Sunday, March 10, 2013

Developer of popular Instapaper app says 'open' has very little to do with anything Google does

Marco Arment, the author of the wildly popular Instapaper app (which is available on multiple platforms including Android), just published a blog post that starts with a link to and quote from an AppleInsider article entitled "Google admits WebM infringes H.264 patents". I also wrote that Google's license deal with MPEG LA is inconsistent with its previous denial of infringement and pointed to a Google email that references (among other things) FRAND licensing terms.

In connection with Google's court-established infringement of IP and, in certain contexts, intentional use of third-party material without a license, Marco thankfully links to my blog (twice).

I encourage you to read the original post, but let me quickly quote the two most important sentences:

"'Open' has very little to do with anything they do. What they're really doing most of the time is trying to gain control of the web for themselves and their products."

Case in point: the Acer-Alibaba-Aliyun story, which has a Chinese ministry concerned over discriminatory access to source code and was recently mentioned by organizations representing American creatives in an amicus curiae brief filed in the Oracle Android/Java copyright infringement case.

Here's a paragraph from Oracle's opening brief in that appeal:

"The Google juggernaut rests on a grand bargain. Google, famously, does not directly charge users. Instead, Google collects information about its users and makes money selling advertising targeted at them. Advertisers pay large sums for that targeting."

(references to appendix omitted for improved flow)

The final paragraph of Marco Arment's post addresses this as well and correctly deescribes the blowback that those criticizing Google face all the time. There are many people out there who, unlike Marco, don't understand that Google has not really come up with a somehow superior business model over traditional (IP-centric) innovation models: a model that allows one company to prosper while making unprecedented contributions to some sort of commons, bringing down prices for consumers while resulting in more innovation. Google's business model is not a perpetual motion machine: by copying Apple's user interface (Android was originally designed to be more BlackBerry-like), by copying many thousands of lines from the Java source code, or by building a key feature of Google Maps on technology that actually belongs to Microsoft, Google makes other companies' creations (even if it still develops a lot of code around it) available "for free" to end users, but once everything others have invested in has been copied, who will invest in the next wave of innovation? (Other than Google with its advertising-centric business model.)

Oracle's appeal brief twice quotes what Oracle Co-President and Chief Financial Officer Safra Catz said in her testimony at last year's Android/Java trial:

"It's pretty hard to compete with free."

There would be nothing wrong with forcing Oracle to compete with free if it didn't have to compete with what is in an important way a copy of its own creation. To be precise, it acquired Java when it bought Sun Microsystems, just like Microsoft acquired Multimap, but paying for intellectual property in an M&A transaction creates a huge incentive for others to create IP, while Google's reckless behavior completely disincentivizes investment in innovation. Why invest if everything you build is for the taking?

From a very short-term perspective, a lot of people think that there's something wrong with companies like Apple, British Telecom, Gemalto, Microsoft, Nokia, Oracle and Skyhook enforcing their intellectual property rights against Google's Android. There are people out there who will celebrate every ruling against an infringement claim (inevitable in this you-win-some-you-lose-some game -- and I obviously don't agree with every one of the allegations brought against Android) as a victory for freedom and openness. But some reasonable IP enforcement, even if it may in two months present Google with the choice of shutting down Google Maps in Germany (there would still be Bing Maps, Nokia Maps etc.) or taking a royalty-bearing license from Microsoft or within about a year may require Google to take a Java license from Oracle lest hundreds of thousands of existing Android apps would suddenly lack a platform to run on, is actually in the public interest. Some reasonable enforcement is, in fact, critical because otherwise Google will break the virtuous circle of innovation generating revenue for its creators that funds the next round of innovation.

Again, Google's approach would be in the public interest if (i) it worked and (ii) Google opened up only its own creations. As Marco Arment points out in his post, "[if Google] really cared about being so 'open', they'd open up a nontrivial part of their business that hasn't already been commoditized, like their searching or advertising algorithms". But that's where Google's confidence in the commercial viability of "free" and "open" apparently ends.

If Google doesn't believe in freedom and openness in its own core business, why are there people and organizations out there who blur the distinction between infringement and openness, between copying and creation, between taking and giving? There are basically three groups. Some are professionally Google-aligned. That's actually the smallest group. The litmus test for that group is where it stands on standard-essential patents (SEPs). Someone isn't intellectually honest, but more likely a corporate shill, if he or she opposes the enforcement of non-SEPs or even advocates the abolition of large parts of the patent system but wants Google, through its Motorola Mobility subsidiary and its primary OEM partner (Samsung), to be able to block sales and imports of its rivals based on SEPs just in order to have leverage to get away with infringement of non-SEPs. The second group of Google friends is larger and consists of highly ideological people who never believed in the concept of intellectual property anyway, just in "sharing" (without considering that something can only be shared if it's created in the first place). The third group, however, is the largest one. Those are people who see the benefits of seemingly getting something "for free" today without thinking about sustainability. All three groups are responsible for the "nasty feedback" Marco mentions in his post, and which I've become accustomed to as well.

[Update] In a retweet of this post, Dennis E. Hamilton described the disastrous implications of Google's approach in four words: "Eating others' seed corn" [/Update]

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