Continuing its submissions before NCLAT for a third day in a row in the Android matter, Google on Friday argued before NCLAT that Amazon has taken contradictory positions while deposing against it (Google) during investigation before the Director-General (DG) of CCI. 

Google contended that Amazon licensed its Android Open Source Project (Apache) for developing its proprietary Android fork viz. Fire OS instead of Android OS. 

This is because Amazon did not want a bouquet of pre-installed Google apps (GMSSuite), which came along with Android OS, as Amazon did not want those apps to compete with its own apps. 

Contrary to this, Amazon submitted before the DG (investigating wing of CCI) that Fire OS failed on account of not having access to the GMS Suite. Google contended that it was wrong on the part of Amazon to say that because of MADA it did not get Google Play and certain other Apps.

Instead of taking this as a measure of GMS Suite’s criticality, CCI has used this against Google’s MADA by holding that Amazon did not want the entire bundle of apps under MADA, but wanted a choice to individually pick apps. 

Fire OS is a mobile operating system based on the Android Open Source Project, developed by Amazon for its devices.

Put simply, Google provides two kinds of licenses — APACHE (AOSP)and MADA licence. If one uses APACHE, then the word Android cannot be used and one cannot get any of the apps of the Play Store. Anybody distributing on Android cannot make such devices run on APACHE. Also Google’s anti-fragmentation agreement stipulates that if one uses Android, then they cannot distribute any Android fork (like Fire OS).

The requirement of bundling GMS Suite does not apply to those who license AOSP, which is a free and open source mobile operating system. 

After three days of marathon hearing, NCLAT on Friday adjourned the case to Thursday next week for further submissions by Google. 

Once Google completes its arguments, CCI will make its submissions. Interveners — US-based Epic Games, Indian Startups MapMyIndia and OSLabs — will be allowed to make submissions in the end. 

The NCLAT Principal Bench comprising Justices Ashok Bhushan and Alok Srivastava on Friday orally remarked that they would look to wrap up the entire final hearing in the Android case before Holi. 

The final ruling has to be issued by NCLAT before March 31 as per Supreme Court direction.  

First two days  

In the first two days (February 15 and 16), Google had mounted several arguments to back its appeal against the CCI ruling of October 20 last year. The crux of the Google arguments in the first two days pertained to how the CCI order failed to demonstrate harm to competition in India; suffers from Confirmation Bias and completely ignores relevant market in India, evidence before it regarding the same and relies on statements/ findings of the European Commission and passes it off as its own — first, in the DG report, and then compounded by the Competition Commission of India (CCI), which condones and confirms the same.

Google has contended that CCI has found fault with the tech giant’s policies without any basis and despite the Android Operating System (OS) having contributed greatly to the tech/ mobile industry and led to a thriving mobile market. Credit for this goes to the pro-competitive policies of Google, according to the submissions made by Senior Counsel Arun Kathpalia representing Google before NCLAT.

Google has contended that nothing in theMobile Application Distribution Agreement (MADA) is intended to restrict from installing other apps, including competitors’ apps. Requiring OEMs to pre-install and prominently place an entire GMS suite (earth widget + play store icon+ folder containing remaining Apps on Home Screen) and stipulating that GMS suite apps cannot be uninstalled but only disabled are “minimal requirements” that ensure functioning device and best user experience. Google’s interest in ensuring the success of Android platform is more than anybody else  and, therefore, minimal requirements cannot be left to other stakeholders, the tech giant has submitted to NCLAT. 

Google has also submitted that MADA and other agreements cannot constitute an imposition because they have been in place since years, prior to the tech giant establishing its dominance in the said markets. It has been highlighted that MADA and other agreements were not signed with OEMs on account of dominance. Also, MADA and other agreements are entirely voluntary and without monetary consideration. The tech giant has also contended that it is irrelevant that OEMs are not in a position to negotiate MADA and other agreements. MADA is a standard form contract entered into with 1000s of OEMs and negotiating MADA will result in non-uniform standards, according to Google.

INTERNS AS COMPLAINANTS

Google has argued that even the complainant in the Android case was not a stakeholder (OEM, App developer or OS developers), but three interns.

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