Why Apple is suing HTC rather than Google or Android
March 3rd, 2010
Daniel Eran Dilger
Apple’s patent assault on HTC (the maker of most Android and Windows Mobile phones) has gotten the tech media in a tizzy. Why isn’t Apple taking on Google or Android instead, and is this action the sign of a tough new Apple that hates Google and open source and wants to kill Android? That’s all wrong, here’s why.
Apple now strikes first?
There are several interesting aspects to this case. The first is that Apple is suddenly taking the lead in proactively policing its intellectual property. This is a change in behavior, but not something that the company’s executives were ever shy about threatening.
In unveiling the iPhone three years ago, Steve Jobs pointed out that Apple had patented various unique aspects of the device to forestall wholesale copying, at least to the point where Apple could remain five years ahead of the market. More recently, chief operations officer Tim Cook said his company would be ready and willing to take on anyone who violated its patents.
That comment was picked up and bandied about by pundits to suggest a war between the iPhone and Palm’s then new Pre, but Apple did not ever sue Palm. Such a lawsuit would be pointless, as it would only consume Apple’s attention while likely taking Palm out of the running in smartphones. Since Palm has never been a credible threat, this would only help Google’s Android consolidate its position as “the other smartphone platform.”
Emotional idealist pundits were so adamant about well-wishing for the Palm Pre a year ago that they fell for the hype and took the company far more seriously than they should have. Back then, I laid out exactly why Apple saw no real threat in Palm, nor any advantage in engaging the company in a high profile fight, neither in the market nor in court.
Apple vs Nokia
Apple has sued Nokia over iPhone-related patents, but that was in response to Nokia’s own lawsuit. The difference between the two companies’ patent actions is that Nokia was suing Apple in an effort to extract higher royalty fees for patents related to openly licensed technologies. Apple was simply suing to stop patent infringement.
Nokia was demanding both much higher fees from Apple for its 3G and WiFi patents than for other companies (a hypocritical position given that Nokia takes a lot of credit for offering such technology under supposedly nondiscriminatory licensing terms), and also attempting to gain the ability to use Apple’s proprietary, patented iPhone technologies.
Apple responded to Nokia by filing a suit aimed at blocking it from continuing to use Apple’s iPhone technologies at all. As Steve Jobs might say on stage when asked that type of question directly by somebody when the press was ostensibly listening but apparently not actually paying attention, “Apple isn’t in the business of licensing technology.”
Apple vs Android?
While Apple handled Palm very differently from Nokia, it appears that the iPhone maker’s work in mounting “a good offense as its best defense” against Nokia was in part recycled in order to take on HTC, that maker of the Google-branded Nexus One.
So why did Apple sue HTC rather than Google or the Android Open Handset Alliance? That answer seems simple enough: HTC is the linchpin not just for Android but for Windows Mobile, or as Microsoft likes to say these days, “the vaporware now known as Windows Phone 7.”
By pulling HTC into a legitimate legal skirmish over patent infringement, the wheels come off both sides of the cart, sending other Android makers into creative mode (where they have to envision a smartphone that doesn’t look exactly like the iPhone) and sending WP7 into turmoil (because Microsoft has bet all of its marbles on a plan that sacrifices today’s WiMo to resurrect it as WP7 in a make-or-break effort that is modeled to look as close to the iPhone as possible).
As you’ll recall, that was also Microsoft’s Zune strategy (at least in hindsight): dump the existing, moribund effort to widely license PlaysForSure across an industry of independent media player hardware vendors offering “choice,” and concentrate on one design that is based as close as possible to the successful iPod as Microsoft could dare.
The problem, of course, is that this did not work in 2007, or 2008, or 2009. So Microsoft is trying it again in 2010, bringing to mind that thing Einstein said about expecting a different result and insanity. Even more ridiculous is that Microsoft was also laughing at Google’s Nexus One as being a stupid thing to try to pull off while not also offending its other licensees.
Microsoft frets Google’s Nexus One will suffer Zune’s failure
Apple vs HTC
Unlike Palm, HTC is a credible threat. The company poops out new models every few months, and is strategically aligned with both Google’s Android and Microsoft’s WP7 vaporware. Also recall that this company was credited with building 80% of all the WiMo phones that ever were.
So HTC is a two headed hydra, one that could survive the death of either WiMo or Android and still remain alive. This is the absolute best target for Apple to focus on in demonstrating the power of the iPhone death star; it’s like shooting Greedo while also taking out Jabba the Hutt with the same bullet.
If Apple loses, at least it can’t say it didn’t take its best shot. If it wins, it forces Microsoft back to the drawing board, delaying WP7 and effectively quenching any fire left in that company’s mobile loins.
A win would also force Android developers to think differently, rather than simply aping the iPhone as closely as possible. Remember that when Android first appeared, it was clearly targeted at WiMo, both in terms of hardware designs and overall strategy. More recently, it’s all about creating an iPhone clone that pundits can proclaim as almost being the “iPhone-killer.”
Apple’s strike at HTC is also representative of an assault by America on Chinese (Recall that Taiwan is the ‘Republic of China’) cloners. If Apple wins, overseas companies hoping to simply duplicate Western technology will give some pause before following in the footsteps of HTC.
Apple can beseech the ITC to block infringing HTC phones, requiring that the company either make US and non-US models, or simply make one global model that isn’t just a rip-off of the iPhone.
Apple vs Open?
Meanwhile, the pundits who professionally attack Apple as their contracts legally require them to do have come out with a number of reasons why the company shouldn’t act to protect its intellectual property. Among them:
Steve Jobs once said “great artists steal.” Actually no, Jobs was quoting Picasso, who originally used the phrase to talk about “stealing” great ideas in art. Referencing that idea, Jobs added, “we have always been shameless about stealing great ideas.” Great ideas in art are not patented technologies. Apple’s great ideas have always been shamelessly stolen, so it’s not like the company is a bottom feeding troll. What Jobs was clearly indicating was Apple’s liberal openness to new ideas. He was not advocating intellectual property theft.
Apple chooses not to enter lots of markets because it has to respect intellectual property. For example, the reason Apple doesn’t have DVD ripping in iTunes is not because it can’t figure out how, or because it doesn’t want to offer such a feature (as it does for CDs), but because it has to respect its licensing agreement with the DVD Forum.
Another example is iTunes Reply, a cloud streaming service which the company developed but has had to keep on hold as it has worked to sell it to labels and studios for the better part of a year now, waiting for their approval because it’s their content, not Apple’s. Apple doesn’t steal in the literal sense of the word, but it is very open to pouncing upon great ideas that are not protected by copyright or patents or legal licensing agreements that preclude it.
The simple-minded fringe of Android’s fans would prefer to think that Jobs is simply saying that Apple takes and does not give, as they smugly refresh their WebKit browsers looking for some news on whether any real games or non-hobbyist apps will ever appear for their Java-clone platform. Their love of “openness” is not even challenged by their use of a platform that bundles its core real value as non-freely licensed binaries. Too bad they’re too enraptured with GPL ideology to realize that the “with Google” inside Android is the non-free part; they might realize that their position is beyond ridiculous.
Apple froth froth Xerox froth Microsoft look-and-feel froth froth. When they really get excited, the Apple haters start padding their frothing with selective memories of anecdotes they’re read from the 1980s. One is that Apple itself copied the Mac from Xerox back in the early 80s, and therefore eternally lost its right to ever protect its own intellectual property.
No, in reality Apple exchanged a million dollar investment deal with Xerox to allow it to commercialize PARC technology that Xerox was afraid to bring to market itself. It then hired away Xerox PARC people who were tired of working on advanced technology that nobody would ever see, not unlike the minor iPhone engineering exodus that resulted in the development of WebOS at Palm. What Apple brought to market with the Lisa and then Macintosh was dramatically different from Xerox’s own, a fact proven by the market when Xerox decided to bring its own product to market, unsuccessfully.
In contrast, Microsoft, acting as a trusted software partner with Apple in the Macintosh program, essentially took Apple’s technology verbatim and brought it to IBM’s PC platform. Apple sued Microsoft along with a couple other companies who were doing the same thing. However, Apple did not sue other companies who were developing a windowing operating system for independent hardware platforms not aligned with the IBM PC monopoly, including Atari’s ST, Commodore’s Amiga, and the original BEOS from Berkeley Systems used by the C64. None of those were attempting to steal the value of Apple’s work on the Mac and apply it to IBM, the company’s largest hardware competitor.
But that’s exactly what Google is doing today: ripping of the iPhone experience and then giving it away to WiMo hardware partners like HTC. Unlike Microsoft, Google isn’t doing it to sell the operating system software (there’s no money in that, as Microsoft has proven over the last decade of trying to license WiMo). Google is doing it to monopolize mobile advertising in an assault on WiMo. It just so happens that achieving one’s goals through theft is easier than doing original work. But it isn’t legal, nor without consequences.
Whither the Apple Google Partnership?
So with Android, Google is being a bit like Microsoft in stealing the Mac experience for the PC, and a bit like Microsoft in backstabbing its former partner to take over all the business for itself, both in the sense of how Microsoft jilted Apple in Mac software, and how it betrayed its alliance with IBM’s OS/2 in order to promote its own Windows. But the thing is, Google can be a rogue monopolist with immunity because this isn’t technically illegal in any sort of actionable way until laws are egregiously broken, and nobody seems to be big on policing anti-trust laws anywhere but Europe.
Additionally, it would be a big mistake for Apple to take on Google directly. The two have a healthy alliance in a number of respects. Google pays Apple millions of dollars to funnel it search requests from Safari, both on the desktop and on the iPhone, iPod touch, and soon, the iPad. Apple also uses Google to power iPhone Maps and a variety of other services. Neither company would benefit from losing the other partner, and this is business, not an irrationally melodramatic soap opera with vindictive malice being the primary motivation for all activities (even if the tech press likes to paint everything that way for your entertainment).
It does appear that Apple is working to hedge its bets however. Rumors say the company is considering (or at least threatening) to align with Microsoft on search. Right now, Google IS search, but if Apple’s high profile customers were shifted to Bing by default, not only would few of them even notice, but Google’s monopoly on search would be instantly erased on mobiles and significantly tarnished on the desktop. Microsoft would gain major crowing power, and suddenly be able to begin leveraging its other monopolies far more powerfully against Google in search. Microsoft would suddenly be able to be taken seriously in search, something that hasn’t been the case for a decade.
This all happened before
This is a delicate balance for Apple. The last time it helped Microsoft that dramatically was in application software, back in 1982. Steve Jobs noticed that Bill Gates couldn’t break into the DOS apps business despite lots of trying, so he offered Microsoft the opportunity to leverage the Macintosh to gain visibility. This kicked off Microsoft’s Office business, and by the end of the decade, Microsoft was finally in a position to leverage its DOS monopoly to promote its Mac apps (Word, Excel and Powerpoint) on the IBM PC in place of the existing leaders in productivity apps (WordPerfect and Lotus 1-2-3).
Microsoft paid Apple back by doing its best to kill the Mac, and it took a decade for Apple to bounce back to the point where Mac OS X is now a painful thorn in Microsoft’s side and Apple’s own iWork for iPad is now shaping up to be the first real multitouch office suite.
However, that memory of the unintended consequences of aiding an unscrupulous partner isn’t lost on Jobs, and his company simply won’t allow another company to convert its functional partnership into an abusive relationship again (which is also why Google Voice isn’t on the iPhone). But the answer to this problem does not lie in suing Google, because Google does not really even own Android. Nor can Android be sued, any more than Linux.
But this is not anything like Microsoft suing Linux
Microsoft couldn’t sue “Linux,” because it’s just an idea, not a legal entity. Instead, Microsoft mounted a PR campaign to strike fear, uncertainty and doubt in the minds of companies that might use Linux by announcing that it had a bunch of patents that were being violated by open source software, all while refusing to say what any of those patents were. Had it done that, the Linux community could have written loops around Microsoft’s patents to avoid any infringement.
However, Microsoft didn’t want to end infringement of its patents, it wanted to stifle Linux development. Apple isn’t in the same position, because it isn’t presiding over a monopoly under assault by open source alternatives. Apple is promoting a premium product that is sold as an alternative to lowest common denominator mobile platforms. So Apple actually does want to end patent infringement. But it also wants Android development to continue, because the best way to keep monopolies from occurring is to have lots of competition.
Android has played a significant part in killing any prospects for WiMo, and is currently offering some challenge to not just Apple but also RIM and Symbian and WP7, as well as fractionalizing developer interest in Flash and Silverlight on mobile devices. Apple can best thrive when there are the most competitors involved, each duking it out for customer attention and developer interest. That makes it easy for Apple to differentiate itself as the premium option.
A monoculture of Android, WiMo, Symbian, Flash, or anything else would make it much harder for Apple to sell itself as a viable premium alternative, just as Apple has long languished in many markets as the outsider platform with the Mac.
Microsoft’s Unwinnable War on Linux and Open Source
It’s the hardware
Apple, like HTC (and by extension Android as a platform in general terms), makes its money selling hardware. Google doesn’t really create or sell any Android hardware, it just rebrands HTC stuff, just like a number of other companies do (such as Palm’s old WiMo-era Treos).
By aiming its patent infringement case at HTC directly, Apple not only prevents Google from taking the value of its iPhone research and giving it away to the Chinese simply to monopolize the mobile adware market, but it also sends a warning shot across the bow of other Android makers hoping to shamelessly clone the iPhone.
Motorola and Sony Ericsson, the “death’s door Android licensees,” are not going to tempt fate in trying to copy the iPhone after seeing Apple embroil HTC in a long term lawsuit that neither of them could afford to wage. Nokia, LG and Samsung are all going to similarly be wary of ratcheting up a war surrounding smartphone patents. They’ll also be that much more concerned about the long term prospects of Microsoft’s WP7, which is, at least on the surface, as purposely infringing as Microsoft can get without actually delivering any substance.
Apple has no interest in suing Android out of business. It represents the same progressive use of open source code as the iPhone OS, from its *nix kernel to its WebKit browser. Android prevents just enough other hardware makers from going on their own to keep Apple distinguished as the only viable company marketing its own unique platform, while at the same time bleeding those licensees in a war to stand out as Android makers.
The Motorola Droid’s biggest enemies are the Google Nexus One and other HTC models. Apple doesn’t want to focus all that fighting at itself. It merely wants Android hardware makers to develop their own technology rather than infringing the iPhone’s patents.
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