Monday, April 25, 2016

Why Margrethe Vestager may ultimately lose to Google

Nicholas Hirst

Suing a tech company may be the easy part. Winning before everyone loses interest is hard.

The Socrates-style question surrounding the European Commission’s new case against Google’s Android operating system is not whether the company abused its power over mobile devices, but whether people will even be using smartphones and apps in five years.

Already, the Commission’s ongoing 2010 case against Google’s search engine is less important to the tech industry because customers are switching from PCs to mobile devices. The regulators’ 20-year antitrust battle over Microsoft’s Windows also ended with a yawn as consumers found other ways to download rival music and browsing software. And while the Commission keeps going after chipmaker Qualcomm, Chinese competitors are leveling the field faster.

“These are complicated cases,” says Damien Geradin, a lawyer and professor of antitrust law at the universities of Tilburg and George Mason. “In most instances, the forces of creative destruction will do more to address situations of lock-in than antitrust remedies.”

There are, of course, notable exceptions. The Commission’s swift probes into patent standards and e-books arguably nipped a problem in the bud.

Thinking fast and slow

Few doubt the role of market enforcer is a valuable one, but it’s a job that is shackled by legislative and legal systems from another age.
Antitrust cases routinely run for four or more years, stretching from the Commission’s initial investigation to a final decision. Court appeals can take almost twice as long.

“Of course it is better to be fast than slow but it’s even better to be just,” is a common expression of Margrethe Vestager, the European commissioner for competition.

By contrast, the mantra of her predecessor Joaquín Almunia was that fast-moving markets require quick intervention.

That philosophy drove him to settle with Apple and publishers rather than drill down on suspicions they colluded to fix the price of e-books. 

His allegations that Motorola and Samsung used their patents to hold rival phonemakers to ransom were also quickly concluded without sanctions.

Yet his repeated efforts to settle a 2010 probe into Google’s search engine failed.

In the meantime, complainants have become increasingly irrelevant. Price comparison sites Ciao and Kelkoo both saw their traffic drop by more than 65 percent between 2007 and 2014, according to ComScore, and were sold off by Microsoft and Yahoo, respectively.

Streetmap and Hot-Maps, both complainants, mothballed their mapping services. Even Microsoft, longtime rival and antitrust agitator, withdrew its complaints against Google on Friday.

Meanwhile, Amazon, Facebook and others have moved in to challenge Google’s dominance.

Google declined to comment. The Commission declined to comment on the record.

Disappearing dominance

Vestager is not averse to speed. In a surprise move, she leveled two sets of charges against Qualcomm in July. Her latest case against Google was filed within one year, almost to the day, of the formal inquiry beginning.

Last week’s charges against Android accuse the Silicon Valley darling of using a series of contracts and payments to funnel users towards the No. 1 search engine and block rivals in the mobile space.

Android ran 81 percent of smartphones shipped in 2015, according to Strategy Analytics, while Google processes some 90 percent of Internet searches in Europe.

“Google has a more dominant position than you would ever imagine in the last 50 years,” says Gerd Leonhard, a futurist and CEO of The Futures Agency, citing the amount of personal data Google holds. (Leonhard counts Google among his consulting clients.)

But that dominance could disappear. Google and other giants like Alibaba and Facebook are in a global race to develop artificial intelligence, or AI.

“Google knows that in five more years there is no more search with a keyboard and a computer,” Leonhard says.

Neil Mawston of Strategy Analytics says Android could become the hub of an ecosystem of connected devices, or the market could morph with the release of devices that can be folded or rolled up. Chatbots — computer programs that can undertake tasks in response to to text commands — could replace apps, or the Chinese could overtake the software market.

Facebook is targeting virtual reality, while other tech companies are investing heavily in wearable gadgets.

A breakthrough in any of those technologies could give their creator a major competitive advantage.

“We are at a tipping point where AI is really taking off,” Sundar Pichai, Google’s CEO told investors of parent-company Alphabet last week. “In the long run, I think we will evolve in computing from a mobile-first to an AI-first world.”

That may explain why Google’s rivals want a solution sooner rather than later.
Paulo Trezentos, the founder of Aptoide, a growing Portuguese app store with 50 employees and a formal complainant against Google, is still hopeful: “We don’t think it is too late.”

Thomas Vinje, an antitrust lawyer representing FairSearch, a group of companies opposed to Google, stressed the need for speed.

“We are interested, frankly, in changes to the conduct, that’s what we care about,” he said.

Lawyers and some regulators have argued the Commission should employ never-used powers to impose temporary remedies or interim measures, pending a decision.

“Investigations […] should not take 10 years to complete, and arrive only when the market has changed beyond recognition,” warns Alex Chisholm, the head of the U.K.’s competition authority.

But what of the hundreds of millions of existing phones that already run on Android in Europe?

The Russian answer

Roman Krupenin, a senior lawyer with Yandex, a Russian search engine, says the Commission could force Google to show a ballot screen to all existing Android users, giving them the option of using other search engines.

That is a solution imposed by the Russian competition authority, which opened and closed its probe into Android in the space of seven months. Google is appealing.

It is also similar to one solution employed by the Commission at the end of its 20-year standoff with Microsoft.

European antitrust officials required the software giant inter alia to sells its dominant Windows operating system without automatically pre-installing other Microsoft software, such as Media Player or Internet Explorer.

Yet by the time the remedies were applied, users were already downloading rival software through the fast-growing internet.

Cheerleaders of the Commission, however, say its enforcement action encouraged innovation.

“Microsoft was a fundamental pest to innovation and hobbling it was the best thing that happened to the digital economy,” says Andrew Keen, a tech entrepreneur and author of book “The Internet Is Not The Answer.”

“Google’s get-out-of-jail card is to say that things change so quickly.”


 Additional reporting by Chris Spillane.


No comments:

Post a Comment