Google has submitted before the NCLAT that it was not locking up Original Equipment Manufacturers (OEMs) as distribution channel for YouTube and asserted that competing providers of Online Video Hosting Platforms (OVHP) Apps are not foreclosed by the tech giant’s Mobile Application Distribution Agreement (MADA) with the OEMs.
By tying Google Play with YouTube, there is no foreclosure of competition and rival OVHP Apps can also get themselves pre-installed and have a revenue sharing arrangement or any other arrangement with OEMs, Google’s Counsel Arun Kathpalia submitted to NCLAT on the sixth day of hearing on Monday in the Android appeal matter. These submissions came as regards the competition effect of Google Play’s tying with YouTube.
Onus is not upon Google to bring evidence
Nothing precluded competing OVHP Apps from being pre-installed or downloaded directly, Google submitted, adding that it was not stopping OEMs from pre-installation of rival Apps.
OEMs are not deterred from preinstalling additional apps, including apps that compete with apps preinstalled under the MADA.
Also read: Android case: The story so far in CCI’s epic anti-trust battle against Google
MADA does not prohibit pre-installation and so competing apps can enter into pre-installation arrangements with OEMs.
Onus is not upon Google to bring evidence of arrangements between OEMs and other App developers, it was submitted.
Google submitted that MADA does not have exclusivity and noted that YouTube issue is truly restricted to MADA. Then how can CCI say that MADA prevents others from becoming exclusive, the Google counsel wondered.
“The test is simply whether pre-installation of Google apps precludes competing Apps from being pre installed or downloaded”, Google counsel submitted.
Vertical Apps
Google also said that it was not right on part of Competition Commission of India to exclude certain vertical Apps (music and video on demand) from the scope of “relevant market”. YouTube has music and on demand movies that competes with several vertical Apps, it was submitted.
Background
It maybe recalled that CCI had in its Android ruling held that Google tying Google Play with YouTube produces exclusionary effects by hindering rival app makers’ efforts to compete with YouTube as the device manufacturers are bound to preload YouTube on their devices in order to obtain Google Play.
The tie makes it impossible for rival app makers to pay device manufacturers to exclusively install their apps on Android devices in order to reach users en-masse, CCI had said.
CCI noted that such tying up arrangements reduces the ability of OEMs to pre-install competing Apps thereby harming competition in the market.
“By locking up OEMs as distribution channels for YouTube, Google has further consolidated its dominant market position. The competing service providers are effectively foreclosed by Google’s agreements with OEMs and the competitors are foreclosed from the opportunity to compete on the merits for the distribution of their apps necessary to achieve efficient scale”, the CCI had said.
CCI’s problem with Google’s strategy is that the Google Mobile Suite Apps come pre-installed with premium placement (in the first page) of the mobile phone and they cannot be uninstalled. “Also OEMs are given money to pre-install Google Apps. How can then competitors with lesser money convince these OEMs to pre install their Apps”, a competition law expert noted.
Google on MADA
According to Google, MADA is a voluntary, royalty-free licence agreement. OEMs are free to produce Android devices without signing the MADA—the Android source code is available to anyone on an open-source basis. The MADA is an additional offer, and the MADA does not oblige signatories to preinstall the GMS suite on a single Android device. Instead, OEMs have the option to preinstall the GMS suite on some, all, or none of their Android devices.
Only if they voluntarily choose to preinstall the GMS apps, then OEMs must abide by certain placement requirements. In particular, they must place the Google Search widget, the Play Store, and a folder containing the other GMS apps on the device’s home screen.
MADA is extraordinarily valuable to OEMs as Google agrees to provide OEMs with Play and a set of high-quality apps for free, and OEMs agree to distribute the GMS apps subject to limited preinstallation and placement requirements.
Similarly, Google claims that MADA encourages developers to write Android apps. App developers understand that when OEMs distribute a MADA device, at least one Android app distribution channel (Play) will be preinstalled on these devices