Google, ARA and Open Source Licensing

(This post was earlier published on SpicyIP)

Google, ARA and Open Source Licensing

Motorola’s-take-on-Phonebloks-Project-Ara-2When Google sold Motorola, which it had bought only a short while ago for a certain amount, there was a considerable amount of speculation over the sale. One of the most curious points about the deal, though, was that Google had retained Advanced Technologies and Projects group, the Research and Development wing of Motorola. This division was tasked with developing one of the most revolutionary technologies of the century – the modular smart phone, known as Project ARA. The project aims to build a free and open hardware platform for creating modular smartphones. Google released the Module Developer Kit (MDK) for the project in early April this year, giving the developers whatever they need in order to start making modules for the device. This post will focus on the MDK’s IP licensing policy and its implications. To conceptualise the idea of a modular smart phone, consider the clumsy metaphor of a smart phone made of Lego blocks. All the parts of such a device, the battery, the screen, the transmitter/receiver, et alia, are all entirely separate Lego blocks, all of which are attached to a central Lego block connecting all of them. The ‘central block’ of the Project ARA device is called the ‘endo-skeleton’, and the ‘Lego blocks’ that are the various functioning parts of the phone are called ‘modules’. These modules are attached to the endoskeleton by way of electropermanent magnets, and are easily detachable.

The benefits of such a device are quite evident. For instance, for someone who travels quite a lot but doesn’t use Wi-Fi or Bluetooth services, he or she can exchange the Wi-Fi and Bluetooth modules for a secondary battery module, and maybe even a secondary GPS module, or a secondary transmitter/receiver.  For someone who doesn’t need a lot of battery but wants a faster processor, he or she can put in a secondary processor in place of a secondary battery module. Such a design also allows for easy replacement of outdated or malfunctioning parts. The possibilities are endless.

Google has announced that the device will use its Android OS, and that future Android updates will carry the necessary support for modular smart phones. But while the Open Source model used by Google for its Android OS has worked quite well, some of its policies regarding licensing had recently raised some concerns. This inevitably raises questions about how ‘Open Source’ Google has gone with its ‘next big thing’ in the world of mobile computing, Project ARA. Though Google has not openly claimed that ARA was an ‘Open Source’ project, it had claimed that this project would be a way for feature developers across the globe to walk away from cumbersome licensing deals, and according to various unconfirmed reports had also stated that anyone would be able to build a module without requiring a license. It is also crucial to note that Google defines Project ARA as an “open hardware platform initiative for creating modular smartphones” in the License Agreement given along with the MDK.

With the above in mind, going through the License Agreement for Project ARA, certain terms pop out as rather worrying.

3.2.3 Subject to the terms and conditions of this License Agreement, You grant to Google a limited,  worldwide, royalty­free, fully paid up, and non­exclusive license under Your Intellectual Property that reads on (i) the MDK, (ii) an Endoskeleton, (iii) Module Interface Technology, and (iv) combinations  thereof, to make, use, sell, offer to sell, copy, display, import, distribute, modify and create derivative works from the MDK, Endoskeletons and Module Interface Technology.  These rights will be sublicensable by Google to parties solely to make, use, sell, offer to sell, import or distribute an Endoskeleton.  For the avoidance of doubt, the license grant in this Section does not include any license to Your Intellectual Property in Your Modules that is not necessary for interoperability of Your Module with an Endoskeleton or conformance with the MDK.

This clause gives Google the rights to all Intellectual Property that can be said to be “necessary for interoperability of [the developer’s] Module with an Endoskeleton or conformance with the MDK”.  While the clause in and of itself is not problematic and does not directly relate to the Open Source question discussed later, issues may arise with the implementation of this clause, if what is ‘necessary for interoperability’ is interpreted too broadly, or if there is dispute regarding the innovations made by someone regarding the same.

But moving forward we have Clause 3.2.4, which severely restricts the proceedings a developer might initiate against Google itself, in a manner reminiscent of the ‘chilling effect’:

3.2.4 Google, at its discretion, may suspend its license grant to You in this Section if You institute or threaten to institute a proceeding against Google alleging patent infringement related to Project Ara, the MDK, Module Interface Technology or Modules.

And later in the license agreement we have Clause 3.7, under which Google reserves the right to not only unilaterally change the terms of the license, but also to entirely withdraw the MDK itself at its sole discretion. Having such a clause gives Google the power to refuse developer(s) to work further on the product at any point of time, essentially giving Google the final say in how the product is used, which goes entirely against the Open Source model:

3.7 …You agree that Google may stop (permanently or temporarily) providing the MDK (or any features within the MDK) to You or to users generally at Google’s sole discretion, without prior notice to You.

Between these two clauses, we have the following clause:

3.2.5 You agree not to enjoin in any way (including, without limitation, seeking or obtaining any cease and desist order or any importation exclusion order, or through enforcement of a court­ordered injunction) another party’s manufacture, use, sale, offer for sale, importation or distribution of modules that comply with the requirements of the MDK.

Clause 3.2.5 essentially takes away any power of enforcement of copyright a developer might have to stop another person from using his or her copyright, except for damages.  Essentially speaking, the problem with Clause 3.2.5 is that since a developer will not be able to stop anyone from using his or her innovation even if he or she gets damages, this would act as a disincentive to innovate. Furthermore, the damage litigation itself would be costly, which a small, low-capital innovator may not be able to afford. At the same time, it also means that the developer’s own right to innovate without being sued would be protected. This clause then would perhaps come under the debate of Open Source versus Free Software, but the freedom of choosing whether you want to enforce your copyright or not is taken away from the developers and innovators, which is fundamentally against the Open Source model.

Finally, 3.5 restricts developers from creating or supporting any alternatives to, or competitors of, the MDK, or working on anything that results in a fragmentation of project ARA, that is, on any ‘forks’ of the project:

3.5 You agree that You will not take any actions that may cause or result in the fragmentation of Project Ara, including but not limited to distributing, participating in the creation of, or promoting in any way an alternative or competing developers kit or platform specification derived from the MDK or Project Ara.

On a broader note, since Google has stated that it will be providing for support for modular smart phones in its future Android updates, it is as of yet unclear how the above will affect the Android software on the whole. With each condition, the MDK License Agreement makes Project ARA seem less and less Open Source.

Given Google’ investment in this project, it is perhaps understandable why it doesn’t want to share its research or the product, and why it wants to avoid competition. But then, it is going entirely against the entire concept of ‘Open Source’. While the License Agreement itself was perhaps not meant to be ‘Open Source’ one to begin with, it is undoubtedly a step in the wrong direction for Google and Open Source platforms. This comes in the footsteps of a slew of actions being taken by Google that seem to be taking it farther and farther away from the Open Source model, with Google and Motorola Mobility, the part of Motorola that Google kept after the Motorola-Lenovo deal which was motivated by the relevance of Motorola’s patents in the patent wars to begin with, being accused of a abusing their patents These inevitably raise the question – what has happened to the Google which came out with the Android Open Source Project, wherein it claimed to “[want] to make sure there was no central point of failure, where one industry player could restrict or control the innovations of any other”?

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