The Bombshell That Wasn’t: FOSS Patents’ Android Scoop Misses The Mark

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As the legal challenges against Android have mounted, a few voices have risen more quickly than the rest. One of these is patent analyst Florian Mueller’s, whose site FOSS Patents has chronicled cases like Apple v. Samsung (over the Galaxy Tab’s likeness to the iPad) and Oracle v. Google (which goes after Android itself for patent and copyright infringement). His posts often get wide circulation, and, oftentimes, he concludes that Google is in rough shape.

Today, Mueller has written a post called “Shocker for Android OEMs: Google document proposes giving Motorola time-to-market advantage to build Android ‘lead devices'”. The article has gotten quite a bit of press coverage and is now one of the top stories on Techmeme, as it’s allegedly uncovered some of Android’s dark secrets. Unfortunately, these revelations are neither new, nor were they particularly shocking in the first place.

In the post, Mueller points to Document 397 of the Oracle v. Google case, which includes the following passages (written by Google employees):

  • Do not develop in the open. Instead, make the source code available after innovation is complete
  • Lead device concept: Give early access to the software to partners who build and distribute devices to our specification (ie, Motorola and Verizon). They get a non-contractual time to market advantage and in return they align to our standard.

Mueller goes on to say this is “definitive confirmation of what was previously suspected: the Android source code tree has “private branches” and some OEMs were always more equal than others.” He also questions how, given the fact that it has shown certain OEMs favoritism in the past, anyone could believe that Google won’t bestow unfair favoritism toward Motorola Mobility after it acquires the company.

In his post, Mueller acknowledges that point number one is nothing new. Android’s closed development already has been discussed at length. It is not a secret that Google only releases the latest version when it’s nearly ready for the public. Yes, it does irk some developers and manufacturers that they can’t access the code as gets checked in (cue Apple fans running around with scare-quotes shouting, “Open!”). But while Android isn’t as open as, say, Mozilla’s Firefox, it still does open-source each release. Well, except for Honeycomb. But, again, this is all well-worn territory.

Onto part two: the lead devices, with which Google grants early access to the latest version of Android. Mueller asserts:

But the document I showed above removes whatever little doubt anyone had left that Google certainly plays favorites with certain Android OEMs, and if the MMI deal goes through, it will play favorites with only one: its own subsidiary, of course.

Thing is, there wasn’t any doubt that Google “plays favorites” with certain Android OEMs. It has done this with the Motorola Droid, the Nexus One (made by HTC), the Nexus S (made by Samsung), and the Motorola Xoom. Android chief Andy Rubin has openly spoken about the lead device program in interviews, and the Android team describes it in a video about the creation of the Nexus S, in which they discuss how they “develop a lead device with a manufacturer”. Even the blog post announcing the Nexus S talks about this:

“Nexus S is the lead device for the Gingerbread/Android 2.3 release; it’s the first Android device to ship with the new version of the Android platform. We co-developed this product with Samsung—ensuring tight integration of hardware and software to highlight the latest advancements of the Android platform.”

Google uses these lead devices as a way to keep the Android ecosystem moving forward (other OEMs quickly integrate the latest features, otherwise they fall behind). And Google can use the lead devices as a carrot — should an OEM do something Google deems hurtful to the Android ecosystem, they probably won’t be getting a lead device any time soon.

But Mueller’s conclusion — that this is proof that Google will show favoritism to Motorola Mobility — doesn’t hold water. As I’ve written before, this is a land rush, and Google has every reason to keep as many OEMs pumping out as many Android devices as possible; it isn’t about to infuriate them all by turning Motorola into its blessed favorite. During the conference call announcing Google’s plan to acquire Motorola, Andy Rubin said that the lead device program would continue, and that Motorola would take part in the bidding process as it has in the past. If anything, my hunch is that Motorola will actually get fewer lead devices than it would have otherwise, so as to keep the other OEMs happy.

Finally, in a different post published today regarding Oracle v. Google Mueller makes a pretty strange claim:

The choice of Andy Rubin and Google’s General Counsel Kent Walker is very questionable. While Google can’t be penalized for the fact that it doesn’t give anyone the title of “President”, those two executives are clearly not at a level with [President of Oracle Corporation] Safra Catz.

As far as I can tell, Catz reports to Oracle CEO Larry Ellison. Andy Rubin, whose title is Senior Vice President, Mobile, reports to Google CEO Larry Page. Granted, Google has more SVPs than Oracle has Presidents, but those two seem pretty level to me. And Rubin is easily one of the most important people at Google. Update: Mueller is correct in noting that Rubin isn’t listed on Google’s Management page, so he has a point, but I’d still contend that Rubin is very important at the company.