Tuesday, March 5, 2013

Chinese ministry and American creatives criticize Google's heavy-handedness in Aliyun case

Reuters reports on a new white paper by China's Ministry of Industry and Information Technology expressing concern over Google's stranglehold on the Chinese smartphone operating system market and the tight control it exercises over Android despite labeling it as an "open source" platform. In this context, particular concern relates to the treatment of Android forks (derivative operating systems incorporating some or all Android code):

"The paper said Google had discriminated against some Chinese companies developing their operating systems by delaying the sharing of codes. Google had also used commercial agreements to restrain the business development of mobile devices of these companies, it added."

On ChinaScope Financial I found an article on the same subject that specifically mentions the Acer-Aliyun case I blogged about in September:

"[S]ome OS [= operating system] research enterprises are facing discriminations from Google. On September 13, 2012, the OS developer AliCloud cancelled the launch of a new smartphone model equipped with Aliyun OS because of pressure from Google."

Google's conduct in this case -- bullying Acer to prevent the Aliyun platform from becoming more popular -- has recently also been criticized by organizations representing American creatives. The Picture Archive Council of America and the Graphic Artists Guild submitted amicus curiae briefs in support of Oracle in the Android/Java copyright infringement case against Google. ArsTechnica published the creatives' brief, which asks the Federal Circuit to reverse the district court's ruling on copyrightability and (which the brief focuses on almost entirely) its denial of a judgment as a matter of law on "fair use", a Google defense on which the jury reached no agreement. The creatives believe that District Judge William Alsup had not given enough thought to the wider implications of his decisions in this case for the income source of photographers and designers:

"The members of Amici [the two organizations who submitted the brief] depend on the licensing of their photographs and other creative works in order to support themselves. Licensing images for multiple purposes to a rich variety of customers generates revenue that they use to maintain themselves and to support their ongoing activities. By finding elements of Oracle's Java packages uncopyrightable, the district court's opinion evidences little respect for the creativity involved in Oracle's works. Of more immediate concern to Amici, however, is that the district court, in denying Oracle's motion for judgment as a matter of law on fair use, failed to appreciate that if Google's actions vis-à-vis Oracle are considered to be fair use, it would undermine copyright protection not only for computer programs but for all creative works. It cannot be a fair use to take the most valuable part of a work -- here, the key source code used to create, among other things, applications for mobile devices -- and to use it to undermine the market for the original work. Copyright law is intended to respect and incentivize investment in creative works for the benefit of creators and the public. If this Court affirms the holding of the court below, it will open the door to massive infringements of Amici's protected expression, threaten the ability of Amici’s members to earn a living from their work and limit their ability to bring the benefits of their work to the public. Ultimately, the Amici, all creators, and the public will be harmed."

The creatives' brief explains why Google's use of Java material in Android cannot satisfy any one of the "fair use" factors. In this context the brief accuses Google of hypocrisy given that it had no qualms about fragmenting Java but aggressively combats Android forks:

"Google’s bad faith [vis-à-vis Oracle] is further underscored by its hypocritical reaction to other companies' attempts to create incompatible versions of Android. Ironically, when Google's competitor Alibaba created and sold an incompatible version of Android -- doing to Google precisely what Google did to Oracle -- Google, failing to look into a revealing mirror, threatened to cut off any of its licensees who did business with Alibaba. See Roger Cheng, Google: Alibaba's OS is an incompatible version of Android, CNET News (Sept. 14, 2012), http://news.cnet.com/8301-1035_3-57513559-94/google-alibabas-os-is-an-incompatible-version-of-android/. At the time Google said in a statement, 'Compatibility is at the heart of the Android ecosystem and ensures a consistent experience for developers, manufacturers, and consumers . . . Non compatible version [sic] of Android, like [Alibaba's platform] Aliyun, weaken the ecosystem.' Id. Google's statement, however, reveals its Janus-like approach to compatibility, given that it was more than happy to decimate the Java ecosystem, which had existed for decades, in order to create Android."

The final section ("Conclusion") of the creatives' brief mentions Alibaba once again:

"For Google's copying to be fair use would be a perversion of the fair use doctrine and undermine the constitutionally based incentive. There is nothing 'fair' about appropriating the copyrighted works of others to leapfrog the effort necessary to create one's own code and develop one's own community of programmers. There is nothing 'fair' about confusing protectable expression with structural norms that all may use. And there is nothing 'fair' about doing this in a way that 'weakens the ecosystem,' as Google itself stated to Alibaba, to protect its own interests."

(emphasis added)

The Chinese ministry and the organization representing American creatives desire different outcomes, but their positions are not irreconcilable. The creatives would like the United States Court of Appeals for the Federal Circuit to toss Google's "fair use" defense, which in turn would require Google to respect Oracle's intellectual property in Java. The Chinese government would presumably like Google to let local players such as Alibaba fork Android the way Google forked Java. Google made Android available under an open source license that allows the creation of forks, but it's using its market power (such as the dependence of device makers on an official Android license) to ensure that forks will only lead a niche existence. Oracle/Sun also made Java available under an open source license, the General Public License (GPL), but Google did not want to be bound by the GPL's copyleft regime. The creatives' amicus brief also mentions this fact:

"Google requested a license from Oracle because it wanted to use Oracle's Java packages, showing that Google knew a license was required. Google also knew those licenses came with certain conditions. Specifically, if it took a General Public License (or 'GPL') it would need to make any changes available to the open source community [...]"

The Apache license, under which Google published Android, does not come with a contribute-back (copyleft) mechanism.

At the end of the day, China's Ministry of Industry and Information Technology simply wants Google not to exercise more control over Android (through bullying based on its market power) than it has under the Apache license, and the two organizations representing American creatives in the Android/Java case want the Federal Circuit to ensure that Google will either have to stop infringing or take a license, and the license could be a commercial license or Google could also use Java material under the GPL, provided that it contributes back. But Google wants to have it both ways.

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