Another day, another antitrust lawsuit against Google. This one, filed by 36 states and Washington DC, says that the company’s practices regarding its Android app store violate antitrust law. This is now the fourth antitrust lawsuit filed by various governments in the US against Google. There’s the DOJ lawsuit, one from nine state AGs, another from 10 state AGs, and now this new one. I get that everyone wants to hate on the big tech companies these days, and they also want to throw a bunch of things at the wall, but would it really have been that difficult to go through all of this in one single lawsuit?

As with the previous lawsuits, this one leaves me scratching my head. I kept expecting there to be some bombshell or some smoking gun. But, once again, this lawsuit seems to take things that were done for perfectly reasonable reasons and attack them as anti-competitive.

The oddest thing, of course, is that of any “app store” out there, Android is the most permissive around. Apple’s iOS is much more restrictive. You can’t get apps onto an iPhone without first getting them approved by Apple. Ditto for other proprietary platforms like video game consoles. Google, on the other hand, allows users to sideload apps and also to install alternative app stores entirely. For example, Amazon has long had its own Android app store (and, notably, in the new version of Windows, users will be able to install Android apps on their desktop machines via Amazon’s app store). That’s a lot more open than most similarly situated platforms.

The complaint makes a big deal about how Google “discourages” people from sideloading apps or using alternative app stores:

Although Google leaves open the technical possibility for Android consumers to
acquire some apps without using the Play Store, this can only be accomplished through a
competing app store installed on the device (either through preloading by an OEM or through the
user sideloading the store), or through sideloading of individual apps. Google takes various steps
to discourage OEMs from directly competing or sponsoring any app store competition. Google
makes the sideloading process unnecessarily cumbersome and impractical by adding
superfluous, misleading, and discouraging security warnings and by deterring users by requiring
them to grant permission multiple times for a single app installation (discussed in more detail in
Sections I.C. and I.D. below). The effect of Google’s conduct is to practically eliminate
competition in Android app distribution.

But, uh, this kinda leaves out some of the details here — which is that earlier, when Google was much more permissive about sideloading apps, there were lots of complaints about the dangers of sideloading and third party app stores. Indeed, some device makers used to refer to Android allowing sideloading as creating a “chaotic cesspool” of security problems and piracy.

In response, Google did get more serious about making sure users really understood the risks and really wanted to install 3rd party apps. But, again, it still does allow this — much more readily than others. And yes, it’s true that this probably makes it more difficult for third party app stores to survive, but if Google didn’t do this it would also be slammed left, right, and center by everyone for not “policing” its phones and allowing security risks and piracy to run rampant. It’s a damned if you do, damned if you don’t situation.

I don’t disagree that it would be nice if Google were more open to 3rd party app stores, and didn’t necessarily make you jump through so many hoops, but is that seriously an antitrust violation? Even the market definition (the key to any antitrust case) is… weird. Obviously, how you define the market will show whether or not there’s a monopoly — and if you define the market as “the products that only this company makes” then of course that’s a monopoly. But that’s not really relevant for a question of whether or not there is anti-competitive behavior. But here, these states have come up with a market definition that is basically just Android. They’re not even doing the “mobile operating system” market. Instead, they claim that the relevant market is specifically “the licensable mobile OS market” — meaning that Apple iOS (which is not licensable from Apple) is excluded.

The licensable mobile OS market also excludes OSs that are unsuitable for mobile
devices, such as OSs for simple cell phones, “flip phones,” or feature phones, or for other
electronic devices (such as laptop computers, desktop computers, and gaming consoles, e.g.,
Nintendo DS, Xbox, PlayStation) that are not mobile devices.

If I’m reading this right, they’re actually suggesting that if Google had decided not to license its OS, and not to let competing device manufacturers build their own competing phones, then they would have less of an antitrust case against Google. And that seems… weird? And kind of nonsensical.

Maybe I’m missing something here, but it seems like Apple’s control of iOS is a lot more strict, ditto for Nintendo, Microsoft with Xbox, and Sony with the PlayStation. Google’s decision to license its OS and enable much wider competition, as well as allowing some sideloading and 3rd party app stores, seems a hell of a lot more competitive than all those other services — and yet that’s all being used against Google, but not the others?

It also seems like this lawsuit may run into the same problem that resulted in various states’ lawsuits against Facebook to get tossed: why now? Android has acted this way for years, and why are these state AGs suddenly deciding it’s a problem?

I’m all for having more competition at every level of the stack, but I’m confused as to how this is a legitimate antitrust claim.

Read more: techdirt.com

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