posted by Thom Holwerda on Fri 17th Sep 2010 23:12 UTC
IconYesterday's news regarding the lawsuit Skyhook has filed against Google seems to have made quite an impact here and there. If you read through the complaint (at Daring Fireball), Skyhook makes some interesting claims about how Google abuses its position to strongarm OEMs into using Google Location services, but the big claim, something everyone seems to overlook, is this one: Skyhook says Google tried to gain access to Skyhook's data.

Skyhook's complaint basically comes down to this (quoted from the complaint): "Google publicly represents Android as open source and pro-innovation, then unfairly uses its exclusive oversight of the platform to force OEMs to use Google Location Service". You can't get much more straightforward than that - props to Skyhook for being this clear in a legal document (although there is a pretty severe grammar mistake in there - cookie if you can find it).

Skyhook's claim is that Andy Rubin himself issued a "stop ship" order to Motorola and 'Company x' (likely Samsung) when it found out that their upcoming Android phones (the Droid X and - likely - the Galaxy S line) would use Skyhook's technologies instead of Google Location Services. According to Skyhook, Google stated that using Skyhook's technologies would make the devices incompatible with Android.

A little background: Android devices need to pass two tests to be declared Android compatible (and therefore, gain access to the Android Market and select other Google services). The first test is the Compatibility Test Suite, a software-based test platform. Little meddling Google can do with this one.

The second test is subjective, and is done entirely by Google's own engineers. Android devices and their software are reviewed based on the Compliance Definition Document, a set of dos and don'ts regarding the device and its software. According to Skyhook, this is the problematic part of the compatibility test, and the means by which Google applies its pressure on OEMs.

"This entirely subjective review, conducted solely by Google employees with ultimate authority to interpret the scope and meaning of the CDD as they see fit, effectively gives Google the ability to arbitrarily deem any software, feature or function 'non-compatible' with the CDD," Skyhook states in its claim.

Unlike some, I took a look at this document, and in all honesty, it all looks rather straightforward. It literally is a simple list of what you can and cannot do; considering Skyhook is arguing that Google uses this document to strongarm OEMs, I expected it to be vague, full of obtuse legalese that can be interpreted in ten different ways.

None of that, however - even I, as a non-developer, can clearly understand this document. The requirements set forth in this document are not only pretty clear and understandable, they're also remarkably easy-going at times. Even core Android applications like the Dialler, the Camera, the Browser, and so on, may be replaced by alternatives.

Then there's this other strange thing about the CDD. Skyhook claims that the CDD can be interpreted however Google wants so they can use it to arbitrarily declare devices incompatible. However, the CDD has absolutely nothing to say about location services, so I'm wondering how Skyhook can use the CDD in its argument!

Worse yet - Verizon is shipping Android devices without Google search even present as an option, opting to use Bing instead! Just as the CDD has nothing to say about location services, it also has nothing to say about which web search engine is installed, or which one is used by default. Do you really think Google would allow Android phones to ship without Google Search, while giving two donkeys about what location services are in use?

You'd think no, but this is where it gets really, really interesting. This part of the filing is overlooked by just about any analysis that I've read, yet I think this is maybe the single-most important point in the entire filing.

Skyhook claims in the filing that Google was okay with Android devices shipping with Skyhook's XPS location services, as long as Google's own Location Services were running alongside it. "Google knew that if its Google Location Service is collecting local data, on the same device at the same time as XPS, that will enable Google to collect more and better location data because of Skyhook's accuracy and precision," Skyhook claims in the filing.

In other words, Skyhook is claiming that Google tried to make it so that it could benefit from Skyhook's location data - incredibly valuable data if you're an advertisement company such as Google. This is the core aspect of this entire case, yet most people overlook it in their lust for sensation (ANDROID IS CLOSED ZOMGWTFBBQ).

This leaves us with one mystery yet to solve: if Google can't use the CDD to force Motorola and Company X to use Google Location Service - what else could it be using as leverage?

To answer this question, you need to understand one thing about Android. While it is open source, it also sports an optional set of Google applications that are not. These applications, like Maps and Gmail, fall under a different agreement and set of requirements that OEMs need to agree to. This includes access to the Android Market as well. Sadly, this agreement and set of requirements remain a secret until this day, so we simply don't know if e.g. a requirement for Google Maps is that it needs to use Google Location Service.

It would seem, however, that location services are not an aspect of these requirements, and Skyhook itself provides the evidence for that. First, both Motorola and Company X told Skyhook that after reviewing the agreements with Google, they concluded they could replace Google Location Service with Skyhook's XPS. Second, Skyhook points out that other Android devices have shipped with a different location service than Google's.

This means either of two things: Skyhook is lying, or the Apps/Market agreement is secret for a reason - they're vague, and allow Google to arbitrarily declare devices incompatible if it suits their interests. Because Skyhook is focussing on the CDD as Google's leverage, and not the secret Apps/Market agreement, it is likely to assume Skyhook has no access to the latter either.

As such, Skyhook is pretty much forced to throw everything on the CDD, since it cannot make any hard claims about an agreement it doesn't have access to. In doing so, however, they make one big mistake in their filing that Google will likely pick up on in their counterargument: they claim the CDD governs whether or not applications gain access to the Android Market. This is clearly false, as this is governed by the secret agreement. The CDD has nothing to say about access to the market at all.

All in all, I get the impression that Skyhook sees the writing on the wall. They already lost Apple in the mobile space, since they developed their own location services. Google has done the same, and I'm sure Microsoft is not far behind. This leaves Skyhook in a sticky situation, and as we all know - if you can't compete, litigate.

However, that is a rather simplistic view and ignores the fact that Google is a very big company, and by rule, big companies do bad things. I certainly wouldn't put it past Google to do the things described in Skyhook's claim - it's just that Skyhook's claim isn't particularly convincing.

I am dying to see Google's response to this.

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