Android and Forking Restrictions: On the Hidden Closedness of “Open”

Simonetta Vezzoso

doi:10.7559/mclawreview.2018.323

Abstract

The Google Android Decision was announced by the European Commission on 18 July 2018. The Commission found that three restrictions related to Android and Android apps that Google imposed on mobile device manufacturers and network operators infringed Article 102 TFEU. These restrictions, according to the Commission, “have enabled Google to use Android as a vehicle to cement the dominance of its search engine”. The Android Decision is not yet public. The prohibition of Google’s tying practices on the Android platform has already attracted significant attention by early commentators, also due to the proximity to other high profile antitrust cases. Against the backdrop of the still limited information available, the article proposes some first reflections on another conduct sanctioned by the Android Decision, namely Google’s forking restriction imposed on device manufacturers. In particular, the article describes a possible reasoning underpinning Google’s anti-fragmentation justification based on the economics of two-sided platforms. This justification stems from a purely “transactional view” of platforms. The article concludes that this view is only partially suitable to provide an accurate description of complex innovation ecosystems for the purposes of competition policy enforcement.

Highlights

With the launch of their powerful smartphones in 2007 and 2008 respectively, Apple and Google started a revolution with wide-ranging consequences.1 One recent example is mobile payments, which are already driving parts of the world into a cashless society.2 The other defining element of the current digital transformation is the role played by data as fuel to an increasing number of services and products
More than two years later, on 18 July 2018, Competition Commissioner Vestager announced a decision finding that three restrictions related to Android and Android apps that Google imposed on mobile device manufacturers and network operators Google infringed Article 102 TFEU
Based on the limited public information available, as the Decision has not yet been published, the article proposes some first reflections on the forking restrictions that Google imposed on handset manufacturers

Summary

Introduction

With the launch of their powerful smartphones in 2007 and 2008 respectively, Apple and Google started a revolution with wide-ranging consequences. One recent example is mobile payments, which are already driving parts of the world into a cashless society. The other defining element of the current digital transformation is the role played by data as fuel to an increasing number of services and products. More than two years later, on 18 July 2018, Competition Commissioner Vestager announced a decision finding that three restrictions related to Android and Android apps that Google imposed on mobile device manufacturers and network operators Google infringed Article 102 TFEU These restrictions, according to the Commission, “have enabled Google to use Android as a vehicle to cement the dominance of its search engine”.41. 43 European Commission, “Statement by Commissioner Vestager on Commission decision to fine Google €4.34 billion for illegal practices regarding Android mobile devices to strengthen dominance of Google’s search engine”, July 18, 2018, http://europa.eu/rapid/press-release_ STATEMENT-18-4584_en.htm. These specific practices aim at the obstruction of the development and distribution of competing Android operating systems, so called “Android forks”. Google has 90 days to bring its illegal conduct to an end in an effective manner and the Commission has already indicated that it will strictly monitor Google’s compliance with the Decision

Forking restriction as restrictive practice and its justification

Findings

Conclusion