Monopoly? Google Says App Deals Spur Market

     (CN) – Rejecting claims that it monopolizes the search engines on handheld wireless devices, Google told a federal judge that its contracts actually promote competition.
     Gary Feitelson and Daniel McKee filed the class action against Google in San Jose, Calif., this past May, taking aim at Google’s alleged requirement that equipment manufacturers “preload” Android phones with Google suites.
     The complaint accuses Google of violating the Sherman and Clayton Acts as well as California’s unfair competition law and the state’s Cartwright Act.
     In a motion to dismiss filed Friday, Google said the suit fails to “allege facts to support the necessary elements of claims under federal antitrust law for illegal restraint of trade or actual or attempted monopolization.
     Pointing out that it provides a service, and that the Clayton Act applies only to “tangible commodities,” which Google does not offer, Google said the federal law is inapplicable here.
     Google also disputed that its licensing and distribution of “free mobile software applications” to equipment manufacturers like Apple somehow caused consumers “to overpay for their Android mobile devices that were preloaded with these free apps.”
     “Google licenses its Android operating system at no charge to OEMs [original equipment manufacturers] as the backbone of the mobile devices they manufacture, and through separate mobile app license agreements – called Mobile Application Distribution Agreements (‘MADAs’) – Google allows OEMs to preload a suite of free Google apps onto these Android devices,” the motion states. “Of course, both the Android operating system and the Google apps are entirely optional for OEMs to use on their devices.”
     The 35-page motion describes the allegations as “self-defeating.”
     “Google’s conduct is not only fully consistent with but actually promotes lawful competition,” Google wrote.
     Rather than claim that Google’s contracts “prevent rival search engines from reaching consumers through the various distribution channels available to them,” the plaintiffs have merely challenged Google’s desire for “prominent placement” of its apps on Android devices, Google said.
     “The complaint does not allege facts sufficient to demonstrate that (a) any OEM was somehow coerced to preload Google Search on any device; (b) any OEM was prevented from preloading an app of its choice on a device; or (c) any consumer was prevented from obtaining the apps that he or she desired,” the motion continues. “In light of these pleading deficiencies, it is facially implausible to assert that Google’s rivals are unlawfully foreclosed from the ability to compete for access to consumers. As a result, plaintiffs fail to allege any actual foreclosure of a relevant antitrust market, which is a prerequisite to a cognizable antitrust claim.”
     Manufacturers are free to load rival search engines and other apps, and users like McKee and Feitelson are free to download and use rival apps, including rival search engines that they can set as their default search engines, the company argued.
     Google is represented by Brian Rocca of the Bingham McCutchen law firm in San Francisco.

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