Five Reasons Apple May Not Dare To Sue Google

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From my blog The New Persuaders:

Now that Apple has scored a decisive win over Samsung in its smartphone patent trial, the big question is whether the maker of the iPhone and the iPad will go after the real enemy: Google. The search company is the maker of the Android software underlying Samsung’s and many other companies’ mobile devices, after all.

But a direct shot at Google looks unlikely at this point for a variety of reasons:

* Apple’s schoolyard bully strategy of going after the legal weaklings like Samsung worked like a charm, so it’s likely to continue going after hardware firms such as HTC and the now Google-owned Motorola Mobility, rather than Google directly. There are many other cases involving those companies, as well as Samsung, around the world–plenty to keep Apple busy, especially now that it has such a clear victory to build upon.

Indeed, patent expert Florian Mueller of FOSS Patents, a persistent Google critic, thinks Apple is more likely to go after first. As Mueller told Fortune’s Philip Elmer-DeWitt: “If I were in Apple’s shoes the next company I would sue is not Google, but Amazon, which has an even weaker patent portfolio than Google and sells large volumes of Android-based devices with a subsidies-centric revenue model, which is even more of a threat to Apple’s margins than Google’s advertising-based model.”

* Other hardware makers may now decide to settle with Apple, ratcheting down the need for Apple to go after Google. Analyst after analyst notes that with the clear loss for Samsung, the leader among Android device makers, other firms may decide it’s not worth continuing a fight they now seem more likely to lose.

* Apple looks less likely to win a patent infringement case versus Google. For one, Google itself mostly makes only software, and although its Nexus S device co-branded with manufacturer Samsung was identified by the jury as infringing Apple’s patents, it’s the only one and it’s not clear whether a single device provides a strong case for a separate suit. (It’s also not on Apple’s list of Samsung products it wants banned from sale.)

What’s more, Google doesn’t charge hardware companies for using Android, relying instead on ad revenues derived from Android device use, so there may not be much for Apple to sue about. Finally, let’s not forget that Android existed well before the iPhone came out–in fact, Google bought the company that made it in 2005, two years before the first iPhone. That doesn’t guarantee that whatever Google has done with Android since then is on firm patent ground, but it doesn’t seem a stretch to cast doubt in a jury’s collective mind that Android is simply copying iOS when Android the company clearly predates the iPhone.

Not least, Google has pockets deep enough to counter whatever legal threats Apple throws at it. Indeed, this ruling could well galvanize Google’s mostly passive efforts so far to protect Android hardware licensees. Apple may get all it wants from going after hardware producers, given that Apple makes most of its money from hardware itself.

* Apple has already gotten what it wanted from Google with this ruling: the likelihood that Google will have to change aspects of Android to avoid infringement, potentially reducing the competitiveness of Android devices. As Needham & Co.’s Charles Wolf writes: “Google will be forced to design workarounds of the violated software patents, which was the intent of Apple’s lawsuit, not the monetary award. These workarounds are likely to materially degrade the Android user experience relative to the user experience on Apple’s iOS operating system.”

* Google itself may start talking with Apple about some kind of way to avoid litigation. Wells Fargo Securities’ Maynard Um told investors in a note today that the $250 million or more that Apple could get in licensing fees from Samsung–not to mention additional fees from other device makers that may settle or lose in court as well–would be significant enough for Apple to be worthwhile. Add Google in there, and it may be a cash flow Apple can’t resist. After all, it apparently already offered a royalty deal to Samsung, whose rejection led to Apple’s suit.

One might wonder why Apple would feel the need to deal. …

Read the complete post at The New Persuaders.

Why Google’s Nexus 7 Tablet Is Hotter Than Apple’s iPad

Cross-posted with some changes from my blog The New Persuaders:

For once, an Apple product isn’t the hottest piece of hardware on the scene. This week, at least, that highly enviable status goes to Google’s new Nexus 7 tablet.  According to reports, several retailers are sold out of the 7-inch tablet, and even Google’s own online store only has the cheaper, $199 8-GB version. The $249 16-GB version is no longer available anywhere except on eBay for a steep premium.

Of course, you have to remember that selling out doesn’t mean much without knowing how many sold out. This is a classic Apple ploy, though to give Apple credit, it usually turns out later that it sold a ton of whatever sold out. No matter, selling out a product shortly after its release still works great as a marketing tool, as you can see from the coverage gushing about “incredible demand.”

But Google deserves credit for more than just marketing. Now that I’ve tried it for several weeks, with a model provided temporarily by Google at its I/O developer conference, I can tell you why the Nexus 7 is the latest hot gadget:

* It looks and feels, to use the technical term, slick. The fact is, Apple’s products have a look and feel that few can match, and even the Nexus 7 doesn’t quite get there. But it’s pretty damn close. It feels substantial, while substantially lighter, of course, than the iPad. The swiping is very smooth as well.

* The 7-inch size is appealing and convenient. It’s easy to hold it in one hand, while swiping with the other. It also fits in a pants or shorts pocket (or purse, I’m guessing) surprisingly well for temporary transport. So I end up taking it more places than my larger tablet.

* The screen is no Retina like the latest iPad, but it still looks sharp and bright.

* It may not have all the apps, or some of the latest and greatest, that Apple has, but it’s got plenty. And some very nice ones, too, such as Flipboard and my current favorite, The Night Sky.

* Almost forgot–it’s cheap! For $199, it’s less than half the current $399 minimum for an iPad. That makes the Nexus 7 close to an impulse item, or at least a gift that won’t break the bank.

* Uber-reviewers Walt Mossberg of the Wall Street Journal, David Pogue of the New York Times, and even Apple fanboy/Google hater MG Siegler, himself, all like it. So does almost everyone else.

For all that, I can’t help mentioning the downsides. The default screens are a mess of apps, My Library (which features an Esquire cover of Bruce Willis that I really don’t want to see anymore), and recommended apps and magazines I couldn’t care less about (Country Weekly magazine? Really?). You can change the app organization, but at the outset, it’s haphazard, making it hard to find some basic ones at first. In particular, the nondescript icon for Google Play, which seems really key to Google’s ultimate success at mobile devices and apps, doesn’t suggest an app store. And who besides us Google watchers know that “Google Play” is an app store anyway?

As many have noted, there’s not much content in its Google Play store. But that means little to me because I’m a Netflix subscriber and can watch using the Android App. There’s also a Hulu Plus app. (But not Amazon Instant Videos via my Prime subscription, at least not without browser tweaks few will want to bother with; that may be a deal-killer for big Amazon video fans.) The device doesn’t have a rear-facing camera. Since I’m not using a tablet to take photos (partly because, in what is a weird omission, there is no built-in camera app), and since Skype is one of the killer apps as far as I’m concerned, the single front-facing one works fine for me. It’s WiFi only, though again, I wouldn’t pay for another monthly data plan anyway. And with only 8 or 16 GB of storage, you better be comfortable storing most of your stuff in the cloud (I am).

Finally, there’s apparently a problem with the touchscreen, though I haven’t run across it yet, that’s especially a problem for playing games. My own minor complaint about the screen, which I haven’t seen mentioned in reviews I’ve read, is that it’s just a tad too small, or at least the border around the screen is. It’s hard to pick up along the side, because too often I end up touching an icon and launching an app or stopping a video when I don’t want to. The recessed side buttons are a little hard to reach sometimes, too. These are quibbles, though.

Meanwhile, it looks like Apple is readying its own smaller iPad for under $300. That could well steal the Nexus 7’s thunder–especially since it almost certainly will do two or three things better than the Nexus 7 because it’s Apple and because it will be newer.

But for the next few months, at least, Google has a bona fide hit on its hands. And for all the right reasons, not just manufactured scarcity.

Read the original post at The New Persuaders.

Is Zynga the Canary in the Social Games Coal Mine?

Infographic courtesy of Tableau Software (click to see interactive version)

Cross-posted from my blog The New Persuaders:

I stopped playing FarmVille several months ago. Why? I got bored. Apparently a lot of other people are getting bored, too–at least with playing FarmVille and other Zynga games on  their personal computers.

According to a research note from Cowen & Co. analyst Doug Creutz today, social games played on Facebook such as Zynga’s are seeing steadily dropping usage–leading to a fearsome 10% drop in its shares today, to $5 or less.

The reason, he says, is likely that more and more people are playing social games on their smartphones and tablets:

We believe that mobile devices may be siphoning off an accelerating number of gamers from Facebook. Facebook itself is increasingly being accessed by mobile devices, however it is not possible to play Facebook-native apps through Facebook on a smartphone. We believe that over the last two months, trends in the casual digital gaming space have swung decisively towards mobile and away from social, at least in Western markets.

No doubt that’s one reason, and an inevitable one as more people use their smartphones and tablets instead of PCs for many tasks (and fun and games). But I also wonder if enough people are realizing that these games are taking a little too much of their lives. …

Read the rest of the post at The New Persuaders.

We Have Met the Evil and It Is Not Google or Apple: It Is Us

Cross-posted on my Forbes blog, The New Persuaders.

So much talk about evil these days. Google is evil for promoting results from its Google+ social network on search results pages, and even for changing its privacy policy to make clear its services share data. Apple is evil for not coming down hard enough on harsh working conditions at its Chinese suppliers’ factories.

Well, maybe. But if they’re going to be honest, the many pundits piling on to today’s titans of tech need to look up from the screen and into the mirror. Google’s and even Apple’s businesses, warts and all, don’t exist without our explicit participation. As Pogo famously said, albeit in a different context: “We have met the enemy and he is us.”

Now, I’m still not so sure Google’s actions on either score rise to the level of evil by any reasonable meaning of the term. (In fact, the furor over Search plus Your World  makes me think of Pogo creator Walt Kelly’s second most famous line: “Don’t take life so serious, son. It ain’t nohow permanent.”) But it sure looks like Google’s at least edging closer to the evil line than its hifalutin ideals ever seemed to suggest.

For its part, Apple has taken considerable effort improve the factories that produce the gleaming iPhones and iPads we love. But if today’s New York Times story is correct, it’s clearly culpable in its seeming ambivalence about coming down hard on its suppliers exploiting workers.

Fact is, though, these companies get away with things we don’t like only because we let them. As powerful as Apple and Google seem, they both answer to customers and users. That would be us. And unlike politicians, they must answer to us every day–if we insist they do.

But we can’t do that just by bitching about them on blogs. You want Google to back off on personalized search and data-sharing? Opt for the plain results (click the Hide Personal Search button up there on the right), sign out of your Google account, or even delete it entirely. Or try Bing, or DuckDuckGo. Easier than blogging about it! And if enough of you do it, rest assured that Google’s data crunchers will notice, and if they’re as smart as they like to think, they’ll figure out how to change things.

You want Apple to fix its factory conditions? Don’t buy that next iPhone or iPad, and tell Apple why. If enough of you just say no, Apple will notice, and maybe start to use some of those unbelievable profits to change things.

Everything else is just talk. And there’s been quite enough of that already.

Five Small Stories About Steve Jobs

Lots of people who were closer to Apple cofounder Steve Jobs than I have written moving memorials to a man who, in an industry and a region where people love to say they want to change the world, actually did it. The Apple II, the Macintosh, the iPod, the iPhone, the iPad–and Pixar!–none of these would have happened, certainly not in the same culture-jolting way, were it not for Jobs’ imagination and determination.

Because I was busy enough watching Intel create the electronics revolution, chronicling Scott McNealy and Sun kicking Hewlett-Packard’s butt for awhile, and witnessing Jim Clark and Marc Andreessen birth the commercial Internet, I can’t share tales of watching the genesis of the particular revolutions Jobs sparked from a front-row seat. All I’ve got are a few small, even inconsequential tales of Steve Jobs from my brushes with him over the years. But I wanted to share them anyway in the hope that they add a little more color to the life of a man who brought so much to ours.

I met Jobs face-to-face for the first time just before he was to introduce, if I’m not mistaken, the NeXTcube computer in 1990. BusinessWeek writer Kathy Rebello and I visited Jobs to see the machine at NeXT’s offices in Redwood City, Calif. He was his usual charming self–and make no mistake, despite his well-deserved (and self-described) reputation as an asshole, he was very charming. And his enthusiasm was infectious even though I had doubts about whether he could widen NeXT’s wedge between Apple and Sun into a sustainable business.

I remember two things distinctly. One was his focus on the shape and design of the jet-black machine, which I recall him touching fondly. That love of good industrial design is something he clearly never lost.

The other thing I remember is that he nervously fingered the wedding ring on his finger. When I jokingly asked him if it perhaps it wasn’t fitting so well, he launched into a story about his grandfather, who was a machinist (if I remember correctly–though seeing that his adopted father Paul was a machinist, I wonder if I heard wrong). Anyway, he said his grandfather was operating a machine with his wedding ring on, and it got caught in the machinery, removing his finger along with it. So every time he felt the ring on his finger, it gave him a twinge.

Now, this was Jobs before his canonization as the savior of Apple, so perhaps it’s just an example of a CEO trying to make nice with reporters with a personal tale. Still, the story stuck with me precisely because it was such a human, uncorporate story to bother telling.

I also saw Jobs just a couple of times doing his famous product introductions. One was the introduction of the first NeXT machine at a huge gala event in San Francisco in October 1988, if I recall correctly, because BusinessWeek writer Katie Hafner needed help reporting on a NeXT story she was working on and I was the new guy getting sent to whatever needed doing. (She thought she was getting an exclusive, though Jobs apparently promised an “exclusive” to two other publications–vintage Steve Jobs.)

In demonstrating a built-in dictionary that could call up definitions with amazing speed, he said, “Hmm, what shall we look up? How about ‘mercurial’?” That was the most common descriptor of Jobs at the time, and his joke brought down the house. Like I said, he could be the most charming guy in the room when he wanted to conjur up his famous reality distortion field.

The next time I saw Jobs onstage was just three years ago in San Francisco at his introduction of the iPhone 3G at Apple’s Worldwide Developer Conference, helping out my BusinessWeek colleagues and Apple aces Peter Burrows and Arik Hesseldahl. I hadn’t seen Jobs in person in many years, onstage or anywhere else. Of course I knew about his health issues, but as I liveblogged the event, it still struck me how frail he seemed:

Maybe it has been far too long since I’ve seen Jobs speak in person. But he seems a little laid-back, even tired?

As it turned out, this appearance kicked off another round of speculation on his health. Even without the benefit of hindsight today, it felt to me that, at the least, Jobs’ ability to carry Apple entirely on his shoulders was fading.

Update: Oh, how could I forget that photo shoot? For a special issue on Silicon Valley in 1997, BusinessWeek had somehow gathered many of the leading lights of the Valley at that time. I later wondered how on Earth we made that happen, but there’s Jobs on the left, dressed characteristically with more style than the rest put together.

I don’t remember much about Jobs’ behavior during the shoot beyond his huddling with his friend and Oracle CEO Larry Ellison at one point. And maybe that was the point: While there was no doubt he had to be in that photo, he wasn’t yet Steve Jobs, the icon, he was the guy who had just returned to Apple after it bought NeXT and faced a huge uphill battle to save it. Still, he was Steve Jobs; I remember his letting the magazine know that he was annoyed about the photo because his white shirt stuck out from under his vest.

One last story: My wife and I used to frequent a small restaurant in downtown Palo Alto called Caffe Verona. One evening around 1999, more or less, we were getting coffee, and suddenly I noticed that ahead of me was Ellison. That was interesting enough, but then I saw him take his drink out to the small patio entrance–where sat Steve Jobs and his wife.

Being a reporter, and because I think neither recognized me in the dark, I took a seat outside a few feet away, hoping to overhear any juicy details about coming products, Silicon Valley gossip–whatever. Long after my wife went back inside to get warm, I kept nursing my cappuccino and pretending to read magazines. So what did I overhear?

A half-hour of talk about the details of macrobiotic diets.

It was a mildly funny story to tell for years afterward. After Jobs’ health issues, it became less funny. But I always thought it was significant for another reason anyway. Here was one (actually, two) of technology’s leading lights, and they somehow found time to pal around talking about everything but their businesses.

Ultimately, what I remember about Steve Jobs was not the showman, the icon, the visionary. I remember a real human being who just happened to change the world.

Questions About the Google-AdMob Deal–and How the FTC Answered Them

Today the Federal Trade Commission decided not to oppose Google’s proposed purchase of leading mobile ad firm AdMob, clearing the way for the $750 million deal to be closed. Given recent hints that the FTC’s staff might recommend the commission block the deal, the decision was something of a surprise. But as the FTC itself explained, “although the combination of the two leading mobile advertising networks raised serious antitrust issues,” there is in fact ample competition in what is after all still a nascent market.

The investigation raised several questions about not only the mobile ad market but the FTC’s stance on such deals in the Obama era. Here are some of those questions, and the apparent answers:

* Would the deal allow Google to dominate the mobile ad market?

Not at this time, the FTC said, but noted that that was a danger:

Google’s proposed $750 million acquisition of AdMob necessitated close scrutiny because the transaction appeared likely to lead to a substantial lessening of competition in violation of Section 7 of the Clayton Act. Those companies generate the most revenue among mobile advertising networks, and both companies are particularly strong in one segment of the market, namely performance ad networks. The Commission’s six-month investigation yielded evidence that each of the merging parties viewed the other as its primary competitor, and that each firm made business decisions in direct response to this perceived competitive threat.

* Are mobile ads a separate market from other online ads?

I’m not sure why mobile ads, which after all are simply ads that happen to appear on mobile device screens, are really a market separate from other online ads. Marketers, after all, usually view them as potential additions or substitutes to display ads or even search ads, and they can in fact be either of those. And if they view them as separate markets now, it’s likely they won’t stay that way as ad technology firms increasingly offer them as a package to marketers. But it’s clear from the FTC press release that FTC considers the mobile ad market distinct–and furthermore that it doesn’t matter how new it is:

The Commission stressed that mergers in fast-growing new markets like mobile advertising should get the same level of antitrust scrutiny as those in other markets. The statement goes on to note that, “Though we have determined not to take action today, the Commission will continue to monitor the mobile marketplace to ensure a competitive environment and to protect the interests of consumers.”

Mobile ad networks, such as those provided by Google and AdMob, sell advertising space for mobile publishers, who create applications and content for websites configured for mobile devices, primarily Apple’s iPhone and devices that run Google’s Android operating system. By “monetizing” mobile publishers’ content through the sale of advertising space, mobile ad networks play a vital role in fueling the rapid expansion of mobile applications and Internet content.

* Did Apple help Google clear the deal?

Um, clearly. According to the commission’s statement:

The agency’s concerns [about the Google-AdMob deal] ultimately were overshadowed by recent developments in the market, most notably a move by Apple Computer Inc. – the maker of the iPhone – to launch its own, competing mobile ad network. … As a result of Apple’s entry (into the market), AdMob’s success to date on the iPhone platform is unlikely to be an accurate predictor of AdMob’s competitive significance going forward, whether AdMob is owned by Google or not.

* Should Apple be afraid of the FTC?

Very afraid. Or at least it should expect intense scrutiny, if the rather detailed description of Apple’s role in this market is any indication:

These concerns, however, were outweighed by recent evidence that Apple is poised to become a strong competitor in the mobile advertising market, the FTC’s statement says. Apple recently acquired Quattro Wireless and used it to launch its own iAd service. In addition, Apple can leverage its close relationships with application developers and users, its access to a large amount of proprietary user data, and its ownership of iPhone software development tools and control over the iPhone developers’ license agreement.

* Is Google off the regulatory hook now?

Not by a long shot. As the commission said:

Though we have determined not to take action today, the Commission will continue to monitor the mobile marketplace to ensure a competitive environment and to protect the interests of consumers.

Indeed, few experts believe that this decision will have much if any impact on other regulatory concerns about Google’s strength in search ads, its moves into other areas such as display ads, or the privacy implications of its vast data collection.