No predatory pricing in Free Software, the Android case

Google has many legal problems, for some of them I take full credit. Antitrust is one of the most troublesome battlefield for them. Recently, a coalition of competitors under the name of FairSearch has taken on Google on different fronts, including a new antitrust complaint directed to Android. I have written a position paper for FSFE, in my position as General Counsel, urging the Commission to reject it.

I feel I owe some explanation, since I have been, and still am, quite vocal against Google lately. On previous occasions, I had to reply to criticism (almost the same parties) that I was double tongued, now I speak out in anticipation. Any contradictions? Not quite. The advantage of speaking out one's heart is that your words can't be used against you. A few years ago already discussed Oracle and Google, defending both in the light of antitrust problems that layed in front of them. For Oracle, I have done my part, or more than that. Now that the same company is within the odd company that forms FairSearch, I find myself in the opposite field.

It's not easy, some very good friends are on the opposite side with a prominent stance. I don't question their motives, which, knowing them, are entirely well-meaning; I would like to affirm that mine and FSFE's are good, and IMHO true. In the same blog post, actually in the very paragraph above, I discussed Google, predicting we would have ended up more or less as we stand now. That was 4 years ago. In the meantime, Google has done the right thing, promoting Android, which passed from being laughed at to being characterized as "dominant" (yes indeed!). Android is Free Software.

The complaint by FairSearch that we contest is (among other grounds), in a nutshell, that because Android is Free Software, it is gratis, the competition in the proprietary field cannot match this level of pricing, therefore market has less alternatives, thus the consumer suffer from this lack of competition. Now, say what? Surely Google has incentives that comes from its main business, but who says that there is a need to preserve the proprietary competitors, to have competition? Can you cite one example of a proprietary vendor of mobile OS? Yes you can, only one, though. Who is in FairSearch? Precisely, the same company. Now, again, read my blog post "Let's Keep Eye on the Ball", wasn't I clairvoyant?

Our points to dismiss the action are, in a nutshell:

  • The right price for a Free Software application is zero;
  • Any company must be free to release its own software as Free Software. The only condition being that there are no hidden conditions that can be used to make un-free what is released free (this happens by using patents, can't be done using copyright except for future releases):
  • Android is as open as it can be. Proprietary bits are mainly connected to drivers that are provided as such by hardware vendors. Suboptimal, but understandable. Even Linux has them;
  • Android can be easily forked. This provides an incredible peer pressure. If you look at the proprietary alternatives (why do I even use the plural?) you can only take what they give you;
  • Android can be easily personalized. This is the "bloatware" that many vendors feed you to differentiate their offer. But this means that you can make it what you like. Including putting a Facebook interface (bleah!) on it;
  • Google cannot control Android through patents. Google is a licensee of OIN. The main complainant is currently doing the exact reverse: attempting to control its competitor and make it unattractive price-wise by imposing very high patent royalties for questionable reasons. In fact, it is making more money with Android than with its own creation, despite having soft merged with one of the leaders of the smartphone sector, Nokia, which had to scrape both its two (!) Free Software operating systems, to the tune of hundred of millions of "marketing contributions".
  • Inded, this is de facto a continuation of the global patent war in mobile, where Google is on the right side, and Microsoft, Apple, Nokia and a fleet of trolls on the wrong one. Time to get rid of (software) patents, by the way.

Here is the text of FSFE's press release:

In a recent antitrust submission to the European Commission, a Microsoft-led coalition falsely claimed that the distribution of Free Software free of charge hurts competition. FSFE has written a letter to the European Commission's competition authorities to refute this claim, and make it clear that Free Software is critical for an open, competitive IT market.

In its letter, FSFE urges the Commission to consider the facts properly before accepting these allegations at face value. "Free Software is a boon for humankind. The only thing that it is dangerous to is Microsoft's hopelessly outdated, restrictive business model," says Karsten Gerloff, FSFE's president.

The so-called "FairSearch" coalition is essentially asking the European Commission to favour a restrictive business model over a liberal one. This is exactly the opposite of what competition regulators should do in order to achieve a fair and open market.

"Free Software is not about price, it's about liberty, a guarantee of competition and vendor independence. Asking to cripple Free Software in order to allow proprietary vendors to sell their locked-down systems is just absurd" says Carlo Piana, FSFE's General Counsel. "The most substantial threat to competition in the mobile space today are software patents, and we have repeatedly urged antitrust authorities to address this problem," he adds.

FSFE asks the European Commission to dismiss the "FairSearch" coalition's unfounded claims regarding predatory pricing, and not make them part of whatever steps it decides to take in response to the group's filing.

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