It is not possible to negotiate separate agreements with all wireless OEMs: Google announces NCLAT

In the hearing resumed in the Android matter before NCLAT, Google said on Thursday that it was unable for the tech giant to negotiate a separate Mobile Application Distribution Agreement (MADA) with each individual wireless OEM of the counterparty, which numbers in the thousands. This also applies because the Chamber of Industry and Commerce determined in its judgment of October 20 last year that MADA is not negotiated with the OEMs.

The tech giant also claimed it could potentially face discrimination charges if it negotiated separately with the OEMs.

Thursday was the second day of NCLAT’s hearing in Google’s Android complaint, where the CCI had fined the tech giant 1,337 crore and issued 10 non-monetary directives that would require a change in its business model. Google is expected to resume filings on Friday.

On Thursday, in relation to the CCI’s abuse finding in relation to MADA, Google argued that standard form contracts are common market practice.

MADA requires OEMs to preinstall the entire Google Mobile Suite (GMS), which includes 11 applications from Google as a package, and place those apps on the device’s home screen.

GMS is a collection of Google applications and APIs (Application Program Interface) that support functionality on all devices. GMS includes a wide range of essential Google apps such as Google Maps, Gmail, YouTube, etc.

CCI had identified three issues related to MADA. First, if an OEM wants one of Google’s apps under GMS, they have to take it with the other 9-10 apps under the suite. Second, these apps need to be placed in a specific way – Play Store icon, search widget on, a folder with other GMS apps on the home screen. Thirdly, these apps cannot be uninstalled but can be disabled.

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Google claimed in its filings on Thursday that MADA is non-exclusive and voluntary, giving OEMs the freedom to choose which devices it wants GMS apps on.

Preinstalled apps

Regarding pre-installed apps, Google argued that app pre-installation is inherently necessary for the success of the Android operating system. To ensure that success, Google ensures that a smartphone comes with a “bundle of quality apps” when you buy it, added Senior Counsel Arun Kathpalia, who represents Google before NCLAT.

As a result, the phone is functional when purchased, it was submitted. Google relied on user survey data to back up its filing.

Earlier on Wednesday, the first day of the NCLAT hearing in the Android case, Google claimed to accuse the DG (CCI’s investigative branch) of “confirmation bias” when it mechanically followed the European Commission’s 2018 ruling on a similar matter against the tech giant.

During the hearing before NCLAT Principal Bench Justices Ashok Bhushan and Alok Srivastava, Google had also argued that the CCI ruling showed no “impact” of its alleged anti-competitive practices in the marketplace. It was also alleged that CCI ordered an investigation based on complaints from its research associates.

The Principal Bench also decided on Wednesday that the interveners will be heard in the appeals after the arguments of Google and CCI have been completed.

The three interveners in the case are Epic Games, MapMyIndia and OS Labs. Amit Sibal acted on behalf of Epic Games and Rajshekhar Rao represented MapMyIndia.

Regarding “confirmation bias”, Google claimed that DG mechanically followed the European Commission’s order in the Android case without independent verification and investigation according to India-based evidence.

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In 2018, the European Union fined Google a record €4 billion.

Simply put, confirmation bias occurs when a person gives more weight to evidence that supports their beliefs and underestimates evidence that might refute them. It’s a tendency to interpret new evidence as confirmation of one’s beliefs.

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