antitrust
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Startups are but one species in a complex regulatory and public policy ecosystem. This ecosystem is larger and more powerfully dynamic than many founders appreciate, with distinct yet overlapping laws at the federal, state and local/city levels, all set against a vast array of public and private interests. Where startup founders see opportunity for disruption in regulated markets, lawyers counsel prudence: regulations exist to promote certain strongly-held public policy objectives which (unlike your startup’s business model) carry the force of law.
Snapshot of the regulatory and public policy ecosystem. Image via Law Office of Daniel McKenzie
Although the canonical “ask forgiveness and not permission” approach taken by Airbnb and Uber circa 2009 might lead founders to conclude it is strategically acceptable to “move fast and break things” (including the law), don’t lose sight of the resulting lawsuits and enforcement actions. If you look closely at Airbnb and Uber today, each have devoted immense resources to building regulatory and policy teams, lobbying, public relations, defending lawsuits, while increasingly looking to work within the law rather than outside it – not to mention, in the case of Uber, a change in leadership as well.
Indeed, more recently, examples of founders and startups running into serious regulatory issues are commonplace: whether in healthcare, where CEO/Co-founder Conrad Parker was forced to resign from Zenefits and later fined approximately $500K; in the securities registration arena, where cryptocurrency startups Airfox and Paragon have each been fined $250K and further could be required to return to investors the millions raised through their respective ICOs; in the social media and privacy realm, where TikTok was recently fined $5.7 million for violating COPPA, or in the antitrust context, where tech giant Google is facing billions in fines from the EU.
Suffice it to say, regulation is not a low-stakes table game. In 2017 alone, according to Duff and Phelps, US financial regulators levied $24.4 billion in penalties against companies and another $621.3 million against individuals. Particularly in today’s highly competitive business landscape, even if your startup can financially absorb the fines for non-compliance, the additional stress and distraction for your team may still inflict serious injury, if not an outright death-blow.
The best way to avoid regulatory setbacks is to first understand relevant regulations and work to develop compliant policies and business practices from the beginning. This article represents a step in that direction, the fifth and final installment in Extra Crunch’s exclusive “Startup Law A to Z” series, following previous articles on corporate matters, intellectual property (IP), customer contracts and employment law.
Given the breadth of activities subject to regulation, however, and the many corresponding regulations across federal, state, and municipal levels, no analysis of any particular regulatory framework would be sufficiently complete here. Instead, the purpose of this article is to provide founders a 30,000-foot view across several dozen applicable laws in key regulatory areas, providing a “lay of the land” such that with some additional navigation and guidance, an optimal course may be charted.
The regulatory areas highlighted here include: (a) Taxes; (b) Securities; (c) Employment; (d) Privacy; (e) Antitrust; (f) Advertising, Commerce and Telecommunications; (g) Intellectual Property; (h) Financial Services and Insurance; and finally (i) Transportation, Health and Safety.
Of course, some regulations may touch on multiple regulatory areas, for example, the “Fair Credit Reporting Act” is a law ultimately about privacy, but it impacts many financial and employment-related services as well. Certain laws may therefore be cross-listed in more than one regulatory area. Also, since we can’t look at every U.S. state and city, this article will focus primarily on the federal and California state laws.
After you focus on the particular regulatory areas that may implicate your business, next reference the short quotations and links to relevant primary and secondary sources below, then work to identify the specific compliance risks you face. This is where other Extra Crunch resources can help. For example, the Verified Experts of Extra Crunch include some of the most experienced and skilled startup lawyers in practice today. Use these profiles to identify attorneys who are focused on serving companies at your particular stage and then seek out any further guidance you need to address the regulatory matters pertinent to your startup.
With that as context, the Startup Law A to Z – Regulatory Compliance checklist is below:
Before diving into further detail, it may be helpful for some readers to note the distinction between a law and a regulation. Simply put, regulations provide more detailed direction on how certain laws should be followed. So regulations are not technically laws, but they carry the force of law (including penalties for violation), since they are adopted by governmental agencies under authority granted by statute. Beyond that, understanding how laws and regulations are actually enacted is helpful to illustrate the extent to which the process is politically driven.
In the U.S., a bill must first pass both legislative branches of government, then, if signed by the executive branch, it will be codified in statute as law (Schoolhouse Rock anyone?). Once codified, the legislative branch will authorize the relevant executive department or agency to determine whether specific regulations are necessary to give the law effect. If so, those executive departments or agencies will determine what further rules are needed, and in turn, work to enforce them.
At the federal level, for example, proposed regulations are developed first through a “Notice of Proposed Rulemaking,” listed in the Federal Register and filed in the corresponding executive agency’s official docket (available at Regulations.gov). This affords the public an opportunity to comment on the regulations. After receiving comments, the filing agency may revise the proposed regulation before final rules are issued, which again will be published in the Federal Register and then filed in the agency’s official docket at Regulations.gov, before they are codified in the Code of Federal Regulations (CFR).
At nearly every step in this process then, institutions, government, and interest groups are working – sometimes at cross purposes – to shape what the law will be and how it will impact your startup.
The Startup Law A to Z – Regulatory Compliance reference guide is below:
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Google is widely expected to be handed a third antitrust fine in Europe this week, with reports suggesting the European Commission’s decision in its long-running investigation of AdSense could land later today.
Right on cue the search giant has PRed another Android product tweak — which it bills as “supporting choice and competition in Europe”.
In the coming months Google says it will start prompting users of existing and new Android devices in Europe to ask which browser and search apps they would like to use.
This follows licensing changes for Android in Europe which Google announced last fall, following the Commission’s $5BN antitrust fine for anti-competitive behavior related to how it operates the dominant smartphone OS.
tl;dr competition regulation can shift policy and product.
Albeit, the devil will be in the detail of Google’s self-imposed ‘remedy’ for Android browser and search apps.
Which means how exactly the user is prompted will be key — given tech giants are well-versed in the manipulative arts of dark pattern design, enabling them to create ‘consent’ flows that deliver their desired outcome.
A ‘choice’ designed in such a way — based on wording, button/text size and color, timing of prompt and so on — to promote Google’s preferred browser and search app choice by subtly encouraging Android users to stick with its default apps may not actually end up being much of a ‘choice’.
According to Reuters the prompt will surface to Android users via the Play Store. (Though the version of Google’s blog post we read did not include that detail.)
Using the Play Store for the prompt would require an Android device to have Google’s app store pre-loaded — and licensing tweaks made to the OS in Europe last year were supposedly intended to enable OEMs to choose to unbundle Google apps from Android forks. Ergo making only the Play Store the route for enabling choice would be rather contradictory. (As well as spotlighting Google’s continued grip on Android.)
Add to that Google has the advantage of massive brand dominance here, thanks to its kingpin position in search, browsers and smartphone platforms.
So again the consumer decision is weighted in its favor. Or, to put it another way: ‘This is Google; it can afford to offer a ‘choice’.’
In its blog post getting out ahead of the Commission’s looming AdSense ruling, Google’s SVP of global affairs, Kent Walker, writes that the company has been “listening carefully to the feedback we’re getting” vis-a-vis competition.
Though the search giant is actually appealing both antitrust decisions. (The other being a $2.7BN fine it got slapped with two years ago for promoting its own shopping comparison service and demoting rivals’.)
“After the Commission’s July 2018 decision, we changed the licensing model for the Google apps we build for use on Android phones, creating new, separate licenses for Google Play, the Google Chrome browser, and for Google Search,” Walker continues. “In doing so, we maintained the freedom for phone makers to install any alternative app alongside a Google app.”
Other opinions are available on those changes too.
Such as French pro-privacy Google search rival Qwant, which last year told us how those licensing changes still make it essentially impossible for smartphone makers to profit off of devices that don’t bake in Google apps by default. (More recently Qwant’s founder condensed the situation to “it’s a joke“.)
Qwant and another European startup Jolla, which leads development of an Android alternative smartphone platform called Sailfish — and is also a competition complainant against Google in Europe — want regulators to step in and do more.
The Commission has said it is closely monitoring changes made by Google to determine whether or not the company has complied with its orders to stop anti-competitive behavior.
So the jury is still out on whether any of its tweaks sum to compliance. (Google says so but that’s as you’d expect — and certainly doesn’t mean the Commission will agree.)
In its Android decision last summer the Commission judged that Google’s practices harmed competition and “further innovation” in the wider mobile space, i.e. beyond Internet search — because it prevented other mobile browsers from competing effectively with its pre-installed Chrome browser.
So browser choice is a key component here. And ‘effective competition’ is the bar Google’s homebrew ‘remedies’ will have to meet.
Still, the company will be hoping its latest Android tweaks steer off further Commission antitrust action. Or at least generate more fuzz and fuel for its long-game legal appeal.
Current EU competition commissioner, Margrethe Vestager, has flagged for years that the division is also fielding complaints about other Google products, including travel search, image search and maps. Which suggests Google could face fresh antitrust investigations in future, even as the last of the first batch is about to wrap up.
The FT reports that Android users in the European economic area last week started seeing links to rival websites appearing above Google’s answer box for searches for products, jobs or businesses — with the rival links appearing above paid results links to Google’s own services.
The newspaper points out that tweak is similar to a change promoted by Google in 2013, when it was trying to resolve EU antitrust concerns under the prior commissioner, Joaquín Almunia.
However rivals at the time complained the tweak was insufficient. The Commission subsequently agreed — and under Vestager’s tenure went on to hit Google with antitrust fines.
Walker doesn’t mention these any of additional antitrust complaints swirling around Google’s business in Europe, choosing to focus on highlighting changes it’s made in response to the two extant Commission antitrust rulings.
“After the Commission’s July 2018 decision, we changed the licensing model for the Google apps we build for use on Android phones, creating new, separate licenses for Google Play, the Google Chrome browser, and for Google Search. In doing so, we maintained the freedom for phone makers to install any alternative app alongside a Google app,” he writes.
Nor does he make mention of a recent change Google quietly made to the lists of default search engine choices in its Chrome browser — which expanded the “choice” he claims the company offers by surfacing more rivals. (The biggest beneficiary of that tweak is privacy search rival DuckDuckGo, which suddenly got added to the Chrome search engine lists in around 60 markets. Qwant also got added as a default choice in France.)
Talking about Android specifically Walker instead takes a subtle indirect swipe at iOS maker Apple — which now finds itself the target of competition complaints in Europe, via music streaming rival Spotify, and is potentially facing a Commission probe of its own (albeit, iOS’ marketshare in Europe is tiny vs Android). So top deflecting Google.
“On Android phones, you’ve always been able to install any search engine or browser you want, irrespective of what came pre-installed on the phone when you bought it. In fact, a typical Android phone user will usually install around 50 additional apps on their phone,” Walker writes, drawing attention to the fact that Apple does not offer iOS users as much of a literal choice as Google does.
“Now we’ll also do more to ensure that Android phone owners know about the wide choice of browsers and search engines available to download to their phones,” he adds, saying: “This will involve asking users of existing and new Android devices in Europe which browser and search apps they would like to use.”
We’ve reached out to Commission for comment, and to Google with questions about the design of its incoming browser and search app prompts for Android users in Europe and will update this report with any response.
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With the smartphone operating system market sewn up by Google’s Android platform, which has a close to 90% share globally, leaving Apple’s iOS a slender (but lucrative) premium top-slice, a little company called Jolla and its Linux-based Sailfish OS is a rare sight indeed: A self-styled ‘independent alternative’ that’s still somehow in business.
The Finnish startup’s b2b licensing sales pitch is intended to appeal to corporates and governments that want to be able to control their own destiny where device software is concerned.
And in a world increasingly riven with geopolitical tensions that pitch is starting to look rather prescient.
Political uncertainties around trade, high tech espionage risks and data privacy are translating into “opportunities” for the independent platform player — and helping to put wind in Jolla’s sails long after the plucky Sailfish team quit their day jobs for startup life.
Jolla was founded back in 2011 by a band of Nokia staffers who left the company determined to carry on development of mobile Linux as the European tech giant abandoned its own experiments in favor of pivoting to Microsoft’s Windows Phone platform. (Fatally, as it would turn out.)
Nokia exited mobile entirely in 2013, selling the division to Microsoft. It only returned to the smartphone market in 2017, via a brand-licensing arrangement, offering made-in-China handsets running — you guessed it — Google’s Android OS.
If the lesson of the Jolla founders’ former employer is ‘resistance to Google is futile’ they weren’t about to swallow that. The Finns had other ideas.
Indeed, Jolla’s indie vision for Sailfish OS is to support a whole shoal of differently branded, regionally flavored and independently minded (non-Google-led) ecosystems all swimming around in parallel. Though getting there means not just surviving but thriving — and doing so in spite of the market being so thoroughly dominated by the U.S. tech giant.
TechCrunch spoke to Jolla ahead of this year’s Mobile World Congress tradeshow where co-founder and CEO, Sami Pienimäki, was taking meetings on the sidelines. He told us his hope is for Jolla to have a partner booth of its own next year — touting, in truly modest Finnish fashion, an MWC calendar “maybe fuller than ever” with meetings with “all sorts of entities and governmental representatives”.
Jolla co-founder, Sami Pienimaki, showing off a Jolla-branded handset in May 2013, back when the company was trying to attack the consumer smartphone space.
(Photo credit: KIMMO MANTYLA/AFP/Getty Images)
Even a modestly upbeat tone signals major progress here because an alternative smartphone platform licensing business is — to put it equally mildly — an incredibly difficult tech business furrow to plough.
Jolla almost died at the end of 2015 when the company hit a funding crisis. But the plucky Finns kept paddling, jettisoning their early pursuit of consumer hardware (Pienimäki describes attempting to openly compete with Google in the consumer smartphone space as essentially “suicidal” at this point) to narrow their focus to a b2b licensing play.
The early b2b salespitch targeted BRIC markets, with Jolla hitting the road to seek buy in for a platform it said could be moulded to corporate or government needs while still retaining the option of Android app compatibility.
Then in late 2016 signs of a breakthrough: Sailfish gained certification in Russia for government and corporate use.
Its licensing partner in the Russian market was soon touting the ability to go “absolutely Google-free!“.
Since then the platform has gained the backing of Russian telco Rostelecom, which acquired Jolla’s local licensing customer last year (as well as becoming a strategic investor in Jolla itself in March 2018 — “to ensure there is a mutual interest to drive the global Sailfish OS agenda”, as Pienimäki puts it).
Rostelecom is using the brand name ‘Aurora OS‘ for Sailfish in the market which Pienimäki says is “exactly our strategy” — likening it to how Google’s Android has been skinned with different user experiences by major OEMs such as Samsung and Huawei.
“What we offer for our customers is a fully independent, regional licence and a tool chain so that they can develop exactly this kind of solution,” he tells TechCrunch. “We have come to a maturity point together with Rostelecom in the Russia market, and it was natural move plan together, that they will take a local identity and proudly carry forward the Sailfish OS ecosystem development in Russia under their local identity.”
“It’s fully compatible with Sailfish operating system, it’s based on Sailfish OS and it’s our joint interest, of course, to make it fly,” he adds. “So that as we, hopefully, are able to extend this and come out to public with other similar set-ups in different countries those of course — eventually, if they come to such a fruition and maturity — will then likely as well have their own identities but still remain compatible with the global Sailfish OS.”
Jolla says the Russian government plans to switch all circa 8M state officials to the platform by the end of 2021 — under a project expected to cost RUB 160.2 billion (~$2.4BN). (A cut of which will go to Jolla in licensing fees.)
It also says Sailfish-powered smartphones will be “recommended to municipal administrations of various levels,” with the Russian state planning to allocate a further RUB 71.3 billion (~$1.1BN) from the federal budget for that. So there’s scope for deepening the state’s Sailfish uptake.
Russian Post is one early customer for Jolla’s locally licensed Sailfish flavor. Having piloted devices last year, Pienimäki says it’s now moving to a full commercial deployment across the whole organization — which has around 300,000 employees (to give a sense of how many Sailfish powered devices could end up in the hands of state postal workers in Russia).
A rugged Sailfish-powered device piloted by Russian post
Jolla is not yet breaking out end users for Sailfish OS per market but Pienimäki says that overall the company is now “clearly above” 100k (and below 500k) devices globally.
That’s still of course a fantastically tiny number if you compare it to the consumer devices market — top ranked Android smartphone maker Samsung sold around 70M handsets in last year’s holiday quarter, for instance — but Jolla is in the b2b OS licensing business, not the handset making business. So it doesn’t need hundreds of millions of Sailfish devices to ship annually to turn a profit.
Scaling a royalty licensing business to hundreds of thousands of users is sums to “good business”, , says Pienimäki, describing Jolla’s business model for Sailfish as “practically a royalty per device”.
“The success we have had in the Russian market has populated us a lot of interesting new opening elsewhere around the world,” he continues. “This experience and all the technology we have built together with Open Mobile Platform [Jolla’s Sailfish licensing partner in Russia which was acquired by Rostelecom] to enable that case — that enables a number of other cases. The deployment plan that Rostelecom has for this is very big. And this is now really happening and we are happy about it.”
Jolla’s “Russia operation” is now beginning “a mass deployment phase”, he adds, predicting it will “quickly ramp up the volume to very sizeable”. So Sailfish is poised to scale.
While Jolla is still yet to turn a full-year profit Pienimäki says several standalone months of 2018 were profitable, and he’s no longer worried whether the business is sustainable — asserting: “We don’t have any more financial obstacles or threats anymore.”
It’s quite the turnaround of fortunes, given Jolla’s near-death experience a few years ago when it almost ran out of money, after failing to close a $10.6M Series C round, and had to let go of half its staff.
It did manage to claw in a little funding at the end of 2015 to keep going, albeit as much leaner fish. But bagging Russia as an early adopter of its ‘independent’ mobile Linux ecosystem looks to have been the key tipping point for Jolla to be able to deliver on the hard-graft ecosystem-building work it’s been doing all along the way. And Pienimäki now expresses easy confidence that profitability will flow “fairly quickly” from here on in.
“It’s not an easy road. It takes time,” he says of the ecosystem-building company Jolla hard-pivoted to at its point of acute financial distress. “The development of this kind of business — it requires patience and negotiation times, and setting up the ecosystem and ecosystem partners. It really requires patience and takes a lot of time. And now we have come to this point where actually there starts to be an ecosystem which will then extend and start to carry its own identity as well.”
In further signs of Jolla’s growing confidence he says it hired more than ten people last year and moved to new and slightly more spacious offices — a reflection of the business expanding.
“It’s looking very good and nice for us,” Pienimäki continues. “Let’s say we are not taking too much pressure, with our investors and board, that what is the day that we are profitable. It’s not so important anymore… It’s clear that that is soon coming — that very day. But at the same time the most important is that the business case behind is proven and it is under aggressive deployment by our customers.”
The main focus for the moment is on supporting deployments to ramp up in Russia, he says, emphasizing: “That’s where we have to focus.” (Literally he says “not screwing up” — and with so much at stake you can see why nailing the Russia case is Jolla’s top priority.)
While the Russian state has been the entity most keen to embrace an alternative (non-U.S.-led) mobile OS — perhaps unsurprisingly — it’s not the only place in the world where Jolla has irons in the fire.
Another licensing partner, Bolivian IT services company Jalasoft, has co-developed a Sailfish-powered smartphone called Accione.
Jalasoft’s ‘liberty’-touting Accione Sailfish smartphone
It slates the handset on its website as being “designed for Latinos by Latinos”. “The digitalization of the economy is inevitable and, if we do not control the foundation of this digitalization, we have no future,” it adds.
Jalasoft founder and CEO Jorge Lopez says the company’s decision to invest effort in kicking the tyres of Jolla’s alternative mobile ecosystem is about gaining control — or seeking “technological libration” as the website blurb puts it.
“With Sailfish OS we have control of the implementation, while with Android it is the opposite,” Lopez tells TechCrunch. “We are working on developing smart buildings and we need a private OS that is not Android or iOS. This is mainly because our product will allow the end user to control the whole building and doing this with Android or iOS a hackable OS will bring concerns on security.”
Lopez says Jalasoft is using Accione as its development platform — “to gather customer feedback and to further develop our solution” — so the project clearly remains in an early phase, and he says that no more devices are likely to be announced this year.
But Jolla can point to more seeds being sewn with the potential, with work, determination and patience, to sprout into another sizeable crop of Sailfish-powered devices down the line.
Even more ambitiously Jolla is also targeting China, where investment has been taken in to form a local consortium to develop a Chinese Sailfish ecosystem.
Although Pienimäki cautions there’s still much work to be done to bring Sailfish to market in China.
“We completed a major pilot with our licensing customer, Sailfish China Consortium, in 2017-18,” he says, giving an update on progress to date. “The public in market solution is not there yet. That is something that we are working together with the customer — hopefully we can see it later this year on the market. But these things take time. And let’s say that we’ve been somewhat surprised at how complex this kind of decision-making can be.”
“It wasn’t easy in Russia — it took three years of tight collaboration together with our Russian partners to find a way. But somehow it feels that it’s going to take even more in China. And I’m not necessarily talking about calendar time — but complexity,” he adds.
While there’s no guarantee of success for Jolla in China, the potential win is so big given the size of the market that even if they can only carve out a tiny slice, such as a business or corporate sector, it’s still worth going after. And he points to the existence of a couple of native mobile Linux operating systems he reckons could make “very lucrative partners”.
That said, the get-to-market challenge for Jolla in China is clearly distinctly different vs the rest of the world. This is because Android has developed into an independent (i.e. rather than Google-led) ecosystem in China as a result of state restrictions on the Internet and Internet companies. So the question is what could Sailfish offer that forked Android doesn’t already?
An Oppo Android powered smartphone on show at MWC 2017
Again, Jolla is taking the long view that ultimately there will be appetite — and perhaps also state-led push — for a technology platform bolster against political uncertainty in U.S.-China relations.
“What has happened now, in particular last year, is — because of the open trade war between the nations — many of the technology vendors, and also I would say the Chinese government, has started to gradually tighten their perspective on the fact that ‘hey simply it cannot be a long term strategy to just keep forking Android’. Because in the end of the day it’s somebody else’s asset. So this is something that truly creates us the opportunity,” he suggests.
“Openly competing with the fact that there are very successful Android forks in China, that’s going to be extremely difficult. But — let’s say — tapping into the fact that there are powers in that nation that wish that there would be something else than forking Android, combined with the fact that there is already something homegrown in China which is not forking Android — I think that’s the recipe that can be successful.”
Not all Jolla’s Sailfish bets have paid off, of course. An earlier foray by an Indian licensing partner into the consumer handset market petered out. Albeit, it does reinforce their decision to zero in on government and corporate licensing.
“We got excellent business connections,” says Pienimäki of India, suggesting also that it’s still a ‘watch this space’ for Jolla. The company has a “second move” in train in the market that he’s hopeful to be talking about publicly later this year.
It’s also pitching Sailfish in Africa. And in markets where target customers might not have their own extensive in-house IT capability to plug into Sailfish co-development work Pienimäki says it’s offering a full solution — “a ready made package”, together with partners, including device management, VPN, secure messaging and secure email — which he argues “can be still very lucrative business cases”.
Looking ahead and beyond mobile, Pienimäki suggests the automotive industry could be an interesting target for Sailfish in the future — though not literally plugging the platform into cars; but rather licensing its technologies where appropriate — arguing car makers are also keen to control the tech that’s going into their cars.
“They really want to make sure that they own the cockpit. It’s their property, it’s their brand and they want to own it — and for a reason,” he suggests, pointing to the clutch of major investments from car companies in startups and technologies in recent years.
“This is definitely an interesting area. We are not directly there ourself — and we are not capable to extend ourself there but we are discussing with partners who are in that very business whether they could utilize our technologies there. That would then be more or less like a technology licensing arrangement.”
While Jolla looks to be approaching a tipping point as a business, in terms of being able to profit off of licensing an alternative mobile platform, it remains a tiny and some might say inconsequential player on the global mobile stage.
Yet its focus on building and maintaining trusted management and technology architectures also looks timely — again, given how geopolitical spats are intervening to disrupt technology business as usual.
Chinese giant Huawei used an MWC keynote speech last month to reject U.S.-led allegations that its 5G networking technology could be repurposed as a spying tool by the Chinese state. And just this week it opened a cybersecurity transparency center in Brussels, to try to bolster trust in its kit and services — urging industry players to work together on agreeing standards and structures that everyone can trust.
In recent years U.S.-led suspicions attached to Russia have also caused major headaches for security veteran Kaspersky — leading the company to announce its own trust and transparency program and decentralize some of its infrastructure, including by spinning up servers in Europe last year.
Businesses finding ways to maintain and deepen the digital economy in spite of a little — or even a lot — of cross-border mistrust may well prove to be the biggest technology challenge of all moving forward.
Especially as next-gen 5G networks get rolled out — and their touted ‘intelligent connectivity’ reaches out to transform many more types of industries, bringing new risks and regulatory complexity.
The geopolitical problem linked to all this boils down to how to trust increasing complex technologies without any one entity being able to own and control all the pieces. And Jolla’s business looks interesting in light of that because it’s selling the promise of neutral independence to all its customers, wherever they hail from — be it Russia, LatAm, China, Africa or elsewhere — which makes its ability to secure customer trust not just important but vital to its success.
Indeed, you could argue its customers are likely to rank above average on the ‘paranoid’ scale, given their dedicated search for an alternative (non-U.S.-led) mobile OS in the first place.
“It’s one of the number one questions we get,” admits Pienimäki, discussing Jolla’s trust balancing act — aka how it manages and maintains confidence in Sailfish’s independence, even as it takes business backing and code contributions from a state like Russia.
“We tell about our reference case in Russia and people quickly ask ‘hey okay, how can I trust that there is no blackbox inside’,” he continues, adding: “This is exactly the core question and this is exactly the problem we have been able to build a solution for.”
Jolla’s solution sums to one line: “We create a transparent platform and on top of fully transparent platform you can create secure solutions,” as Pienimäki puts it.
“The way it goes is that Jolla with Sailfish OS is always offering the transparent Sailfish operating system core, on source code level, all the time live, available for all the customers. So all the customers constantly, in real-time, have access to our source code. Most of it’s in public open source, and the proprietary parts are also constantly available from our internal infrastructure. For all the customers, at the same time in real-time,” he says, fleshing out how it keeps customers on board with a continually co-developing software platform.
“The contributions we take from these customers are always on source code level only. We don’t take any binary blobs inside our software. We take only source code level contributions which we ourselves authorize, integrate and then we make available for all the customers at the very same moment. So that loopback in a way creates us the transparency.
“So if you want to be suspicion of the contributions of the other guys, so to say, you can always read it on the source code. It’s real-time. Always available for all the customers at the same time. That’s the model we have created.”
“It’s honestly quite a unique model,” he adds. “Nobody is really offering such a co-development model in the operating system business.
“Practically how Android works is that Google, who’s leading the Android development, makes the next release of Android software, then releases it under Android Open Source and then people start to backboard it — so that’s like ‘source, open’ in a way, not ‘open source’.”
Sailfish’s community of users also have real-time access to and visibility of all the contributions — which he dubs “real democracy”.
“People can actually follow it from the code-line all the time,” he argues. “This is really the core of our existence and how we can offer it to Russia and other countries without creating like suspicion elements each side. And that is very important.
“That is the only way we can continue and extend this regional licensing and we can offer it independently from Finland and from our own company.”
With global trade and technology both looking increasingly vulnerable to cross-border mistrust, Jolla’s approach to collaborative transparency may offer something of a model if other businesses and industries find they need to adapt themselves in order for trade and innovation to keep moving forward in uncertain political times.
Last but not least there’s regulatory intervention to consider.
A European Commission antitrust decision against Google’s Android platform last year caused headlines around the world when the company was slapped with a $5BN fine.
More importantly for Android rivals Google was also ordered to change its practices — leading to amended licensing terms for the platform in Europe last fall. And Pienimäki says Jolla was a “key contributor” to the Commission case against Android.
European competition commissioner Margrethe Vestager, on April 15, 2015 in Brussels, as the Commission said it would open an antitrust investigation into Google’s Android operating system. (Photo credit: JOHN THYS/AFP/Getty Images)
The new Android licensing terms make it (at least theoretically) possible for new types of less-heavily-Google-flavored Android devices to be developed for Europe. Though there have been complaints the licensing tweaks don’t go far enough to reset Google’s competitive Android advantage.
Asked whether Jolla has seen any positive impacts on its business following the Commission’s antitrust decision, Pienimäki responds positively, recounting how — “one or two weeks after the ruling” — Jolla received an inbound enquiry from a company in France that had felt hamstrung by Google requiring its services to be bundled with Android but was now hoping “to realize a project in a special sector”.
The company, which he isn’t disclosing at this stage, is interested in “using Sailfish and then having selected Android applications running in Sailfish but no connection with the Google services”.
“We’ve been there for five years helping the European Union authorities [to build the case] and explain how difficult it is to create competitive solutions in the smartphone market in general,” he continues. “Be it consumer or be it anything else. That’s definitely important for us and I don’t see this at all limited to the consumer sector. The very same thing has been a problem for corporate clients, for companies who provide specialized mobile device solutions for different kind of corporations and even governments.”
While he couches the Android ruling as a “very important” moment for Jolla’s business last year, he also says he hopes the Commission will intervene further to level the smartphone playing field.
“What I’m after here, and what I would really love to see, is that within the European Union we utilize Linux-based, open platform solution which is made in Europe,” he says. “That’s why we’ve been pushing this [antitrust action]. This is part of that. But in bigger scheme this is very good.”
He is also very happy with Europe’s General Data Protection Regulation (GDPR) — which came into force last May, plugging in a long overdue update to the bloc’s privacy rules with a much beefed up enforcement regime.
GDPR has been good for Jolla’s business, according to Pienimäki, who says interest is flowing its way from customers who now perceive a risk to using Android if customer data flows outside Europe and they cannot guarantee adequate privacy protections are in place.
“Already last spring… we have had plenty of different customer discussions with European companies who are really afraid that ‘hey I cannot offer this solution to my government or to my corporate customer in my country because I cannot guarantee if I use Android that this data doesn’t go outside the European Union’,” he says.
“You can’t indemnify in a way that. And that’s been really good for us as well.”
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Two older iPhone models are back on sale in Apple stores in Germany — but only with Qualcomm chips inside.
The iPhone maker was forced to pull the iPhone 7 and iPhone 8 models from shelves in its online shop and physical stores in the country last month, after chipmaker Qualcomm posted security bonds to enforce a December court injunction it secured via patent litigation.
Apple told Reuters it had “no choice” but to stop using some Intel chips for handsets to be sold in Germany. “Qualcomm is attempting to use injunctions against our products to try to get Apple to succumb to their extortionist demands,” it said in a statement provided to the news agency.
Apple and Qualcomm have been embroiled in an increasingly bitter global legal battle around patents and licensing terms for several years.
The litigation follows Cupertino’s move away from using only Qualcomm’s chips in iPhones after, in 2016, Apple began sourcing modem chips from rival Intel — dropping Qualcomm chips entirely for last year’s iPhone models. Though still using some Qualcomm chips for older iPhone models, as it will now for iPhone 7 and iPhone 8 units headed to Germany.
For these handsets Apple is swapping out Intel modems that contain chips from Qorvo which are subject to the local patent litigation injunction. (The litigation relates to a patented smartphone power management technology.)
Hence Apple’s Germany webstore is once again listing the two older iPhone models for sale…

Newer iPhones containing Intel chips remain on sale in Germany because they do not containing the same components subject to the patent injunction.
“Intel’s modem products are not involved in this lawsuit and are not subject to this or any other injunction,” Intel’s general counsel, Steven Rodgers, said in a statement to Reuters.
While Apple’s decision to restock its shelves with Qualcomm-only iPhone 7s and 8s represents a momentary victory for Qualcomm, a separate German court tossed another of its patent suits against Apple last month — dismissing it as groundless. (Qualcomm said it would appeal.)
The chipmaker has also been pursing patent litigation against Apple in China, and in December Apple appealed a preliminary injunction banning the import and sales of old iPhone models in the country.
At the same time, Qualcomm and Apple are both waiting the result of an antitrust trial brought against Qualcomm’s licensing terms in the U.S.
Two years ago the FTC filed charges against Qualcomm, accusing the chipmaker of operating a monopoly and forcing exclusivity from Apple while charging “excessive” licensing fees for standards-essential patents.
The case was heard last month and is pending a verdict or settlement.
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Mobile licensing changes made by Google this fall, when it tweaked terms for OEMs wanting to license its Android smartphone platform on devices destined for the European market, don’t appear to be offering succour to search rivals — despite being triggered by an antitrust ruling intended to reset the competitive playing field.
The European Commission found the search giant guilty of anti-competitive practices related to its Android platform this summer, slapping the company with a $5BN fine. The decision required Google cease practices judged to be illegally skewing the market and do so within 90 days.
It was the second such major EC antitrust finding against Google, after last year’s Google Shopping ruling, when the company was warned that having been found dominant in search it had a “special responsibility” to avoid breaching antitrust rules in any market it plays in.
Google disputes the Commission’s findings of competitive abuse in both cases, and has lodged legal appeals.
But the nature of competition law demands action in the meanwhile, given the threat of punitive penalties for any continued breach. So in October Google responded to the Commission’s Android ruling by updating its regional compatibility agreement to provide a route for OEMs to unbundle key services from the Android OS — rather than requiring its suite of Google apps be pre-loaded for devices to get the Play Store.
However it also incorporated licensing fees for some unbundled configurations (e.g. Android + Play Store). At the same time it said it would not charge any fee to include search or Chrome. And it said it was offering incentives for OEMs to place its eponymous, market dominating search engine (and/or browser) prominently on their devices — despite one of the behaviors the Commission judged illegal being payments Google had made to certain large manufacturers and mobile carriers to exclusively pre-install Google Search.
The Commission did not prescribe specific remedies for the anticompetitive behaviours it pegged to Android — saying it’s “Google’s sole responsibility to make sure that it changes its conduct in a way that brings the infringements to an effective end”.
Though it warned it would closely monitor the company’s conduct, noting that any finding of continued non-compliance would risk fresh fines — of up to 5% of the average daily turnover of Alphabet for each day of non-compliance.
The key word there is “effective” — in terms of what the Commission is watching for.
Meanwhile Google’s dominant position in search naturally makes it the smartphone consumer’s go-to choice — which in turn means there’s a natural incentive for device makers not to ditch Google as the search default. At least for mainstream devices.
But Google’s new European licensing terms for Android appear to be piling additional pressure on OEMs not to switch even for more experimental and/or regional device launches, according to privacy-focused search engine Qwant.
The suggestion is Google’s licensing changes have essentially blocked the launch of an Android device with Qwant search rather than Google as the default.
Its experience suggests Google’s initial ‘remedy’ — far from delivering an “effective end” to the competitive infringements the Commission found — is actively steering OEMs away from search alternatives and rival companies.
Qwant, a French startup, launched its non-tracking search offering back in 2013, and has been on a growth tear on its home turf in recent months — winning over high profile users in the public sector as concern has risen about Silicon Valley’s intrusive grip on user data.
The French National Assembly and the French Ministry of the Armed Forces Minister announced this fall they’d switch to Qwant instead of Google as their default.
Of course the startup is still a minnow compared to Google. But it’s growing: Qwant tracks queries rather than users (given it doesn’t track people), and it says it generated 2.6BN queries in 2016; which grew to 9BN last year; and is now on track to end this year with around 18BN queries.
“So if we think about it that means that last year we were three days of Google; this year six days of Google — not so bad!” says co-founder Eric Leandri.
“In France we have now more than 6% of the market,” he continues. “In Germany something like 2%. And we are still growing. We do growth of 20% by month for the last four months. The growth in our revenue is two digit too, by month.”
Earlier this year it had been hoping to make additional regional marketshare gains by securing a deal to be pre-loaded on Android smartphones destined for European markets. A spokesman tells us it has a framework agreement with Huawei. (The Chinese Android OEM is second only to Samsung in global marketshare terms, according to analysts.)
The Commission’s antitrust ruling opened the door to this possibility, given it banned Google from prohibiting OEMs from launching non-Google approved Android forks. So after the ruling things were looking good for Qwant, with the startup on the cusp of securing a device deal for a few European countries, as Leandri tells it.
He blames Google’s licensing changes for putting the kibosh on a launch they’d been expecting to be able to announce in November. Early that month the startup pinged us to trail forthcoming news — of “a major partnership that will allow us to accelerate in the smartphone market” — only to go silent.
A few weeks later it got in touch again to say it had had to postpone the announcement.
“We are very near to one or two deals to be by default or in the list of search engines in some Android cell phone made by a very large Asian manufacturer… Just for Europe, and just for some countries in Europe but we are talking about 10 million or 20 million of cell phones,” says Leandri now.
“And when we have won the bid against Google in October then Google start to say that in Europe you have to pay $40 for Android. So now if you install Qwant you have to pay $40 and if you install Google they give you some cash.”
“Before it was impossible to bid against Google because Google was blocking everything. Now you can — but now the solution of Google is you have to pay $40 if you don’t install Google by default with Chrome just on the bar. You know the bar that is fixed on Android. And this is again an abuse of their dominant position,” he adds.
“Because if I want, for example, 10 million smartphones, the guy has to pay $400M to Google. Do you really think they will pay $400M to Google just to install Qwant?”
Google’s rebuttal of the Commission’s antitrust finding for Android has focused on claims that its approach of free licensing combined with a bundle of Google services has generally enabled competition to thrive in the mobile app ecosystem, as well as claiming lower prices are a “classic hallmark… of robust competition”.
Yet Qwant’s experience offers a clear counterpoint, underlining how challenging it remains to try to compete with Google’s core search business when the same company also dominates the smartphone market and can just throw the levers of Android’s licensing terms to configure how much ‘appetite’ OEMs have for investing in alternative search defaults (given tiny hardware profit margins in the Android space).
After Qwant won over Huawei to building a device with its search engine in prime position, Leandri says it was Google’s changes to the licensing terms for Android that threw a spanner in the works.
“After that pressure then the manufacturer doesn’t know how to react now,” he says, confirming he believes there’s currently no chance for the device to be launched. Not without further changes to how Android operates in the market — i.e. further regulatory intervention.
“So we will work a lot with the European Commission to stop that,” he adds. “But again, again my question is why Google goes that way?”
We reached out to Google to ask about the fees it would charge an OEM wanting to launch an Android device with Google Play but without Google search as the default in Europe.
We also asked how charging a fee for Android if OEMs don’t also bundle Google services can help increase competition, per the Commission’s intention.
At the time of writing Google had not responded to our questions.
We also reached out to Huawei for comment and will update this story with any response.
Even if Qwant and Huawei get their way, and European buyers in a handful of countries are able to choose to buy an Android device with a little search localization as its differentiating out-of-the-box twist, Leandri isn’t under any illusions that a majority of consumers will still switch back to Google of their own accord — given its dominance of search.
He reckons those who’d stick with a non-Google search choice might be as low as a third or 40%.
But his point is that, as it stands, Qwant doesn’t even have the chance to try competing against the Google Goliath on its own terms. And he argues that’s simply not fair.
“Google has billions to make advertisement to ask people to switch, right. And they can even do advertisement on the Play Store for zero because they control the Play Store. Why they don’t come back to a normal market where we are all on the same line and they just compete with advertisement, with pushing their products, with a better proposition of value. It’s crazy, it’s crazy!” he says.
“They have 95% of the market, and on that market they expect that if they don’t have the search by default there then they don’t do money with the Play Store. This is bullshit. They do billions of euros with the app on the Play Store each year. With the 30% that they take on the apps. So this is not true. This is not true, sorry.
“So right now this is our goal and my main work actually is just to obtain the right to have a fair competition — a simple, fair competition.”
“I don’t want to dismantle Google. I don’t want Google to be fined 10BN. I don’t care. The only thing I want is to have the right to have a fair competition,” he adds.
We asked the European Commission to respond to Qwant’s experience, and for an update on its monitoring of Google’s compliance with the Android antitrust ruling.
A spokeswoman declined to comment on an individual case but we understand the Commission has been sending questionnaires to market players as part of its compliance monitoring.
It’s clear the regulator’s intention with the Android decision was to expand consumer choice by creating opportunities for competition that didn’t exist before — including for rival search and browser providers to be able to compete on the merits with Google when it comes to pre-loading their products on Android devices.
So if the Commission’s monitoring efforts confirm instances where competition is being blocked, as appears the case here with Qwant, further interventions will surely follow.
Leandri also points out that Google made much the same arguments vis-a-vis ‘fair competition’ more than a decade ago — when it called for the then computing incumbent, Microsoft, not to stand in the way of Internet upstarts by bundling MSN search into its Internet Explorer web browser.
“The market favors open choice for search, and companies should compete for users based on the quality of their search services,” said Marissa Mayer in 2006, then Google’s vice president for search products. “We don’t think it’s right for Microsoft to just set the default to MSN. We believe users should choose.”
“I totally agree with what they say in 2006! Just exchange Microsoft for Google and that’s it!” he says now, adding: “We have to fight because there is not a lot of other way. But I stop fighting tomorrow as soon as I have a fair competition.
“I’m not waiting for the Commission to make the competition. Right now the percentage of growth that I have in France it’s not based on the Commission who has won or not. It’s based on our value proposition.”
Leandri is also president of the Open Internet Project, a European organization whose members lobby for regulatory action to rein in what they view as Google’s abusive dominance of digital markets, and which was also involved in the Google Shopping complaints — though he points out that in the Android case three of the five complainants are American.
“We are the only European. So the problem is not only for a small startup in Europe. Who, y’know, complained because ‘Google is so cool’. And we are so dumb. And so ridiculous. But the problem is for Oracle, it’s for the Fair Search. It’s not for kids.”
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Google has announced changes to the licensing model for its Android mobile operating system in Europe, including introducing a fee for licensing some of its own brand apps, saying it’s doing so to comply with a major European antitrust ruling this summer.
In July the region’s antitrust regulators hit Google with a recordbreaking $5BN fine for violations pertaining to Android, finding the company had abused the dominance of the platform by requiring manufacturers pre-install other Google apps in order to license its popular Play app store.
Regulators also found Google had made payments to manufacturers and mobile network operators in exchange for exclusively pre-installing Google Search on their devices, and used Play store licensing to prevent manufacturers from selling devices based on Android forks.
Google disputes the Commission’s findings, and last week filed its appeal — a legal process that could take years. But in the meanwhile it’s making changes to how it licenses Android in Europe to avoid the risk of additional penalties heaped on top of the antitrust fine.
Hiroshi Lockheimer, Google’s senior vice president of platforms & ecosystems, revealed the new licensing options in a blog post published today.
Under updated “compatibility agreements”, he writes that mobile device makers will be able to build and sell Android devices intended for the European Economic Area (EEA) both with and without Google mobile apps preloaded — something Google’s same ‘compatibility’ contracts restricted them from doing before, when it was strictly either/or (either you made Android forks, or you made Android devices with Google apps — not both).
“Going forward, Android partners wishing to distribute Google apps may also build non-compatible, or forked, smartphones and tablets for the European Economic Area (EEA),” confirms Lockheimer.
However the company is also changing how it licenses the full Android bundle — which previously required OEMs to load devices with the Google mobile application suite, Google Search and the Chrome browser in order to be able to offer the popular Play Store — by introducing fees for OEMs wanting to pre-load a subset of those same apps under “a new paid licensing agreement for smartphones and tablets shipped into the EEA”.
Though Google stresses there will be no charge for using the Android platform itself. (So a pure fork without any Google services preloaded still wouldn’t require a fee.)
Google also appears to be splitting out Google Search and Chrome from the rest of the Google apps in its mobile suite (which traditionally means stuff like YouTube, the Play Store, Gmail, Google Maps, although Lockheimer’s blog post does not make it clear which exact apps he’s talking about) — letting OEMs selectively unbundle some Google apps, albeit potentially for a fee, depending on the apps in question.
“[D]evice manufacturers will be able to license the Google mobile application suite separately from the Google Search App or the Chrome browser,” is what Lockheimer unilluminatingly writes.
Perhaps Google wants future unbundled Android forks to still be able to have Google Search or Chrome, even if they don’t have the Play store, but it’s really not at all clear which configurations of Google apps will be permitted under the new licensing terms, and which won’t.
“Since the pre-installation of Google Search and Chrome together with our other apps helped us fund the development and free distribution of Android, we will introduce a new paid licensing agreement for smartphones and tablets shipped into the EEA. Android will remain free and open source,” Lockheimer adds, without specifying what the fees will be either.
“We’ll also offer new commercial agreements to partners for the non-exclusive pre-installation and placement of Google Search and Chrome. As before, competing apps may be pre-installed alongside ours,” he continues to complete his trio of poorly explained licensing changes.
We’ve asked Google to clarify the various permitted and not permitted app configurations, as well as which apps will require a fee (and which won’t), and how much the fees will be, and will update this post with any response.
The devil in all those details should become clear soon though, as Google says the new licensing options will come into effect on October 29 for all new (Android based) smartphones and tablets launched in the EEA.
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Google has lodged its legal appeal against the European Commission’s €4.34 billion (~$5BN) antitrust ruling against its Android mobile OS, according to Reuters — the first step in a process that could keep its lawyers busy for years to come.
“We have now filed our appeal of the EC’s Android decision at the General Court of the EU,” it told the news agency, via email.
We’ve reached out to Google for comment on the appeals process.
Rulings made by the EU’s General Court in Luxembourg can be appealed to the top court, the Court of Justice of the European Union, but only on points of law.
Europe’s competition commissioner, Margrethe Vestager, announced the record-breaking antitrust penalty for Android in July, following more than two years of investigation of the company’s practices around its smartphone operating system.
Vestager said Google had abused the regional dominance of its smartphone platform by requiring that manufacturers pre-install other Google apps as a condition for being able to license the Play Store.
She also found the company had made payments to some manufacturers and mobile network operators in exchange for them exclusively pre-installing Google Search on their devices, and used Google Play licensing to prevent manufacturers from selling devices based on Android forks — which would not have to include Google services and, in Vestager’s view, “could have provided a platform for rival search engines as well as other app developers to thrive”.
Google rejected the Commission’s findings and said it would appeal.
In a blog post at the time, Google CEO Sundar Pichai argued the contrary — claiming the Android ecosystem has “created more choice, not less” for consumers, and saying the Commission ruling “ignores the new breadth of choice and clear evidence about how people use their phones today”.
According to Reuters the company reiterated its earlier arguments in reference to the appeal.
A spokesperson for the EC told us simply: “The Commission will defend its decision in Court.”
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In other news bears shit in the woods. In today’s second-day President Trump news: ‘The Donald’ has seized, belatedly, on the European Commission’s announcement yesterday that Google is guilty of three types of illegal antitrust behavior — with its Android OS, since 2011 — and that it is fining the company $5 billion; a record-breaking penalty which the Commission’s antitrust chief, Margrethe Vestager, said reflects the length and gravity of the company’s competition infringements.
Trump is not! at all! convinced! though!
“I told you so!” he has tweeted triumphantly just now. “The European Union just slapped a Five Billion Dollar fine on one of our great companies, Google . They truly have taken advantage of the U.S., but not for long!”
I told you so! The European Union just slapped a Five Billion Dollar fine on one of our great companies, Google. They truly have taken advantage of the U.S., but not for long!
— Donald J. Trump (@realDonaldTrump) July 19, 2018
Also not so very long ago, Trump was the one grumbling about U.S. tech giants. Though Amazon is his most frequent target in tech, while Google has been spared the usual tweet lashings. Albeit, on the average day he may not necessarily be able to tell one tech giant from another.
Vestager can though, and she cited Amazon as one of the companies that had suffered as a direct result of contractual conditions Google imposed on device makers using its Android OS — squeezing the ecommerce giant’s potential to build a competing Android ecosystem, with its Fire OS.
Presumably, for Trump, Amazon is not ‘one of our great companies’ though.
At least it’s only Google that gets his full Twitter attention — and a special Trumpian MAGA badge of honor call-out as “one of our great companies” — in the tweet.
Presumably, he hasn’t had this pointed out to him yet though. So, uh, awkward.
Safe to say, Trump is seizing on Google’s antitrust penalty as a stick to beat the EU, set against a backdrop of Trump already having slapped a series of tariffs on EU goods, and Trump recently threatening the EU with tariffs on cars — in what is fast looking like a full blown trade war.
Even so, Trump’s tweet probably wasn’t the kind of support Google was hoping to solicit via its own Twitter missive yesterday…
.@Android has created more choice for everyone, not less. #AndroidWorks pic.twitter.com/FAWpvnpj2G
— Google Europe (@googleeurope) July 18, 2018
#AndroidWorksButTradeWarsDon’t doesn’t make for the most elegant hashtag.
But here’s the thing: Vestager has already responded to Trump’s attack on the Android decision — even though it’s taking place a day late. Because the EU’s “tax lady”, as Trump has been known to vaguely refer to her, is both lit and onit.
During yesterday’s press conference she was specifically asked to anticipate Trump’s tantrum response on hearing the EU antitrust decision against Google, and whether she wasn’t afraid it might affect next week’s meeting between the US president and the European Commission’s president, Jean-Claude Juncker.
“As I know my US colleagues want fair competition just as well as we do,” she responded. “There is a respect that we do our job. We have this very simple mission to make sure that companies play by the rulebook for the market to serve consumers. And this is also my impression that this is what they want in the US.”
Pressed again on political context, given the worsening trade relationship between the US and the EU, Vestager was asked how she would explain that her finding against Google is not part of an overarching anti-US narrative — and how would she answer Trump’s contention that the EU’s “tax lady… really hates the US”.
“Well I’ve done my own fact checking on the first part of that sentence. I do work with tax and I am a woman. So this is 100% correct,” she replied. “It is not correct for the latter part of the sentence though. Because I very much like the US. And I think that would also be what you think because I am from Denmark and that tends to be what we do. We like the U.S. The culture, the people, our friends, traveling. But the fact is that this [finding against Google] has nothing to do with how I feel. Nothing whatsoever. Just as well as enforcing competition law — well, we do it in the world but we don’t do it in a political context. Because then there would never, ever be a right timing.
“The mission is very simple. We have to protect consumers and competition to make sure that consumers get the best of fair competition — choice, innovation, best possible prices. This is what we do. It has been done before, we will continue to do it — no matter the political context.”
Maybe Trump will be able to learn the name of the EU’s “tax lady” if Vestager ends up EU president next year.
Or, well, maybe not. We can only hope so.
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Google has been fined a record breaking €4.34 billion (~$5BN) by European antitrust regulators for abusing the dominance of its Android mobile operating system.
Competition commissioner Margrethe Vestager has tweeted to confirm the penalty ahead of a press conference about to take place. Stay tuned for more details as we get them.
Fine of €4,34 bn to @Google for 3 types of illegal restrictions on the use of Android. In this way it has cemented the dominance of its search engine. Denying rivals a chance to innovate and compete on the merits. It’s illegal under EU antitrust rules. @Google now has to stop it
— Margrethe Vestager (@vestager) July 18, 2018
In a longer statement about the decision, Vestager said:
Today, mobile internet makes up more than half of global internet traffic. It has changed the lives of millions of Europeans. Our case is about three types of restrictions that Google has imposed on Android device manufacturers and network operators to ensure that traffic on Android devices goes to the Google search engine. In this way, Google has used Android as a vehicle to cement the dominance of its search engine. These practices have denied rivals the chance to innovate and compete on the merits. They have denied European consumers the benefits of effective competition in the important mobile sphere. This is illegal under EU antitrust rules.
In particular, the EC has decided that Google:
The decision also concludes that Google is dominant in the markets for general internet search services; licensable smart mobile operating systems; and app stores for the Android mobile operating system.

During the press conference Vestager said the Commission had determined that Google had breached its competition rules with Android since 2011. (Although its press release also notes that during 2013, after being called out by the Commission, Google gradually stopped making illegal payments to device manufacturers to exclusively pre-install Google Search. “The illegal practice effectively ceased as of 2014,” it adds.)
“The decision today concludes that the restrictions Google imposed on manufacturers and network operators using Android have breached [EU] rules since 2011,” said Vestager. “First that’s because Google’s practices have denied rival search engines the possibility to compete on their merits. They made sure that Google search engine is pre-installed on practically all Android devices, which is an advantage that cannot be matched.
“And by making payments to major manufacturers and network operators on condition that no other search app or search engine was pre-installed — well, then rivals were excluded from this opportunity.”
“Google’s practices also harmed competition and further innovation in the wider mobile space, beyond just Internet search — and that’s because they prevented other mobile browsers from competing effectively with the pre-installed Google Chrome browser.
“Finally they obstructed the development of Android forks. This could have provided a platform for rival search engines as well as other app developers to thrive.”
She raised the example of Amazon’s Android fork, Fire OS, as a rival Android platform that has suffered from Google’s contractual arrangements with device manufacturers.
“In 2012 and 2013 Amazon tried to license to device manufacturers its Android fork, called Fire OS. It wanted to co-operate with manufacturers to increase its chances of commercial success. And manufacturers were interested but due to Google’s restrictions, manufacturers could not launch Fire OS on even a single device,” she said.
“They would have lost the right to sell any Android phone with key Google apps. Nowadays, very few devices run with Fire OS. Namely only those manufactured by Amazon themselves. And this is not a proportionate outcome. Google is entitled to set technical requirements to ensure that functionality and apps within its own Android ecosystem runs smoothly. But these technical requirements cannot serve as a smokescreen to prevent the development of competing Android ecosystems.
“Google cannot have its cake and eat it.”
Vestager also made a point of characterizing Google’s actions as monopolistic towards data, saying that by blocking rival apps and services it “also denied rivals access to valuable data from increased user traffic which in turn could have allowed rivals to improve their products”.
During the press conference she was asked several times about whether breaking up Google might not be a more effective remedy than the cease & desist decision the Commission has reached today — which hands responsibility for Google to come up with a compliance remedy for its illegal behavior with Android (albeit, subject to ongoing monitoring by the Commission).
She replied that she wasn’t sure that breaking up Google would make for an effective competition remedy, arguing there are “no silver bullets” to ensuring competitive markets.
“Here we have a decision that is very clear, which will allow mobile device producers to have a choice — that will us, as consumers, to have a choice as well. That’s what competition is about. And I think that is much more important than a discussion of whether or not breaking up a company would do that,” she said, when asked whether she would exclude the possibility of breaking up Google — so she was sidestepping a direct answer to that.
“I think what will serve competition is for more players to have a real go, to be able to reach consumers so that we can use our choice to find what suits us the best,” she added. “Test out new search engines, new browsers, have maybe a phone that works in a slightly different way [via an Android fork]… maybe the totality of the phone, in the way it was presented, that would work to allow others to compete on the merits, to show consumers what can we do, what have we invented, this is where we put our efforts, this is the that innovation we want to present for you. This I think would enable competition.”
She also emphasized the importance of passing proposed EU legislation related to transparency and fairness for businesses that are reliant on online platforms.
“I think there is a very important discussion which is to discuss how to pass the legislation that my colleagues have tabled — legislation that will ensure that you have transparency and fairness in the business to platform relationship,” she said.
“So that if you’re a business and you find that ‘oh, my traffic has stopped’, that you know why it happened, when it happened and what to do to get your traffic back…. Because this will change the marketplace, and it will change the way we are protected as consumers but also as businesses.”
Google has tweeted an initial reaction to the decision, claiming Android has created “a vibrant ecosystem, rapid innovation and lower prices”.
.@Android has created more choice for everyone, not less. #AndroidWorks pic.twitter.com/FAWpvnpj2G
— Google Europe (@googleeurope) July 18, 2018
A company spokesperson confirmed to us that it will appeal the Commission’s decision.
In a lengthy blog post response, CEO Sundar Pichai expands on the company’s argument that the Android ecosystem has “created more choice, not less” — writing for example:
Today, because of Android, there are more than 24,000 devices, at every price point, from more than 1,300 different brands,including Dutch, Finnish, French, German, Hungarian, Italian, Latvian, Polish, Romanian, Spanish and Swedish
phone makers.The phones made by these companies are all different, but have one thing in common — the ability to run the same applications. This is possible thanks to simple rules that ensure technical compatibility, no matter what the size or shape of the device. No phone maker is even obliged to sign up to these rules — they can use or modify Android in any way they want, just as Amazon has done with its Fire tablets and TV sticks.
He also has a veiled warning about the consequences should Google’s “free distribution” model for Android come unstuck, writing:
The free distribution of the Android platform, and of Google’s suite of applications, is not only efficient for phone makers and operators—it’s of huge benefit for developers and consumers. If phone makers and mobile network operators couldn’t include our apps on their wide range of devices, it would upset the balance of the Android ecosystem. So far, the Android business model has meant that we haven’t had to charge phone makers for our technology, or depend on a tightly controlled distribution model.
The fine is the second major penalty for the ad tech giant for breaching EU competition rules in just over a year — and the highest ever issued by the Commission for abuse of a dominant market position.
In June 2017 Google was hit with a then-record €2.4BN (~$2.7BN) antitrust penalty related to another of its products, search comparison service, Google Shopping. The company has since made changes to how it displays search results for products in Europe.
According to the bloc’s rules, companies can be fined 10 per cent of their global revenue if they are deemed to have breached European competition law.
Google’s parent entity Alphabet reported full year revenue of $110.9 billion in 2017. So the $5BN fine is around half of what the company could have been on the hook for if EU regulators had levied the maximum penalty possible.
The Commission said the size of the fine takes into account “the duration and gravity of the infringement”.
It also specified it had been calculated on the basis of the value of Google’s revenue from search advertising services on Android devices in the European Economic Area (per its own guidelines on fines).
Pressed during the press conference on how the Commission had determined the size of the penalty, which is double the penalty it issued in the Google Shopping case, Vestager emphasized the time period over which it had been going on, the fact of it having three components, and the effect of it, combined with Google’s rising turnover — adding finally for emphasis: “It’s a very serious infringement. It’s a very serious illegal behavior.”
Google will have three months to pay the fine but has confirmed it will appeal the decision — and legal wrangling could drag the process out for many years.
Vestager confirmed that while antitrust fines must technically be paid to the EU within the three month deadline they are placed in a closed account until the end of any appeals process — meaning the money cannot be used in the meanwhile.
So, in the Android case, the $5BN will likely be locked up until the late 2020s — assuming Google’s appeals aren’t successful. Should Google fail to overturn the Commission’s decision in the courts, Vestager said the money would be returned to EU Member States “using the same key as the contribution to the European budget”.
“You can impose a fine if someone has done someone wrong, you cannot impose a fine because you need the money. That would be wrong,” she added. “This of course means that it will take quite some time… if we win in court — and I can assure you we have done our best to make that possible — then, eventually, the money will come back to Member States to serve European citizens.”
Prior to the Commission’s record pair of fines for Google products, its next highest antitrust penalty is a €1.06BN antitrust fine for chipmaker Intel all the way back in 2009.
Yet only last year Europe’s top court ruled that the case against Intel — which focused on it offering rebates to high-volume buyers — should be sent back to a lower court to be re-examined, nearly a decade after the original antitrust decision. So Google’s lawyers are likely to have a spring in their step going into this next European antitrust battle.
The latest EU fine for Android has been on the cards for more than two years, given the Commission’s preliminary findings and consistently prescriptive remarks from Vestager during the course of what has been a multi-year investigation process.
And, indeed, given multiple EU antitrust investigations into Google businesses and business practices (the EU has also been probing Google’s AdSense advertising service — a separate investigation that Vestager today confirmed remains ongoing).
The Commission’s prior finding that Google is a dominant company in Internet search — a judgement reached at the culmination of its Google Shopping investigation last year — is also important, making the final judgement in the Android case more likely because the status places the onus on Google not to abuse its dominant position in other markets, adjacent or otherwise.
Announcing the Google Shopping penalty last summer, Vestager made a point of emphasizing that dominant companies “need to be more vigilant” — saying they have a “special responsibility” to ensure they are not in breach of antitrust rules, and also specifying this applies “in the market where it’s dominant” and “in any other market”. So that means — as here in the Android case — in mobile services too.
While a one-off financial penalty — even one that runs to so many billions of dollars — cannot cause lasting damage to a company as wealthy as Alphabet, of greater risk to its business are changes the regulators can require to how it operates Android which could have a sustained impact on Google if they end up reshaping the competitive landscape for mobile services.
At least that’s the Commission’s intention: To reset what has been judged an unfair competitive advantage for Google via Android, and foster competitive innovation because rival products get a fairer chance to impress consumers. Although it is avoiding prescribing any specific remedies — beyond telling Google to stop it.
For instance Vestager was asked whether the Commission might want Google to send push notifications to existing Android users to highlight alternatives, and thereby offer a remedy to consumers who had already been impacted by the choice constraints it placed on device makers and carriers.
“It is for Google to figure out how to lift this responsibility,” she told reporters. “It’s for them to do this… Google may make that kind of choice [i.e. sending push notifications] — on that we have taken no position.”
However the popularity and profile of Google services suggests that even if Android users are offered a choice as a result of an EU antitrust remedy — such as of which search engine, maps service, mobile browser or even app store to use — most will likely pick the Google-branded offering they’re most familiar with.
That said, the antitrust remedy could have the chance to shift consumers’ habits over time — if, for instance, OEMs start offering Android devices that come preloaded with alternative mobile services, thereby raising the visibility of non-Google apps and services. Which is clearly the Commission’s hope.
Interestingly, Google has been striking deals with Chinese OEMs in recent months — to brings its ARCore technology to markets where its core services are censored and its Play Store is restricted. And its strategy to workaround regional restrictions in China by working more closely with device makers may also be part of a plan to hedge against fresh regulatory restrictions being placed on Android elsewhere.
Complainants in the EU’s earlier Google Shopping antitrust case continue to express displeasure with the outcome of the remedies Google has come up with on that front. And in a pointed statement responding to news that another EU antitrust penalty was incoming for Android, Shivaun Raff, CEO of Foundem, the lead complainant in Google Shopping case, said: “Fines make headlines. Effective remedies make a difference.”
So the devil will be in the detail of the Android remedies that Google comes up with.
“The decision requires Google to bring its illegal conduct to an end within 90 days in an effective manner,” said Vestager today. “At a minimum, our decision requires Google to stop and not to re-engage in the three types of restrictions that I have described. In other words our decision stops Google from controlling which search and browser apps manufacturers can pre-install on Android devices, or which Android operating system they can adopt. But it is Google’s sole responsibility to make sure that it changes its conduct in a way that brings the infringements to an effective end.”
“We will monitor this very closely,” she added, warning that failure to comply would invite further penalty payments — of up to 5% of the average daily turnover of Alphabet for each day of non-compliance, back dated to when the non-compliance started. “Our decision requires Google to change the way it operates and face the consequences of its action.”
Aptoide, one of the original app store complainants — which filed an antitrust complaint with the European Commission in 2014 complaining that Google’s policies did not allow any alternative app stores which competed with the Play Store to be valid content — welcomed today’s decision, albeit cautiously, as a “positive first step”. So there’s a lot of ‘wait and see’ in the air.
CEO Paulo Trezentos told us: “The EU’s ruling justifying our antitrust arguments is a positive first step forward, for a market more open, more competitive and better tailored for the users. It is these types of decisions that push industries to bigger levels and we hope that this will help everyone evolve.”
On the Google Shopping compliance front, Vestager had some additional words of warning for Google — saying: “We have not yet taken a position on whether Google has complied with the decision. And since we haven’t done so this remains very much an open question.”
She also said the Commission is continuing to investigate other elements of Google’s business practices related to other vertical search services.
“I cannot prejudge the outcome of these ongoing investigations,” she said, also citing the ongoing AdSense probe, and adding that they continue to be “a top priority for us”.
The European Commission announced its formal in-depth probe of Android in April 2015, saying then that it was investigating complaints Google was “requiring and incentivizing” OEMs to exclusively install its own services on devices on Android devices, and also examining whether Google was hindering the ability of smartphone and tablet makers to use and develop other OS versions of Android (i.e. by forking the open source platform).
Rivals — banding together under the banner ‘FairSearch‘ — complained Google was essentially using the platform as a ‘Trojan horse’ to unfairly dominate the mobile web. The lobby group’s listing on the EU’s transparency register describes its intent as promoting “innovation and choice across the Internet ecosystem by fostering and defending competition in online and mobile search within the European Union”, and names its member organizations as: Buscapé, Cepic, Foundem, Naspers, Nokia, Oracle, TripAdvisor and Yroo.
On average, Android has around a 70-75% smartphone marketshare across Europe. But in some European countries the OS accounts for an even higher proportion of usage. In Spain, for example, Android took an 86.1% marketshare as of March, according to market data collected by Kantar Worldpanel.
In recent years Android has carved an even greater market share in some European countries, while Google’s Internet search product also has around a 90% share of the European market, and competition concerns about its mobile OS have been sounded for years.
Last year Google reached a $7.8M settlement with Russian antitrust authorities over Android — which required the company to no longer demand exclusivity of its applications on Android devices in Russia; could not restrict the pre-installation of any competing search engines and apps, including on the home screen; could no longer require Google Search to be the only general search engine pre-installed.
Google also agreed with Russian antitrust authorities that it would no longer enforce its prior agreements where handset makers had agreed to any of these terms. Additionally, as part of the settlement, Google was required to allow third parties to include their own search engines into a choice window, and to allowing users to pick their preferred default search engine from a choice window displayed in Google’s Chrome browser. The company was also required to develop a new Chrome widget for Android devices already being used in Russia, to replace the standard Google search widget on the home screen so they would be offered a choice when it launched.
A year after Vestager’s public announcement of the EU’s antitrust probe of Android, she issued a formal Statement of Objections, saying the Commission believed Google has “implemented a strategy on mobile devices to preserve and strengthen its dominance in general Internet search”; and flagging as problematic the difficulty for Android users whose devices come pre-loaded with the Google Play store to use other app stores (which cannot be downloaded from Google Play).
She also raised concerns over Google providing financial incentives to manufacturers and mobile carriers on condition that Google search be pre-installed as the exclusive search provider. “In our opinion, as we see it right now, it is preventing competition from happening because of the strength of the financial incentive,” Vestager said in April 2016.
Google was given several months to respond officially to the antitrust charges against Android — which it finally did in November 2016, having been granted an extension to the Commission’s original deadline.
In its rebuttal then, Google argued that, contrary to antitrust complaints, Android had created a thriving and competitive mobile app ecosystem. It further claimed the EU was ignoring relevant competition in the form of Apple’s rival iOS platform — although iOS does not hold a dominant marketshare in Europe, nor Apple have a status as a dominant company in any EU markets.
Google also argued that its “voluntary compatibility agreements” for Android OEMs are a necessary mechanism for avoiding platform fragmentation — which it said would make life harder for app developers — as well as saying its requirement for Android OEMs to use Google search by default is effectively its payment for providing the suite for free to device makers (given there is no formal licensing fee for Android).
It also couched “free distribution is an efficient solution for everyone” — arguing it lowers prices for phone makers and consumers, while “still letting us sustain our substantial investment in Android and Play”.
In addition, Google sought to characterize open source platforms as “fragile” — arguing the Commission’s approach risked upsetting the “balance of needs” between users and developers, and suggesting their action could signal they favor “closed over open platforms”.
During today’s press conference, Vestager was asked whether she has concerns that the costs of handsets might rise should Google respond to the antitrust remedy by deciding to charge a licensing fee for OEMs to use Android, instead of distributing it for free.
She pointed to the revenue Google generates via the Play Store. “The revenue made from that is quite substantial so I think there is still a possibility for Google to recoup the investment made in developing the Android operating system,” she suggested.
“I think a number of different choices can be made by Google and it is for Google to make these choices,” she added. “What we see in general is that competition makes prices come down, gives you better choices. So you can have a theory that prices will come up, it is as likely that prices will come down because of more competition. The thing is now it’s open — there can be competition as to how this should work. And that’s the very point of the decision.”
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Qualcomm’s longstanding dominance in LTE chipsets for smartphones, and specifically with Apple’s iPhone, is getting a major hit today.
The European Commission today announced that it would be fining the company €997 million, or $1.23 billion, for abusing its market position between 2011 and 2016, related to its relationship with Apple. The figure works out to 4.9 percent of… Read More
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