Home Eric Schmidt, Patents, and the ‘Sword of Damocles’ Defense

Eric Schmidt, Patents, and the ‘Sword of Damocles’ Defense

Populism is a tool that only works in one’s defense when one does not appear big or strong enough to wield it by himself. In its rise to fame, Google has been a champion of populist causes, most notably the association of freedom of ideas with freedom in licensing. Up until recently, the company has been adept in utilizing populism to its advantage, including distinguishing itself against Microsoft, and encouraging others to rally around its relative degree of openness with respect to Android, video codecs such as VP8, and HTML5.

But there’s a reason the phrase “populist giant” does not appear much in politics, or in technology which has in many ways become the successor to politics in the public mind. Last month, the U.S. Senate had an opportunity to remove the populist veil from Google CEO Eric Schmidt, for whom it clearly no longer fits.

After having failed spectacularly, the Senate Antitrust Committee sent Schmidt a huge questionnaire comprised of things it thinks it should have asked when it had the opportunity, disguised as requests for clarification. One of those clarifications concerned an e-mail from Android contributing engineer Dan Morrill, which was quoted in a one-paragraph “story” on the New York Magazine Web site: “We are using compatibility as a club to make them [cell phone manufacturers do things we want,” Morrill wrote. (Online columnist John Gruber’s response was priceless: “See, but it’s an open club.”)

Eric Schmidt’s written response starts with the obvious tack: that it’s one sentence out of thousands that was (quite probably) taken out of context: “Mr. Morrill’s remarks reviewed in their full context express his belief that Google’s efforts to maintain compatibility across different devices could be misperceived as a way for Google to improperly influence manufacturers. Google does not in fact use compatibility in this way. Mobile operating system competition is fierce — Apple, RIM (BlackBerry), and Microsoft are very significant competitors — and carriers and handset manufacturers have many options other than Android.”

Schmidt then goes on to take another tack we’ve seen before. As an open source platform, he goes on, Android enables manufacturers to make any number of adaptations to Android on their own terms (“There are more than 500 models of Android devices on the market”), and that the result is a broad platform of supporting manufacturers, a sort of nation of Android (my term, not his) which demands a special sort of responsibility on Google’s part.

Google has often pictured itself as a caretaker of a rather nebulous concept called “openness,” which can best be explained in the context of Google as the full and unobstructed freedom for any developer to understand, in the light of day, just what it is Google is doing and to whom it is being done. It’s a slick way of responding to the notion, put forth by both American and European legislators, that a company with dominant power in a market has special responsibilities to that market; Google accepts that nomination as though it were a knighthood.

And it is from that lofty perch that here, for one brief, shining moment, Eric Schmidt may have reached too far. In the fourth paragraph of his response to this same question, he reaches for an image born from the most tense period of the Cold War. It’s a faint, though genuine, allusion to the notion of Mutually Assured Destruction, and the reason great superpowers arm themselves.

One of the most significant benefits of Android is that it is free. This has significantly reduced Android device costs and has helped drive down handset prices across the wireless industry. But Android and our partners have recently come under significant fire by firms attempting to use patent infringement suits to drive up the cost of Android phones and jeopardize the Android platform. Google’s intent in acquiring Motorola Mobility is to provide a defense against these suits. Google hopes that Motorola Mobility’s patent portfolio will deter other companies from suing to limit the distribution of Android or from attempting to burden it with unreasonable licensing fees.

Schmidt went for it; he reached for the Kennedy perch.

“Every man, woman and child lives under a nuclear sword of Damocles, hanging by the slenderest of threads, capable of being cut at any moment by accident or miscalculation or by madness,” Pres. John F. Kennedy told the United Nations in September 1961. “The weapons of war must be abolished before they abolish us.”

Ever since that moment, in the history of more important things than software patents, the mental images of MAD have been intertwined: the tripwire of mutual annihilation, and the sharp swords dangling by gossamer threads over the heads of anyone who dared accept the responsibility to trip it. Substitute nuclear warheads with software patents, place Google and the Coalition Contrary to Google Principles (CCGP, whose comrades include Apple, Microsoft, RIM, and Sony) in place of Kennedy and Khrushchev, respectively, and just perhaps the dramatic moment will help Google ascend, in the minds of Congress, to an heroic and courageous level worthy of a medal of honor.

It was one metaphor too many, for in adopting it, Schmidt may have given away the keys to the kingdom. “Google’s intent in acquiring Motorola Mobility,” he most clearly wrote, “is to provide a defense against these suits.” Not to build a phone, not to maintain a strong competitor amid other phone makers, not to make Motorola greater. But to make Google more defensible. An anti-missile shield of sorts. Weapons of mass production are oh, so terrible. But you have to use them, or else the other guy will use you.

For at least a moment there, the emperor has no clothes. But that moment is recorded on paper, and can be replayed again and again. If the U.S. Government ends up blocking Google’s move for Motorola, this may be the final reason.

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