practices. Casey Newton at the Verge published a story, which got a prebuttal from Uber once they knew the story was coming. I encourage you to read both. Most people seem inclined to believe Newton’s piece, though Uber denies some elements of it while almost boasting about others.

Here’s the thing, though: what I think Uber is suffering from here is not so much the specific reporting as the fact that its previous behavior has made it so believable. There are two basic ways to compete in a market: focus on creating the best possible products and promoting them effectively; or spend most of your time focused on your competitors, and tearing them down. Both are common in the consumer technology market, and if we’re honest most companies engage in both to some extent, though the balance between the two varies widely.

But my point here is this: when your whole philosophy is beating the competition at all costs rather than building the best possible product, you create a culture in which employees will always be tempted to cross the line between aggressive and immoral, and between immoral and illegal.

I’ve seen this in lots of environments, perhaps most especially in enterprise software sales. This descent into inappropriate conduct is especially likely if you’re competing in a category where you have relatively little differentiation and a winner-take-all market structure. Uber and Lyft are essentially offering the same product, and trying to use the same basic assets (car owners wanting to earn a little more money) to do it. Potential Uber drivers are also potential Lyft drivers, and vice versa, and the overall supply is limited. Both services benefit from having the largest possible number of drivers on their platform and the smallest possible number on the other platform. It’s a zero-sum game to a great extent, and neither company has significant advantages over the other from a product perspective.

I’ve been a somewhat regular Uber user when I travel on business, and I’ve found the service enormously useful. I like what Uber and Lyft are doing to the transport business. But I really dislike the way they’re choosing to compete, because it leads to the kind of shady business practices Casey Newton’s report highlighted today. Whether or not you believe the individual allegations (I’m inclined to believe them), none of us should be all that happy about the basis on which these two companies are competing. The problem is that it makes for great theater, and much of the tech crowd seems more prone to pull out the popcorn and watch rather than doing anything about it.