Wednesday, April 13, 2011

RIM's PlayBook tablet raises Android IP questions

Tomorrow (Thursday, April 14), Research In Motion ("RIM") will demo its PlayBook tablet computer to select journalists. The media reports I saw in the build up to its launch mostly express skepticism concerning the market share the PlayBook will be able to attain, but it may nevertheless be bought by a few million BlackBerry loyalists. The aspect of the PlayBook I'm most interested in is its ability to execute Android applications. That feature raises some intellectual property questions that transcend the BlackBerry PlayBook.

In a press release quoted by BusinessInsider and other media, RIM said the following about the PlayBook:

"RIM will launch two optional 'app players' that provide an application run-time environment for BlackBerry Java® apps and Android v2.3 apps. These new app players will allow users to download BlackBerry Java apps and Android apps from BlackBerry App World and run them on their BlackBerry PlayBook."

A marketing-driven decision that won't pay off for RIM

Note that the emulation of Android on the PlayBook will only relate to Android version 2.3 (Gingerbread). However, those apps are typically optimized only for smartphones, not tablets -- for tablet apps, developers would write for Android version 3.0 (Honeycomb, the one that became known for Google's blatant non-compliance with open source principles). At this stage there aren't many Honeycomb apps, but if Android developers want to optimize for tablets, they'll likely create Honeycomb versions of their software.

So this is going to be of very limited practical use to its customers because the apps they get were developed for a completely different form factor. This is the kind of decision that some marketing-oriented executives tend to take when they just look for a shortcut that allows them to respond to an objection that something is lacking. Speaking from a quarter century of experience in this industry, those decisions are a sign of desperation and almost always fail to produce the desired results. Most of the time, those measures are actually counterproductive and serve to accelerate a company's decline.

In this case, BlackBerry's decision-makers know that their biggest strategic issue -- thus the #1 objection they face from journalists, carriers and retailers -- is that this industry is now all about ecosystems. RIM boasts relationships with 500 carriers or so around the globe -- but that's a result of a glorious past and not an assurance of a bright future because many of those partners have already placed significant bets on other platforms. As a platform for apps, BlackBerry is hopelessly behind Apple's iOS and Google's Android, and at this stage the most promising platform coming from behind is Windows Phone 7. This article -- published about a month ago -- offers the following prediction:

"However if Microsoft's app store continues to grow at its current momentum of 3,000 new apps every month, we could witness Windows Phone 7 stealing the bronze away from Blackberry in about 6 months (if not sooner)."

I guess that trend is due to the combination of the Nokia-Microsoft partnership, Microsoft's huge developer base (even if most of those programmers didn't develop for Windows Phone in the past, ever more of them are looking at WP7), and the fact that Microsoft is always a force to be reckoned with (its Xbox game console also took time to succeed but is now outselling its competitors in key markets).

By contrast, there's now a serious risk that going forward RIM will basically just serve the most loyal part of its customer base, which will erode by the day. The launch of the PlayBook may be RIM's last chance to counter that trend, and since it is such a critical mission for that company, its leadership apparently thought it was a very smart move to provide some kind of compatibility with (pre-Honeycomb) Android apps. They can now claim that their product is capable of running a vast number of different apps, which is theoretically true although pointless and misguided in practical terms.

Those marketing tricks rarely worked out in the past, and in today's environment, in which word-of-mouth is a more powerful force than ever, this just won't work. They can run their company that way -- it's the only North American company I've ever seen to have two CEOs, so maybe they also need two app run-time environments. They just can't deliver a superior user experience without native and tablet-optimized apps. Nevertheless the intellectual property questions this approach raises are interesting and important. They will likely also come up, in one way or another, in connection with other devices than the PlayBook.

Does RIM have a license to run Android apps -- and from whom?

On March 30, 2011, I sent RIM's PR agency several questions about the licensing situation concerning Android apps on the PlayBook. I didn't get any answer. Oher companies (including MPEGLA) have in the past responded to my inquiries, so I believe they just didn't want to comment on the licensing situation. Under the circumstances I'll just share my views on what I consider to be likely possibilities.

It's pretty certain that RIM doesn't have any deal in place for this with Google. RIM doesn't use the Google or Android trademarks in a way for which it would need a license. It will offer apps through its own app store (as the press released quote further above indicated), not the official Android Market. And even if the platform was 100% compatible with Android (which it probably isn't anyway, considering that developers must recompile their Android apps for the PlayBook), I guess Google wouldn't certify the PlayBook as an Android device since it's essentially a different system, even if it can run Android apps.

If Google owned any patents that it could assert against RIM, it might decide not to do so until emulators like the one provided by the PlayBook materially adversely affect Android's market share. But I doubt Google even owns any such IP since Android's app platform is much more of a rip-off than a result of original innovation. If anyone owns patents that RIM would have to fear, it's probably Oracle, which is suing Google over seven virtual machine patents allegedly infringed by Android's Dalvik component, and possibly Gemalto, which is suing Google, Samsung, Motorola and HTC over closely related patents.

RIM has a Java license deal in place with Oracle for the BlackBerry platform. Java is the primary programming language for native BlackBerry apps.

I have no doubt that RIM is already paying Oracle a license fee for each BlackBerry device, including the upcoming PlayBook. However, a Java license doesn't mean that a company is free to use any of Oracle's virtual machine patents any way it pleases. Those licenses come with clear field-of-use restrictions and compatibility requirements. I strongly doubt that a standard Java license would allow BlackBerry to sell on the same device, besides its certified Java app platform for native BlackBerry apps, an Android emulator that infringes any of Oracle's patents.

RIM's Java license deal with Oracle

I wish RIM's PR agency had responded to my questions so I wouldn't have to speculate here. Without their answers, I can imagine different approaches taken by Oracle. One possibility is that RIM contacted Oracle beforehand and received permission to do this, with or without having to pay a premium royalty for each PlayBook unit. This kind of arrangement would make sense if Oracle considered RIM a valued customer (in terms of a Java licensee) and determined that the emulation of Android apps on the PlayBook isn't going to pose a serious threat to Oracle's control over Java.

Oracle would not want to create a precedent that Google can use against it in their litigation, but it might have structured its agreement with RIM in a way that prevents such negative effects. For example, it's fairly possible that RIM promised to Oracle to respect its control over Java and make any technical changes to its app platform that a possible settlement between Oracle and Google may also impose on Google. Such a promise wouldn't hurt RIM because all they want to be is Android-compatible, so if Android itself has to change, RIM's Android emulator will have to change accordingly at any rate.

I doubt that RIM did this without discussing it with Oracle at least on an informal basis. RIM knows what it's like to be sued for patent infringement and face an impending shutdown of its system. RIM also needs to continue to work with Oracle because of its Java license for native BlackBerry apps. Therefore, I don't think RIM takes any chances of being sued by Oracle over this: if things came to worst, RIM could lose its Java license.

RIM may, however, take its chances in connnection with third-party claims, such as by Gemalto. The BlackBerry company may ultimately find that emulating Android gets more expensive than anticipated. Since RIM presumably views its Android emulator only as a temporary crutch, it's possible that RIM doesn't care today about whether it may lose a lawsuit a few years down the road. By then RIM probably hopes to have enough native PlayBook apps to no longer need its Android emulation. And given market dynamics, it's also possible that RIM will no longer be an independent company at that stage.

Whatever the licensing situation is, it's really absurd that a company like RIM that makes Android apps run on its platform doesn't have to worry about intellectual property rights held by the maker of Android, Google, but must clear those rights with third parties like Oracle and Gemalto. It's yet another indication of intellectual property being Google's number one strategic weakness.

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