[joebadmo]

It's weird to me that Gruber claims, like he did in a recent episode of his podcast with Dan Benjamin, that he's not anti-Google. I mean, why deny something that's so self-evident?

His arguments here are just so disingenuous.

"So if Google had acquired the rights to these patents, that would have been OK."

Yes, because Google isn't forming a cartel to stifle competition.

"It’s OK for Google to undermine Microsoft’s for-pay OS licensing business by giving Android away for free, but it’s not OK for Microsoft to undermine Google’s attempts to give away for free an OS that violates patents belonging to Microsoft?"

Yes, because Google isn't using an artificial barrier (the patent system). And because those patents are bogus. Because most, if not all, software patents are bogus. That's pretty clearly Google's stated position.

"First, the “estimate” of $1 billion was partially set by Google itself."

But there's no denying that this is by several times the largest amount ever paid for a patent portfolio.

"They’re effectively arguing against the idea of the patent system itself, simply because Android violates a bunch of patents held by Google’s competitors."

Yes they are arguing against the patent system, at least for software, as do many in the industry. There's nothing hypocritical about that.

"Google supporters claim that Google only wants to use patents defensively. But what exactly does Google need to defend against, if not actual patents Android actually violates?"

This argument betrays either a very weak understanding of how defensive patents work or a deep dishonesty of argumentation. Maybe both. This argument can be applied to the very idea of defensive patents.

It's conflicting that someone who's so obviously intelligent and often terribly insightful (not to mention witty) can be so willfully dishonest.

I'm going to back to only reading Gruber's writing on Apple, and ignoring his writing on anything else.

[danilocampos]

"Yes, because Google isn't forming a cartel to stifle competition."

Hmm. I'm not so sure. There's a way to see Google's behavior where what they're doing is precisely that.

Predatory pricing exists when you try to take over a market by selling something so cheap, other competitors are driven out – or prevented from entering, since they couldn't recoup the costs involved in developing a product.

In league with their manufacturing partners, Google has their own cartel, attempting to homogenize the smartphone landscape under a single, free OS.

The incentives are obvious: it's much easier for Google to make its ad money if it controls the next big platform.

They may have dressed it up as pious and open – but for their purposes, it's a land grab. Is it anticompetitive? I'm not sure. My antitrust scholarship began and ended with The Microsoft File back in the 90's. But I'm also not sure it's any better than whatever satanic pact they are intimating has been formed by Apple and Microsoft.

Google's argument here is summed up as "You could trust us with those patents. But we didn't get them. You can't trust the guys who did get them." I'm pretty sure at this scale, with this much cash on the line, business just doesn't work that way. Google will run over anyone to keep their ad money flowing, just as Microsoft will run over anyone to keep their license money flowing. Why should we side with one cause over the other?

[smokeyj]

> Predatory pricing exists when you try to take over a market by selling something so cheap, other competitors are driven out

This is what happens when innovation threatens dinosaurs. Phrases such as "predatory pricing" exemplifies a fundamental misunderstanding of how pricing works, or markets in general.

People forget the whole point of the market is to serve the consumer. The point of the market is not to protect the interests of old tech giants because they can't compete with free. They're willing to prevent consumers from enjoying the satisfaction that Android has to offer because they want money for doing what Google offers for free. By this logic I should start a search engine that charges $10 a search, then sue google for anti-competitive practice.

Everything about business is predatory. Every time a company releases a better product it is predatory to their competition. Offering an edge your competitors can't handle is kind of the point. If Google's pricing is so "predatory", why doesn't the competition do the same? Because they're ethical?

[danilocampos]

> Everything about business is predatory.

By that reasoning, Google should have either bought the patents or taken their lumps when they lost, right? If business is inherently predatory, whatever predatory groups wish to form are free to do so in the advancement of their own interests. Why is it for Google to bandy about anticompetitive concerns, crying "DOJ!" but not their competitors?

[Rusky]

No, because patents aren't a normal part of business. They're an artificial limitation by the legal system intended to promote innovation but instead are promoting senseless law suits by companies who can't/don't want to deal with normal business.

[smokeyj]

Anti-competition isn't an empirically observable phenomena. In theory it was supposed to serve the consumer, but there is a disconnect between the alleged intention and reality. Kind of a big problem. Preventing a company from offering a free product in no way serves the consumer.

I don't want to imply google is more ethical than the competition, but in this instance calling for an abolition of patents is in line with my personal views, which is markets should serve the consumer. I have no unconditional support for any of these companies.

[triaboat]

Preventing a company from offering a free product in no way serves the consumer.

In a general context, a company practicing 'predatory pricing' may do so to drive the other competitors out of business. Once that happens, it's free to raise prices to monopolistic levels which would end up hurting consumers eventually.

[smokeyj]

> Once that happens, it's free to raise prices to monopolistic levels

These fears are not based on evidence. When has someone released a free product only until they wiped out all the competition, proceeding to jack up prices? I mean, once they jack up the prices there is an established market ripe to pick customers from. Furthermore, the temporary profits, if any, would only be temporary and would be a greater cost to their corporate image.

[gaulinmp]

Thank you for raising this point, because it's only in this case that lower (free) prices are anti-competitive. If the company raises prices to _above_ fair market value after their artificially low prices have driven out competition then the DOJ comes after them. If they leave the product free forever, that's not a problem because it's good for the consumer.

So my question to the Google nay-sayers is do you expect Google to raise prices on Android once they have forced MS and Apple out of the smartphone market? Or do they just have a superior product model in which they can offer free software and make money on ads while their competition must charge for the software. I personally don't think they will ever raise Android prices so it's just good competition.

[danmaz74]

Don't forget that Android is open source (except version 3, but we're talking about phones now). This means that if Google decided to charge for it, they could only do so on new versions, and anybody could start from an old one, fork it and bring it further. This is completely different from free non-open-source software, where it could be actually possible to raise prices once the competition is wiped out.

[dstein]

Google almost certainly does not intend to suddenly start charging for Android once iOS and Windows7 are out of the picture.

More likely their intention is to keep it free, but with additional "conditions" such as Google search being the only way to find information. Mandated use of Gmail, Google Docs, Calendar, Contacts. Heavily integrated Google Plus social features like chat, blog, and photo sharing.

Google won't need to charge for Android because there will not be a way to avoid a Google tentacles if you use their OS. Google is trying to burn down the ecosystems of it's competitors with free products and make money by being the gatekeeper of your every activity with a smartphone.

[extension]

Competing in a free market is ethical. Abusing a flawed legal system is unethical. Who wins or loses is irrelevant. The issue is who is playing fair and who is cheating.

[davorak]

Andriod is offered under Apache License, Version 2.0[1]. Which is a part of Open Source Inititive[2]and part of their mission statement is "an end to predatory vendor lock-in."

Reading Apache 2[3] it looks like "an end to predatory vendor lock-in" is acheived by making it possible for anyone to use the source including Microsoft and Apple. If the land can be used by anyone it is hard for me to think of it as a land grab.

[1] http://source.android.com/source/licenses.html

[2] http://www.opensource.org/

[3] http://www.apache.org/licenses/LICENSE-2.0

[joebadmo]

That argument is fair and interesting, but it has no bearing on the current issue:

"So if Google had acquired the rights to these patents, that would have been OK."

It's in no way hypocritical for Google to try to acquire the patents and then, on subsequent failure, condemn their acquisition by the opposing consortium.

I'd be willing to entertain arguments along the lines of Google's anti-competitive behavior, but I find their stance on patents is cogent and consistent. I find Gruber's argument to be, OTOH, totally disingenuous.

[kelnos]

Predatory pricing exists when you try to take over a market by selling something so cheap, other competitors are driven out

This doesn't really hold for something that doesn't have to be physically "produced" like a software license. If that were the case, you could accuse every open source alternative of engaging in predatory pricing. Usually you see this term applied to physical goods, when a company sells them at or below cost for the sole reason of forcing out a competitor who cannot stay in business doing the same.

... or prevented from entering, since they couldn't recoup the costs involved in developing a product.

Well, Android started as a little company that Google eventually bought. There's no reason why someone couldn't do something similar. The barrier of entry is pretty low, at least for the software stack. Getting it onto real devices is another matter, but I don't think that part is particularly relevant here.

Hell, there's no reason why MS couldn't license WP7 for free. They just choose not to.

[Drakeman]

It's been a while, but a long time ago I heard the phrase, "The Rolling Stones are not in the music business, they're in the t-shirt selling business." In that way, I think if you examine Google's practices and its strategy with Android, it's that Google is an advertising company. It's where all their money comes from. Microsoft, Apple, and Oracle are traditional software companies in the sense they derive their profits from consumers and businesses purchasing services.

> They may have dressed it up as pious and open – but for their purposes, it's a land grab. Is it anticompetitive? I'm not sure.

Well, then, isn't GNU/Linux in general anti-competitive? Or free-libre software since many developers don't charge for services?

As for Google's trustworthiness with patents versus patent-abuse, anyone know a site with a good summary of Google's patent disputes?

[statictype]

Predatory pricing exists when you try to take over a market by selling something so cheap, other competitors are driven out – or prevented from entering, since they couldn't recoup the costs involved in developing a product.

Fair point, and that got me thinking:

Would you say the same about the iPad?

Would you say that Apple is stifling competition in the tablet space by making a tablet that's really good and reasonably priced? That's also technically speaking, stifling competition right?

Yet, I don't think anyone would argue that Apple is doing anything unfair.

So what's the difference?

[danilocampos]

I think you'd have to look at the margins and intent involved.

If Apple was foregoing any margin, and perhaps even operating in the red in attempt to prevent competition, that would get a little touchy. For example, if tomorrow Apple slashed the iPad's price to $150 just to fuck over the rest of the market, that'd be weird.

But the thing is, Apple isn't invoking the DOJ or crying "anticompetitive." Google is. So they need to have competitively clean hands if they want that to mean something. I'm not sure they can claim that.

[Lewisham]

I used to really like Gruber, but he's become a very twisted orator, who seems to bend everything to Apple's favor. Maybe he was always that way, and when Apple was the underdog, it felt more like cheerleading than dishonesty.

I felt a decent amount of relief when I dropped him from my RSS reader.

[hn_decay]

He recently posted a link to a story about Amazon removing the various buy bits from their app, which the snarky commentary "That wasn't hard, was it?"

A few hours later he completely changed position to one where he was mildly critical of Apple for making the app less user friendly. I suspect his overwhelming bias just became too strong for even him to bear.

[fpgeek]

Ouch. That's pretty bad. Do you know if anything captured the change (Google cache, Internet Archive, etc.)?

[evmar]

I think it's a bit unfair to call him willfully dishonest. I find Gruber's writing really fascinating in that he's clearly intelligent but he appears to have no awareness of the way he twists things like this. It seems more likely to me that he is a case study in cognitive dissonance.

[fpgeek]

I'd look at hn_decay's comment about Gruber's response to the Amazon "buy button removal". That's getting pretty close to willful in my book (especially since he made the change without noting it).

[tolmasky]

Its particularly strange because he himself has linked to the NPR story: http://daringfireball.net/linked/2011/07/25/when-patents-att...

It would seem like someone who links to that (and apparently agrees with it), would not say something like "But what exactly does Google need to defend against, if not actual patents Android actually violates?"

[Elepsis]

It isn't inconsistent to be opposed to patent trolls without being opposed to patents in general.

[tolmasky]

His comment was specifically criticizing Google's position of wanting to have defensive patents:

    Google supporters claim that Google only wants to use patents defensively. But what exactly does Google need to defend against, if not actual patents Android actually violates?

He is basically scoffing at the very idea of defensive patents. Someone who understands and accepts the concept of patent trolls should also understand the strategy of defensive patents and shouldn't hand wave it away.

This should be particularly obvious in the Nortel case because everyone was theoretically an infringer until the very moment that someone won the bid, at which point the winner magically becomes non-infringing and the loser is all of a sudden an "idea stealer".

Just think about it this way: had Lodsys or Intellectual Ventures been able to afford Nortel's patent portfolio they'd be suing everyone right now and I can guarantee Gruber would not be saying "well, Apple did violate actual patents", instead he'd be calling it patent trolling.

[Elepsis]

Isn't the whole problem with patent trolls that defensive patents don't protect you against them? For better or worse, the current system is largely based around mutually assured destruction. The patent trolls don't make any products, so they don't actually have anything to lose from the assertion of these defensive patents against them.

It seems like what Gruber is actually saying is that the patents Google is violating are legitimate, invented and/or owned by companies that are actively making products based on those patents. The fact that some of those companies (Apple, for instance) may choose to then enforce their intellectual rights doesn't make them patent trolls; having your company's sole business be suing people over violations of patents you purchase makes a company a patent troll.

[tolmasky]

You have the answer in your own comment:

    For better or worse, the current system is largely based around mutually assured destruction.

That is what defensive patents are. Google is saying that they want patents so that no one will attack them (because then they'd sue back, hence bringing on said mutually assured destruction).

    It seems like what Gruber is actually saying is that the patents Google is violating are legitimate

Do you think Gruber has read these patents? Also, it doesn't even matter since they were NORTEL'S patents to begin with, so Apple was violating them too up until the point where they bought them. If these are really valid patents, why wasn't he complaining about poor Nortel's IP being infringed on by Apple when the iPhone came out?

[sasidharm]

Gruber is no Google-lover, but in this case he is right on the money for calling out Google's hypocrisy. What if Google won the Nortel patents with their pi billion dollars bid?

[Lewisham]

Do you know of any case of where Google has used its patents offensively? I don't.

[kljensen]

Here are all the patent cases in which Google was a plaintiff. They appear to all be declaratory judgments against NPE defendants.

4:2004-cv-04922 Google Inc. v. Skyline Software Systems Inc. 5:2005-md-01654 In re Compression Labs, Inc., Patent Litigation 5:2004-cv-03934 Google Inc. v. Compression Labs Inc et al 4:2008-cv-04144 Google Inc. v. Netlist, Inc. 3:2009-cv-00642 Google Inc. v. Traffic Information LLC 1:2011-cv-00175 Microsoft Corporation et al v. GeoTag Inc. 1:2011-cv-00637 Google Inc. v. Sourceprose, Inc. 4:2009-cv-01243 Google, Inc. v. EMSAT Advanced Geo-Location Technology, LLC et al

[sigmaxipi]

There is a difference between being a plaintiff in a patent case and using patents offensively. In the Skyline case, it looks like Skyline sued Google over Google Earth: http://googlecopyright.blogspot.com/2007/03/google-prevails-...

[gaulinmp]

Sidebar question: how did you find these? I'm researching a related topic and need to perform bulk searches for patent related litigation data. Any suggestions or advice would be greatly appreciated.

[kelnos]

That makes no sense. How can you sue a non-practicing entity for infringing your patents? If they're non-practicing, they're not doing anything.

[dritanm]

Being a plaintiff doesn't always mean you're the one suing. It could be an appeals court case where the positions are reversed. Also, you could sue an NPE in order to invalidate their patent(s), or to seek an injunction.

[doe88]

But what if Google had won the bid and was using these patents (they hadn't developed) defensively to defend against the fact they have violated patents developed by others companies, would it more fair? I don't think so.

[Lewisham]

No, but you can play "what if" games to death. You can't be slighted as being hypocritical for something you haven't done yet, which is what Gruber is claiming.

[Toady]

Complaining about huge bids that are more than what these bogus patents are worth is pretty hypocritical if you yourself bid over $3 billion for them.

I think Google is whining because they didn't win, and they know communities like this are anti-patent and will automatically side with them if they portray it a certain way. It's hypocritical to complain about the patent system and that competitors won patents you also wanted and were bidding on.

[shawndrost]

Sure, maybe it'd be unfair (in your view). However, Gruber paints it as hypocritical, which it's not. Google's actions (and the blog post under review) reflect a cohesive ideology: software patents are bunk.

[MikeCapone]

The problem is, everybody infringes countless software patents because the system is broken. What matters is how you play the game from that starting point. Google wants to be able to defend itself, while others seem to want to gang up on Google and attack it.

[andylei]

then it would be hypocrisy. but they didn't. so its not hypocrisy.

[Caballera]

So what? Google is a relatively new company. To say they would spend all that money on patents and then not attempt to enforce them is very naive.

[Lewisham]

Sun Microsystems did exactly what you are saying, and Google has gone on record, multiple times, saying it would do exactly what you are saying.

It is not without precedent at all.

[KaeseEs]

I don't think Google wants to follow Sun's example of developing amazing tech and going out of business anyways because the folks in charge don't know how to run a business.

Not that non-assertion of patents was necessarily a contributing factor to Sun's demise.

[galactus]

Did the soviet union ever used their nukes offensively?

[sasidharm]

That's because they don't have any patents of their own to sue with. Before they acquired IBM's patents, they had a total of less than 800 patents.

[Caballera]

Exactly, funny how the android fan boys down ranked your comments.

[joebadmo]

Then they would have unhypocrytically continued to use them only defensively. Can you explain exactly how Google is being hypocritical in this case?

[sasidharm]

They are being hypocritical by saying that Apple and Msft bid many more times than what those patents are really worth, when Google itself bid upto 4 billion dollars. And what gaurantee does Google provide that they wouldn't sue competitors aggressively? Dont tell me its because their 'motto' is Dont be evil.

[icebraining]

>And what gaurantee does Google provide that they wouldn't sue competitors aggressively?

So they are hypocritical because of something they haven't done? By that logic, everyone is an hypocrite.

Has Google ever actually sued competitors aggressively? Not that I know of.

[Rusky]

The difference is that even if Google were to try to use those patents offensively against Apple and Microsoft, they probably wouldn't have much of an impact- Google's motivation was defensive, and they pretty much had to try for those patents.

On the other hand, Apple and Microsoft are /already/ having an impact on Android and these patents would only strengthen them- their motivation was offensive and they were the ones who inflated the prices just to hurt Google.

[yanw]

Then it would be perfectly fine, they would be able to stop Microsoft and its elk from extorting patent fees, but the whole issue lies in that the patent went to Microsoft and Apple and others like them for the sole purpose of extorting Android.

[olalonde]

> It's weird to me that Gruber claims, like he did in a recent episode of his podcast with Dan Benjamin, that he's not anti-Google. I mean, why deny something that's so self-evident?

Because he's not really anti-Google, he's just pro-Apple (read Apple fanboy).

[blutonium]

That was Benjamin and Arment, not Gruber.

[AllenKids]

To stifle competition one not necessarily needs to form a cartel.

To stifle competition one can simply flood the market with goods priced under cost.

Besides, Google formed a cartel with Intel, they lost.

[icebraining]

Android is not priced under cost, it just has a different revenue model. Stifling competition happens when a company uses their cash reserves to sustain a product which is losing money, forcing smaller companies to leave the market. This is not what they're doing, at all.