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Wednesday, 02 December 2020 11:27

ACCC chief should be wary of Google's tactics in Fitbit case

ACCC chief should be wary of Google's tactics in Fitbit case Pixabay

In his quest to determine whether or not he should give the green light for the merger between search giant Google and American digital health and fitness company Fitbit, ACCC chairman Rod Sims would do well to peruse the transcripts of the entire Google-Oracle lawsuit over Java.

That would give him a clear idea of the type of tactics Google uses to drag things on and on and win at the very end – though Sims could just as easily have a detailed chat with Ken Glueck, executive vice-president of Oracle, to get a good idea about these tactics.

On Monday, Sims asked for input into proposals made by Google to facilitate the deal, giving the public time until 9 December to offer their suggestions.

In June, the Australian Competition and Consumer Commission had raised concerns over the Fitbit acquisition, with Sims saying at the time: "Our concerns are that Google buying Fitbit will allow Google to build an even more comprehensive set of user data, further cementing its position and raising barriers to entry to potential rivals.”

A day before the most recent hearing in the Oracle-Google case, in which the latter has been accused of stealing code from Java for use in its Android mobile operating system, Glueck wrote a detailed account of Google's tactics. The case has been going on for the last 10 years.

Of course, Glueck was talking about a copyright case. But Google's approach to other issues is quite often the same.

Glueck said Google's method was to "deny every claim, appeal any adverse decision, [and] run out the clock on every opponent – including government regulators".

"Even nominal 'losses' for Google are really wins: it can appeal fines and courtroom setbacks for years while its market power continues to grow and competitors disappear. And even if it has to pay something in the end, it will be a drop in Google’s very large bucket. It’s 'efficient infringement' at global scale."

In the Fitbit case, the proposed court-enforceable undertaking offered by Google is for it:

  • not to use certain user data collected through Fitbit and Google wearables for Google’s advertising purposes for 10 years, with an option for the ACCC to extend this obligation by up to a further 10 years;
  • to maintain access for third parties, such as health and fitness apps, to certain user data collected through Fitbit and Google wearable devices for 10 years; and
  • to maintain levels of interoperability between third party wearables and Android smartphones for 10 years.

Given those time intervals, and the very real possibility that Sims, a doughty warrior, may well leave his post sometime in the next five years, this could be Google's way of getting a foot in at the door.

Then, as in the old yarn about the camel and the tailor, getting oneself into the tent completely would only be a matter of time.

Who is going to keep track of Google's use of particular data? Is Sims naive enough to accept the company's word for it? If so, I would welcome a call from the ACCC chief, because I have some prime real estate in the Himalayas that I would like to sell to him at a bargain price.

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Sam Varghese

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Sam Varghese has been writing for iTWire since 2006, a year after the site came into existence. For nearly a decade thereafter, he wrote mostly about free and open source software, based on his own use of this genre of software. Since May 2016, he has been writing across many areas of technology. He has been a journalist for nearly 40 years in India (Indian Express and Deccan Herald), the UAE (Khaleej Times) and Australia (Daily Commercial News (now defunct) and The Age). His personal blog is titled Irregular Expression.

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