This came to mind while having a twitter discussion with a FOSS (Free and Open Source Software) research specialist out of Europe, Carlo Daffara, on whether Google was violating Linux intellectual property. He argued that it did not.
However, the list of Android-related lawsuits has risen to a remarkable 37. This includes the recent Microsoft lawsuit against Barnes & Noble, Foxconn and Inventec over patents allegedly infringed by Android. Given all this, you have to wonder what the heck is going on. Android seems to be a litigation magnet and that may be because of a point my new European friend made, that Android isnt a product at all yet most OEMs treat it as if it is.
Google may be intentionally creating the impression that Android is a product when, in fact, it is more of a build it yourself kit. If OEMs approached it differently they likely could avoid the related litigation and better estimate the real cost of using Android. Lets explore that.
Android the ServiceIn my discussion with Carlo Daffara, he said something really insightful: It is debatable whether Android can be classified as a product. Google sells consulting and support, not licenses. Thats true and if you were buying a service that helped you package and build your own OS you would treat that service differently than you would a product, and likely better protect yourself.
For instance, you can either buy a car or you can buy a kit car and build it yourself. If you mix these two up youll likely be disappointed, even if someone pre-assembles the parts because, in the build-it-yourself case, you own the support on the result.
You cant take a kit car into a car dealer and expect them to warrantee it or even know how to fix a problem. With a kit car you are the manufacturer regardless of how much work the company did to supply the parts. Im willing to bet that a lot of folks who buy kit cars dont get this, which is why most kits are never actually assembled (according to an old article I read years ago while thinking of buying one myself. Im actually thinking of buying a turnkey kit car at the moment).
Now if you build the kit car it likely will violate patents held by Ford, GM or some other car company but they wont bother you because there is little exposure. However, if you suddenly open up a chain of dealerships and start selling cars without licensing any technology you are infringing you will likely get to meet their litigation department, which wont be amused.
Android is basically an assembly of technologies Google mostly doesnt own. They wrap these technologies with a service and supply the package to OEMs. But, just as if the OEM had built their own OS from scratch, vetting the IP is up to the OEMs.
In other words they have to make sure they have licenses to use anything that that someone else owns. Like a kit car it is less expensive, in fact basically free. And, like a kit car, the OEM is fully responsible for the result, not Google.
So if you start selling a bunch of Android phones you will likely hear from any one of a variety of attorneys who represent the folks who think they own the related intellectual property.