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Why the EU will find Google's Android isn't like Microsoft and Windows

The search giant's mobile operating system is in the crosshairs of regulators in Europe. But there are differences between this probe and the last high-profile technology antitrust case, when Europe took on Microsoft.

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The European Union on Wednesday announced a formal investigation into Google's Android mobile operating system. JOHN THYS/AFP/Getty Images

The European Commission on Wednesday hit Google with a double whammy.

Not only did European competition commissioner Margrethe Vestage say Europe is pursuing antitrust charges against Google for allegedly abusing its search dominance to harm competitors, but Google also now faces a new problem: the Commission has opened a formal investigation looking into Google's Android mobile operating system, and whether the company's business practices around it are anticompetitive.

The Android investigation could turn into a large headache for Google, as the operating system -- the most popular in the world for smartphones and tablets -- becomes a more important part of Google's business. In the last year, the company has announced several initiatives around Android's expansion, including a project to bring cheap Android handsets to the developing world, and tailoring the software to power everything from smartwatches to televisions to car dashboards.

The scrutiny underscores Google's wide-ranging influence and the worries among regulators about how the search giant exerts its power, especially as more of the world migrates from desktop computers to smartphones and tablets.

Google's Android software is free and "open-source," meaning anyone can use or modify it. But the Commission's probe hinges on Google's business agreements with partners that make Android devices, and whether the search giant puts unfair stipulations on them. For example, some agreements reportedly force handset makers to set Google apps, like search, as defaults.

Legal experts are quick to compare the investigation to the last high-profile antitrust case, more than a decade ago, in which European regulators challenged Microsoft's practice of bundling its Internet Explorer browser with its Windows operating system.

But while they draw comparisons to the Microsoft case, they're also quick to point out the differences. David Balto, a Washington, DC-based antitrust attorney and former policy director at the US Federal Trade Commission, points out that Microsoft's bundling felt more like the company was trying to prevent new forms of competition from popping up. Google's motives feel different, he said.

"You don't have that sort of defensive leveraging," said Balto. "I think there's a very substantial probability that these practices benefit consumers."

Balto also points to the argument that Android's presence on the market has lowered the cost of smartphones, and it would be hard for the EC to prove an antitrust case if consumers are benefiting like that. (You can get a good Android smartphone without a wireless contract for $100. The cheapest iPhone, without a contract, is $450.)

Android can be found on a wide range of devices including Samsung's Galaxy S smartphones and its Galaxy Tab tablets; the Motorola Moto X and HTC One phones; and Amazon's Fire tablets.

"It's not just Google that has benefited from Android's success. The Android model has let manufacturers compete on their unique innovations," said Android Engineering Vice President Hiroshi Lockheimer, in a blog post. Lockheimer also said that all of those Android business agreements are completely voluntary.

Google declined to comment beyond Lockheimer's blog post.

Another big difference is how comfortable people are with technology these days, said David Olson, a professor at Boston College Law School. Though many consumers 10 to 15 years ago may not have been quite savvy enough to download an alternative Web browser, people now are generally adept enough with smartphones to download other apps.

"The kind of lock-in doesn't feel nearly the same," said Olson.