EU, Motorola, Apple: How long will Google's 'Don't be evil' fiction last?

May 07, 2013 8:16 AM EDT

Apple [AAPL] has won yet another argument against its Android nemesis as EU officials declare Google's Motorola Mobility abused its market position when it filed an injunction against Apple. The decision strongly suggests Android is not truly about open competition and choice.

[ABOVE: Samsung continues its direct attacks on iPhones in its latest ad.]

How rude

The EU decision supports an opinion that Apple's Android competitors will stop at nothing -- absolutely nothing -- to bring the iPhone maker to its knees. Apple's shiny new Cupertino headquarters will likely need to be equipped with an automatic window cleaning system to prevent the mud competitors are slinging against the company from ruining the garden view.

I realize many mutter the playground mantra that Apple started this litigious laughter when it struck against the copyist (according to the US courts) known as Samsung. Is this really true, given Apple had asked Samsung to make changes in its products, and turned to the courts when its then partner refused?

It must surely be permissible to turn to legal remedy when all other paths of negotiation have failed -- why else do you think the Judge in the Apple v. Samsung case so frequently tells both parties to try to settle their differences amicably?

Continuing this value judgment then if it is acceptable to turn to the courts when all else has failed, why did Motorola Mobility choose to use litigation as a first strike against its foe?

Further, the litigation revolved around industry standard (FRAND) patents. What's crucial is that this litigation was not a course of last resort, but an attack in which Motorola abused its market position in order to affect industry development and reduce competition.

If Apple's move to defend itself against imitation is considered unacceptable, it seems appropriate that Motorola Mobility's move to use FRAND patents against its competitor should be considered even less acceptable because it constitutes abuse of market power.

Open, really?

This implies Google -- already under investigation for sundry anti-competitive practises -- is itself not the big friendly giant of "openness" its Android acolytes seem programmed to believe it is, assimilated as they are into its dystopian market vision.

The injunction didn't need to happen. Given a choice between reaching a deal and continuing to litigate, Motorola chose the latter, seeking an injunction despite Apple's apparent willingness to enter an agreement, according to the EU Competition Commission.

Don't neglect that when Google purchased Motorola it promised to fairly license Motorola patents -- yet in pursuing this litigation in Europe it has clearly failed to keep its promise.

In a world in which sporting heroes and rock stars are told they must act as positive role models, it seems strange that corporations are not held to the same high account. Why should corporations not be expected to act ethically, deliver good working conditions and pay tax?

Returning to the Motorola Mobility case, it seems likely to me Apple will now launch fresh litigation against its competitor demanding damages in response to the European decision. After all, it was forced to remove iPhones and iPads from sale in Germany on strength of an injunction won by Motorola.

"Don't be evil"

"While recourse to injunctions is a possible remedy for patent infringements, such conduct may be abusive where standard-essential patents are concerned and the potential licensee is willing to enter into a licence on fair, reasonable and non-discriminatory terms," the EU said.

EU Competition Commissioner Joaquin Almunia: "The protection of intellectual property is a cornerstone of innovation and growth. But so is competition.

"I think that companies should spend their time innovating and competing on the merits of the products they offer -- not misusing their intellectual property rights to hold up competitors to the detriment of innovation and consumer choice."

The latter point is key. Motorola's attempt to distort licensing negotiations threatens the principle of an open, competitive market, which itself threatens consumer choice.

Given Google's place in command of Motorola, you could construe that Android isn't truly about openness and choice, but is instead concerned with offering a series of choices, all of which are Android. It amazes me that Apple, not Google, is the firm critics condemn as "controlling."

It will be interesting to see the spin, now that "open" Google/Motorola Mobility may face yet more antitrust charges from the European Union.

How much longer can Google's "Don't be evil" fiction hold in the face of evidence like this?

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