Tuesday, October 16, 2012

Google has always been about choice

There is considerable interest and concern about the dominance of Google. While is it is true that they are everywhere, on the computer, on the phone, crawling the World Wide Web and collecting terabytes of content, they have always been mindful of choice. They are now the subject of an FTC investigation for antitrust on two fronts. One for Google's alleged anti-competitive use of patents to ban certain products from the US market and second, for their dominance in search.

What follows is a letter I wrote to the FTC in response to the threats that these investigations pose:

Sirs,


I have read in the news that you're considering an antitrust investigation into Google for their use of patents to ban certain products from market. While most of the news concerning FTC antitrust investigations of Google centered on search, it is only today that I learned that your department is considering an investigation of the alleged abuse of patents by Google.

With regard to Google's dominance of search, I think it is worth considering that it is nearly impossible to eliminate the competition in search. While FairSearch complains that Google is dominant in the search industry, they miss an important point: If I want to use a different search engine, I can. As long as robots can crawl websites, anyone can build a robot to crawl websites, compile the results and make them available in a search engine.

It is important to note the loose alliance between Microsoft and FairSearch. Microsoft has an undeniable interest in gaining access to Google search algorithms. If access to Google search algorithms were to be made public, Microsoft would argue that since it is not dominant in search, that it should not be required to disclose Microsoft search algorithms. This entire campaign is designed to keep Google on the defensive through attacks from proxies like FairSearch.

With regard to your pending patent investigation, it should be noted that Microsoft has sought and secured patent license agreements with every Android manufacturer except one, Motorola Mobility. Microsoft and Nokia are working with a third party, MOSAID, to extract licensing fees from Android and Linux developers. This is well documented in litigation Microsoft initiated against Barnes and Noble - B&N has since settled with Microsoft. When 2 or more companies work together to eliminate competition through anti-competitive practices, such as patent trolling, isn't that a basis for antitrust investigation? 

Microsoft, Nokia, Oracle, and Apple are all giants in the tech industry. Google is the upstart and is the target of a concerted series of legal attacks against Android and Google in general. They are all using patents, a form of regulation, to mitigate or neutralize the competitive threat that is Google. Microsoft has already been convicted of using their industry dominance to eliminate choices in computer operating systems. Apple is poised to do the same. Nokia is losing market share due to some very poor management decisions. Oracle is dominant in the database industry and seems somewhat unhappy that it missed an opportunity to create a smartphone operating system. All of them are relatively old companies and have found that "when you're young, you innovate, when you're old, you litigate" in the tech industry. They are all litigating against Google/Android.

Google doesn't need to use patents to compete. Google has only used patents defensively and will retaliate against those who use patents against Google. A casual observation of the Motorola Mobility litigation will show that Motorola Mobility litigation has only been targeted at those who initiated litigation against Android or Google. Google doesn't care which operating system I use on my computer. Microsoft, Nokia, Oracle and Apple all seem very concerned that I might decide to use Android or Linux on my computer or smartphone. They have all chosen to exercise litigation rather than innovation as a means of competing against Android and Linux. 

I think that the apparent collusion between all the major industry players working against Google is a far more worthy target of investigation for antitrust concerns than anything that Google is doing. Google is agnostic about which device or which operating system we use to search. Google only wants to make it easier to use Google search, no matter how we do it. My experience after trying Bing, Yahoo and even Alta Vista, is that Google search offers the best search experience I have ever found. Google supports open standards better than any other company. Open standards promote competition. When Google uses open standards, open source software and leverages openness to compete, that is no crime.

I urge you to reconsider your investigations of Google and instead, investigate all of the companies that are litigating against Google. Are they communicating with each other? Are they timing their lawsuits with each other? What do they have to gain, collectively, against Google? Is is fair for a group of companies to gang up on Google for competitive advantage?

These are questions I urge to you consider before you launch an investigation or any lawsuit against Google.

Thank you.

Scott Dunn

[End of email to FTC]

So, what do you think? Did Google break antitrust laws?
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