The Smartphone Wars: Almost boring now…

Ah, yes, I see it’s time for another comScore report and another round of breathless journalism on the state of the U.S. smartphone market. But, you know, these are getting almost boring now. Once again, Android rampages over its competition like Godzilla laying the radioactive smackdown on Tokyo. And once again…everyone acts surprised?

Get with it, people. Some of us (by which, of course, I mean me) predicted this trajectory in the first months after the G-1 launch in November 2008, and have been patiently explaining Google’s grand strategy and the underlying economics ever since. By now this kind of market news should be no surprise to anyone.

Still. This round of alarums and excursions has a few piquant tidbits in it. Let us consider them together.

The top-line figure is that Android gained a full 7% of smartphone market share (to 33%) in comScore’s last reporting period, November 2010 to February 2011. RIM got brutally hammered, losing 4.6% and landing at 28.9%; this put Google at #1 for the first time on just about the schedule I had predicted at the beginning of 2010. Still, RIM managed to stay ahead of Apple, who gained 0.2% over the quarter and hung in there at 25.2%. Microsoft lost 1.3%, landing at 7.7%.

Those are the numbers. What do they mean?

To begin with, WP7′s market performance can only be described as epic fail. Microsoft had a shiny new product, plowed a shit-ton of money into marketing it, launched at the optimum time for the holiday sales peak – and lost share. Other sources indicate that their smartphone share has declined not just in relative but absolute terms; they have fewer users than they did a year ago.

Heads should roll over this, but probably won’t. Because the problem clearly starts right at the top with Steve Ballmer, who – no two ways about it – has been a disaster for the company, so enamored of the Windows franchise that he has let its weight suffocate WP7 and all their other growth prospects. The man is an incompetent buffoon. Which, considering what Microsoft was like when somebody competent was running it, is actually very good news for everyone who isn’t a Microsoft shareholder.

I think these numbers tell us that Microsoft has no hope of being a significant force in the market unless and until Nokia makes good on its end of the NoWin alliance. This is not going to materialize until 1Q2012 at the earliest, if it ever does,

Now let’s take a closer look at RIM. In a market as volatile and subject to network effects as smartphones, a 4.6% share drop looks an awful lot like the knell of doom. Is there any plausible recovery path for them, or are we watching the initial stage of a death spiral?

I think there are two possible endgames for RIM. In one, they manage to fort up around a small userbase of mainly corporate accounts, with share holding in the 5% to 9% range. In the other they just completely tank. It will take three to four quarters before we know which way things will fall, with their market share dropping at 5-7% per quarter. (It was only -4.6% in ComScore’s reporting quarter, but market collapses like this tend to accelerate in progress.)

I don’t see RIM reversing this because they don’t have any near-term prospect of shipping a product that competes well in current conditions. Choosing to replace their aging software stack with an own-brand smartphone OS built around QNX (rather than becoming an Android shop) was a bad, bad mistake; it means they got nothin’ until they can field that new OS, and once they do they’ll have to bid for the attention of app developers from a desperately weak position.

Has RIM got enough users who are held captive by inertia and transition costs to sustain the company anyway? It’s possible – that’s the optimistic scenario – but I wouldn’t bet on it. In any case both scenarios lead to the same predictions over the next three to four quarters.

Not much to say about WebOS and Palm, except that nobody should be making any long bets on them. They’re fading from minisule to microscopic; see the comScore stats for the depressing details.

Now for the big news: Apple’s failure to gain significant share (I’m not sure 0.2% isn’t within the statistical noise range). I think this needs to be interpreted in light of AT&T’s numbers last quarter. According to a theory originally suggested by A&D regular Patrick Maupin, AT&T nearly saturated the iPhone market in 2010. I think he’s right; this would explain the lackluster sales of the iPhone 4V and, now, these ComScore figures.

This leads to a prediction: Apple’s not going to see any serious iPhone share gain in 2011Q2 either. Nor in Q3 unless the delayed iPhone 5 comes out looking really spectacular. The userbase for iPhone is loyal but it’s not expanding. Or, possibly, people who would have joined it under past conditions are now buying iPads. Apple may get a point gain here or there, but the days when it could count on vacuuming up a lot of dumb-phone conversions as a matter of course are over. If the comScore figures prove nothing else, they do show that Android is now the popular choice for that.

What’s certainly not going to happen is any Apple share gains against Android’s existing userbase. If Apple couldn’t fend off the upstart back when it had a clear market and technical advantage, it’s not going to pull off a come-from-behind now that the network effects are operating in Android’s favor.

On the other hand, the brand loyalty of the remaining Apple customers means I don’t foresee Android poaching a lot of Apple’s userbase in the near term either. For the next nine months or so it’s going to be Apple and Android going head-to-head for dumbphone conversions and users bailing out of RIM, with Android winning almost all of those.

I have another reason for confidence in this scenario besides the premise that the iPhone market is near saturated. It’s the pace of device introductions. New Android hotness ships every month, creating a pull that Apple’s long release cycles don’t allow it to duplicate.

And what about the iPhone 5? Apple’s announced delay raises the stakes on that release. It has to be a killer product, otherwise Apple’s growth prospects in the smartphone market are toast. Nothing merely comparable to the best Android phones will do.

At the moment there are at least enough other players in decline that Apple and Android have room to grow without trying to hit on each others’ core customers. I think that will change towards the end of 2011 when Android starts to run out of soft targets. At that point, the minor smartphone players (Palm, WebOS, WP7) will be statistical noise or dead. RIM will be forted up or dead. And the pace of dumbphone conversions in the U.S. will be slowing, if only because most of them will have happened already.

Accordingly, events grow more difficult for me to forecast after about mid-3Q2011. Too many variables: will iPhone 5 be killer, will Nokia deliver smartphones that don’t suck, will RIM crater messily? But until then, expect a regular procession of Android-stomps-everything-in-sight stories. And try not to be surprised.

214 thoughts on “The Smartphone Wars: Almost boring now…

  1. > Other sources indicate that their smartphone share has declined not just in relative but absolute terms; they have fewer users than they did a year ago.

    You don’t actually need other sources for this — you can extract this information directly from the comscore report itself, because the report is a measure of installed base, not units sold during the quarter. I did a little of that here.

    Customers are abandoning RIM, Microsoft, and Palm in droves. RIM might be able to hang on to 5%, but 9% seems a stretch, especially if you assume that conversion of dumbphone users to smartphones is a matter of “when” rather than “if”. Competitive pressures are going to force carriers into throwing enough bandwidth to check your mail into even the lowest cost plans, and power consumption and price of low-end Android devices is going to drop precipitously. When the price of a smartphone, in dollars, battery life, and size, is no more than that of a dumbphone, there won’t be any more dumbphones.

    As far as Apple goes — even assuming that Android’s acceleration stops and we take last quarter’s new Android subscribers (7 million) vs last quarter’s new Apple subscribers (2.2 million) as a proxy for future market share, whatever market share number Android stops at will be 3.25 times as large as the market share number that Apple stops at.

    But, unless Apple continues to show huge growth in iPads that helps to keep their total costs low, they are eventually going to get tired of reducing their margin to shore up unit sales, and will stop being price competitive. The way things are going, I think that in a few years, Android will probably have between 60% and 75% of the market to Apple’s 15% – 20%, with everybody else fighting for scraps.

    Of course, as you point out, iPhone 5 could be a game changer, but I wouldn’t count on that. Cupertino doesn’t have a lock on smart people…

  2. I don’t see RIM reversing this because they don’t have any near-term prospect of shipping a product that competes well in current conditions. Choosing to replace their aging software stack with an own-brand smartphone OS built around QNX (rather than becoming an Android shop) was a bad, bad mistake; it means they got nothin’ until they can field that new OS, and once they do they’ll have to bid for the attention of app developers from a desperately weak position.

    Not if that OS ships with a Dalvik VM and hence can run Android apps! Instant compatibility with the Android application base, plus being the only smartphone platform capable of enterprise-grade security (at least, out-of-the-box) means RIM will have the corporate market sewn up.

  3. I might buy a smartphone when I can get one for $Free$ (or under $50) and without the encumbrance of a monthly-plan, and when I can just buy the minutes I use. Until then a phone is just a phone.

  4. Competitive pressures are going to force carriers into throwing enough bandwidth to check your mail into even the lowest cost plans

    AT&T is acquiring T-Mobile. WHAT competitive pressures?! If anything, cellphone plans are going to get more expensive and less convenient across the board, especially with the seeming death of net neutrality in the United States, as providers block, throttle, or nickel-and-dime traffic that doesn’t come from approved “partner sites”.

  5. > Not if that OS ships with a Dalvik VM and hence can run Android apps!
    So it will be like a partly-proprietary reimplementation of Android? (Sure it’s technically its own platform, but I’ll bet it only ever gets used for Android apps if they do this.) I’m not sure how this is better than just modding Android for security.

  6. Of course, as you point out, iPhone 5 could be a game changer, but I wouldn’t count on that. Cupertino doesn’t have a lock on smart people…

    Smart people aren’t enough. To change the game you need an alchemical combination of hardware and software engineering talent, industrial and ergonomic design expertise, and vision far enough to conceptualize how ordinary, non-smart people might best put technology to use in their daily lives. That narrows down the list of possible players considerably, to Apple and — er, well, I’m sure there are others… no, really…

  7. @DirtCrasher there is no such thing as a “$ Free Phone $”. You will either buy the phone, or it will get paid for via contract lock-in or being charged more for those minutes & MiB that you use. The world we’re moving into now is where instead of being rooked all in all 3 aspects, all those aspects are competing down to marginal cost (<$100, zero, and cheap).

    But on the other hand, there is such a thing as a "free phone", if someone (not the telco) gifts it to you. I know a lot of cases, myself one of them, of people who gave a smartphone to a friend, because when Alice's friends/family/parents/kids have smartphones, it makes life easier for Alice.

  8. >RIM might be able to hang on to 5%, but 9% seems a stretch, especially if you assume that conversion of dumbphone users to smartphones is a matter of “when” rather than “if”.

    And that 9% high end exactly reflects my uncertainty on the latter point. I agree with you that 5% is more plausible.

    >power consumption and price of low-end Android devices is going to drop precipitously

    I completely agree about price, but the prospects for a sharp fall in power consumption are less clear. And this is not a minor technical point, because if power consumption fails to fall drastically relatively dumb phones will survive as a product category among people who need and value long dwell time more than smartphone features. That’s why the most important statistic about Android SoC chips is likely to be their power dissipation at rest (that is, when they’re periodically hanshaking with the cell net but not performing user-initiated data and voice traffic).

    >The way things are going, I think that in a few years, Android will probably have between 60% and 75% of the market to Apple’s 15% – 20%, with everybody else fighting for scraps.

    I think Apple will only keep that much if they sacrifice margin to stay price-competitive – which is not the way to bet, given the company’s history. If they do as you and I anticipate and adopt a luxury-marque strategy I think they’ll drop to around 10%. I base this projection on the history of their competition against the PC.

    >Of course, as you point out, iPhone 5 could be a game changer, but I wouldn’t count on that.

    Agreed; I too give it low odds. But low odds aren’t zero.

  9. Those same numbers say that for its measly 0.2% smartphone share growth, Apple still did better than every Android manufacturer (that Comscore *reported*) combined.

    Maybe I’m reading the report wrong, but even Android on the whole is doing great in America, no company Comscore reported could account for that growth. Samsung is the *real* insignificant noise (0.3% mobile growth vs. Apple’s 0.9%), and LG and Motorola both lost share, unless I’m reading it incorrectly.

    It has to be HTC that makes up the difference (and a few others…in America? Not sure which ones). Otherwise for the life of me I’m confused.

    I don’t why Gartner & IDC both predict Windows Phone 7 will rise ascendant in five years. It’s bizarre.

  10. Smartphones are so 2009, bro.

    The war is IOS vs. Android but esr is stuck focusing at a single battlefield because it’s the only one where his side is winning.

  11. > Maybe I’m reading the report wrong

    You might be, or there just might be insufficient data there. The “by manufacturer” column is for all phones, not just dumb phones, and unlike Apple, Samsung has a significant installed base of dumb phones (which is why its installed base is still over 3 times the size of Apple). So Samsung has declining dumbphone sales partly offsetting its rising smartphones sales. Personally, I think its share gain under those circumstances is pretty darn good.

    The total number of cellphones (dumb and smart) was essentially static. The best I can figure out, given the limited precision of the numbers in the report, is that the number of cellphones stayed the same, or increased perhaps by 1 million handsets.

    However, the number of smartphones grew by 8 million handsets, which would mean a decline of perhaps 7 million dumbphone handsets. We don’t know how many of those discarded handsets were Samsung. They had 24.5% of the total market, but that included Apple and RIM which are smartphone only. Also, we don’t know Samsung’s dumb/smart mix. But, for the sake of argument, if we assume that their share of the dumbphone market was nominally 24.5%, then 0.245*7M, or 1.7M dumb Samsung handsets would have been replaced with smartphones. If we assume, for the sake of argument, that all Samsung’s growth was in smartphones, (with dumbphones at less than replacement rates, due to market change), then those 1.7M, plus 0.3% of 234 million handsets, or 2.4 million handsets total, would have been Samsung’s smartphone shipments into the US market during the quarter.

    Apple shipped 2.2 million, so even if my calculations are off somewhat, I don’t think you can that easily relegate Samsung’s smartphone growth to “insigificant noise.”

  12. > The war is IOS vs. Android but esr is stuck focusing at a single battlefield because it’s the only one where his side is winning

    Have you looked at the relative sizes of the relevant battlefields? (BTW, if you’re counting iPods as a battlefield, you’re probably going to be sorely disappointed at what happens to the whole PMP market over the next two years.)

  13. Well, that compares Apple’s shipments in (one month? one quarter?) to all of Samsung’s share growth from Nov 2010 to Feb 2011. I could have my concepts mixed up but I thought Apple *sold* way more than 2 million iPhones in the past quarter.

    At any rate, Apple’s mobile growth would be (by your calculation and their data, I think) 0.9% * 234 = around 21 million. That smokes 1.7 million recycled dumbphone handsets and 0.3% total growth.

  14. @twilightomni:

    As I try to teach my daughters when they told me they got everything right except the decimal point, the decimal point is actually the only thing that matters. Yours is in the wrong place…

  15. You are exactly right. Luckily my calculator compensated. 0.09 * 234 = 21 million.

    That doesn’t really jive with 8 million smartphones in raw growth, but that’s how the formula works out.

  16. The war is IOS vs. Android but esr is stuck focusing at a single battlefield because it’s the only one where his side is winning.

    Uhm. huh? What other significant battlefields are there? Do you really think tablets will overcome phones, or even be of comparable size? The war will be won or lost at the smartphone level.

    I’m no raving Android fanboy – I just ordered both an iPhone 4 and an Android phone, an HTC Inspire 4G (the Samsung Infuse wasn’t available yet, Eric), as upgrades (from an iPhone 3G and a feature phone). The iPhone will be mine, the Android my roommate’s.

    What I will find interesting is the number of people switching from an iPhone to an Android. Those numbers will be very hard to tease out, if not downright impossible, but as long as it’s a small portion, Apple will print money for years to come…and don’t bet against Apple’s innovation, either. They may not have the highest share of the market, but does that really matter if they’re still selling all they can make and making metric buttloads of cash?

  17. Wait…no, I’m still wrong!

    It’s 200 bajillion!

    …You got me, I’m an idiot. :) 2.1 million phones then, that makes million times more sense to me.

  18. At any rate, Apple’s mobile growth would be (by your calculation and their data, I think) 0.9% * 234 = around 21 million. That smokes 1.7 million recycled dumbphone handsets and 0.3% total growth.

    You are exactly right. Luckily my calculator compensated. 0.09 * 234 = 21 million.

    Except that 0.9% is 0.009, not 0.09. 2.1 million. Roughly equal to the recycled feature phone numbers.

  19. >Not if that OS ships with a Dalvik VM

    Er, in what year? I mean, RIM can wish for a sparkly pony, too, but shipping a new OS and an Android emulation that are reliable enough for high-dollar customers is not something you pull off as a weekend hack. On the most generous assumptions about the amount of progress they’ve already made, we know enough about the timescale of previous smartphone OS development to say confidently that’s it’s an absolute minimum of 24 months out. That’s too late; the smartphone OS market will be either an Android monopoly or a whale/minnow duopoly by then.

    And when it gets here? The history of previous attempts by minority OS players to swipe share by emulation is discouraging (OS/2 is the most notorious example but not the only one). If the Android emulation sucks, RIM loses. If it’s good RIM also loses, because there will never be any native QNX apps written and the transition cost out of RIM will be too low to hold customers.

    As for “enterprise-grade security”, what this actually means is that Joe Sysape at the home office can delete the Outlook folder on your phone when a PHB tells him to do it. But there’ll be an app for that – it doesn’t require RIM’s expensive bespoke infrastructure.

  20. >The war will be won or lost at the smartphone level.

    I agree. But even if that weren’t true, anybody who thinks Apple has an unassailable lock on the tablet market is going to learn differently in the next nine months. Android tablets like the Herotab C8 that sell for $200 and don’t suck have begun to ship, and when Android SoC chips become generally available the trickle is going to turn into a flood and volume prices will drop like a rock.

    Unless Apple follows that price trajectory downward, the iPad line will end up disrupted from below. But I don’t think it can, because it needs more margin than its Asian competitors do. The rest is an elementary B-school exercise.

  21. But there’ll be an app for that – it doesn’t require RIM’s expensive bespoke infrastructure.

    Yes, but is this good enough? Can it be made sufficiently reliable that it can’t by bypassed by simply deleting the app? Baking that into the guts of the OS has value.

  22. I’m really excited to see Ballmer’s new brainchild…the Microsoft branded stores…what a fantastic heap of fail those are going to be. I understand that copying everything that seems successful in the industry is their game but copying the Apple stores is simply braindead. What exactly is going to be the “niche” which they will exploit…a big store full of stuff that runs Windows? I live in a relatively rural area and I already have dozens of choices were I so inclined…which I’m not…and they likely will mirror the Apple strategy and put them where there are even MORE places already selling and supporting Windows. Genius!

  23. Unless Apple follows that price trajectory downward, the iPad line will end up disrupted from below.

    You may well be right about this. But, again, does it matter as much? Even if Apple loses the tablet war thoroughly and retains less than a 10% market share, to go with about the same market share in smartphones, it’ll still have a license to print money. Its shareholders will still be crying all the way to the bank. I’ll still be buying iPhones, too: it integrates with the Mac so well that it makes little sense to do otherwise.

  24. they likely will mirror the Apple strategy and put them where there are even MORE places already selling and supporting Windows. Genius!

    I always thought it was a remarkable bit of chutzpah to put an Apple Store in Willowbrook Mall, about 5 miles down Texas 149 from the Compaq main campus…but we know who won that particular battle.

  25. >Yes, but is this good enough? Can it be made sufficiently reliable that it can’t by bypassed by simply deleting the app? Baking that into the guts of the OS has value.

    Jay, dude, you must not have had your coffee this morning. App gets a key, server wants the key. If you delete the app, your key goes poof. No more access from other apps (they don’t have the key) and when you deleted the app you probably also lost access to whatever local folders you kept around. All this sort of thing can be done well above OS level.

  26. @Jay Maynard:

    > But, again, does it matter as much?

    Eric was responding to “The war is IOS vs. Android but esr is stuck focusing at a single battlefield because it’s the only one where his side is winning.”

    It doesn’t bother me Apple makes good enough stuff to retain its cachet and make tons of money. It would bother me immensely if the phone/tablet market started to look like the PMP market, for the simple reason that phones and tablets appear to be the future of computing, so it is imperative that there be a robust open option.

  27. Jay, dude, you must not have had your coffee this morning.

    Eh, blame it on having to deal with three layers of AT&T ordering. Adding the data plan for Paul’s phone was much, much harder than it should have been.

    As for the rest: that’s great for data the app owns. Can an app encrypt data it doesn’t own and mediate access to it? Including the standard apps that come with the OS?

  28. As for “enterprise-grade security”, what this actually means is that Joe Sysape at the home office can delete the Outlook folder on your phone when a PHB tells him to do it. But there’ll be an app for that – it doesn’t require RIM’s expensive bespoke infrastructure.

    It also means a secure VPN connection to the office intranet, flawless Exchange integration and sync, and optional encryption of the entire smartphone filesystem. These things could probably be put together from open-source parts somehow, some way on an Android platform. But if you’re an IT manager who wants to impress the higher-ups, which is a sounder strategy: rolling (and testing) your own infrastructure from open source parts, or simply buying the pre-made, industry-best-practice solution?

  29. For the simple reason that phones and tablets appear to be the future of computing, so it is imperative that there be a robust open option.

    Right, but does this desire include a stipulation that the robust open solution must have a majority share? (Rather than merely existant and capable.)

    In that sense the mobile computing market is developing quite a bit differently from how the PC market turned did, from the start.

  30. >I’m really excited to see Ballmer’s new brainchild…the Microsoft branded stores

    Are you, like, for real? This isn’t some belated AFJ? Branded Microsoft stores?

    Jeeezus H. Christ on a JATO-assisted pogo stick. I do not think I fully comprehended the vernacular use of ‘lame’ until this moment.

    Man, oh, man. the parody marketing campaigns almost write themselves. “Any color you want, as long as it’s beige.” “The new Microsoft – who knew evil could be so boring?” “The Microsoft Store: Because ‘Bob’ wasn’t bad enough!”

    And what in the fuck are they going to sell, plush dolls and Clippy tietacks? Microsoft has exactly two products that make money and one of them is factory-installed on your PC. Unless the stores are somehow able to sell nothing but Office, all day, every day, they’ll be a net drain on profits.

    Just when you think you’ve plumbed the depths of Ballmerian strategic cluelessness, they pull something like this…

  31. > Can an app encrypt data it doesn’t own and mediate access to it? Including the standard apps that come with the OS?

    I could be all wet, but I don’t think this technical rabbit-hole is necessarily all that germane to the question at hand. Obviously, the google Android team has their hands full with other more important issues right now, including whether they can do DRM well enough to suit Hollywood, so they can bring Netflix to Android.

    Surely at the point google can lock down a phone well enough to do that, satisfying your average CIO should be a dawdle in the park :-)

    Or to put it another way, if it ever looks like securing Android well enough to satisfy the average CIO is the logical next step to continue Android’s market share expansion, I’d sure hate to be RIM.

  32. >But if you’re an IT manager who wants to impress the higher-ups, which is a sounder strategy: rolling (and testing) your own infrastructure from open source parts, or simply buying the pre-made, industry-best-practice solution?

    These things aren’t mutually exclusive. There’s probably an Android shop pulling together the parts even as we speak; it’s too obvious a market opportunity to miss. They’ll integrate it and sell it with a whizzy brand name. The IT manager will be happy because he didn’t have to buy all the NRE His bosses will be happy because they can replace Blackberries with Android phones so cheap they’re basically disposable. RIM will be left holding its dick and wondering where the party went. The way of technology disruption from below; it is ever thus.

  33. @twilightomni:

    > Right, but does this desire include a stipulation that the robust open solution must have a majority share? (Rather than merely existant and capable.)

    Absolutely. For example, Netflix can ignore Linux on the desktop, but they can’t ignore Android on the cellphone. Same thing with the music cartels. In fact, the road to desktop domination for Linux might well start with the cellphone.

  34. > Microsoft has exactly two products that make money

    And what about Windows Server, SQL Server, Exchange and SharePoint? I dunno about USA, but here in Russia they are widely used, and in many places they even are not pirated. I do not know actual figures, but it seems to me that this products are profitable.

  35. Apple’s problem is that it is running out of magic things it can add to the phone (as opposed to the pad/pod).

    If the iPhone becomes just an iPod with the required tethering to iTunes to manage media and such, it is going to die, or at least go comatose. Android will have the different models with the one feature better – one will have a better screen, another a better camera, one with better games, one with two interchangeable long run batteries…

    They may be doing something interesting or even game-changing with their NC datacenter, but google has the shipping crates filled with cheap PCs and hard drives everywhere, and are already doing most things. I’m tempted to convert my mp3s into blank video so I can play them through google docs, and there’s Amazon that also has distributed data.

    Nokia might be pulled down with WP7. They make the simple phones. Any smartphone is 10x more complex. A “free” complex smart phone won’t displace grandma’s jitterbug. I suspect most people with symbian phones aren’t using symbian beyond contacts, bluetooth pairing, or other things Brew does. One that you don’t use for apps. One that you don’t use to connect to the internet with. Not everyone wants a “smart phone”. And how much will the price be for the WP7? Is Microsoft going to be giving WP7 away at an Android price?

  36. The microsoft stores are because the OS is still so horrid that they need someone to tweak it for the better part of an hour to make it decent by removing crapware and install drivers.

    But you reminded me about the most important point on Apple v.s. Android. Ford v.s. GM. Any color as long as it is black. There were multiple iPod variants, but only one iPhone. GM let you buy any color.

    The iPhone works because it is a high-end smart phone. It can’t be a nano. But if you put a cheap screen, cheaper (slow) processor, less memory, what happens to the apple experience?

    But the top end will keep getting more expensive or the margins will shrink. And their slower OODA will cause even more problems here – they will need larger leaps, but without increasing cost.

  37. One more old thing. I’ve had a QNX based touch tablet for over a decade. Anyone remember the 3com Audrey (designed to work with Palm)?

  38. > Are you, like, for real? This isn’t some belated AFJ? Branded Microsoft stores?

    Already open, and as far as anybody can tell MS is still doubling down on their original dubious bet. If you want to find one, check here: http://www.microsoftstore.com/locations

    > the parody marketing campaigns almost write themselves.

    I liked these predictions best:

    * Even at closing time, the Microsoft Store will sometimes refuse to shut down completely.

    * Every time you touch something, a security guards asks you if you really want to be doing that.

    * You may not be able to see it by looking at the aisles, but dozens of unnecessary activities are happening just out of view, all the time.

    (source: http://www.austin360.com/blogs/content/shared-gen/blogs/austin/digitalsavant/entries/2009/02/13/predictions_for.html )

  39. >Obviously, the google Android team has their hands full with other more important issues right now, including whether they can do DRM well enough to suit Hollywood, so they can bring Netflix to Android.

    I bet you Google isn’t making more than a token effort in this direction. Time is on their side, not Hollywood’s.

    Android’s U.S. market share is at 33% now. With RIM in collapse and Apple treading water, there’s absolutely nothing to stop Android from cracking through 50% in three more quarters, and that’s assuming only linear gains. At that point the negotiation becomes completely different. It will no longer be about Google wanting movie streaming to add value, it will be about the studios feeling increasing pressure to do a deal – any deal – in order not to lose access to a majority of the mobile customers.

    Sure, there’s a worry about their client being subverted and their streaming protocols cracked. How long do you think that’ll survive the pressure to look good on their quarterlies? Some money now beats no money forever, and long-term risks will be discounted until they don’t matter.

    So why should Google spend the NRE? Hollywood will show up sniffing for a deal soon enough; it would be a waste of engineering dollars to play up to them. And it’s not like there’s a lot of sympathy for the studios inside Google…

  40. >>I’m really excited to see Ballmer’s new brainchild…the Microsoft branded stores

    >Are you, like, for real? This isn’t some belated AFJ? Branded Microsoft stores?
    >Jeeezus H. Christ on a JATO-assisted pogo stick. I do not think I fully comprehended the vernacular use of ‘lame’ until this moment.

    It’s better than that, Eric. Up here in the Twin Cities, Microsoft decided to put a store in at the Mall of America- *right across the hall from the Apple Store*. You can literally stand in one and look across the hallway into the other. I almost wet myself laughing the first time I saw it…

  41. >Already open, and as far as anybody can tell MS is still doubling down on their original dubious bet. If you want to find one, check here: http://www.microsoftstore.com/locations

    What a relief to discover that the closest one is two states west of me. I don’t think I want that much concentrated suck any closer than 600 miles away, thank you very much.

  42. >Right, but does this desire include a stipulation that the robust open solution must have a majority share?

    Yes, because in a market with strong network effects it’s win or die.

  43. My favorite thing about that link: http://www.microsoftstore.com/locations is the way (using firefox) the page first takes just a little too long for any useful info to show up and then when you try to scroll, part of the footer is obviously being placed using some kind of horrible hack to stay on top that causes *massive flickering* and/or a noticeable delay on refresh. It’s so perfectly emblematic of the whole endeavor – the difference between making something look approximately right according to a spec and making something that actually works well and produces a pleasing user experience.

    That page and the stores themselves bring to mind Feynman’s “cargo cult” talk – the runways and towers have the right shape, but the planes don’t land.

  44. Yes, because in a market with strong network effects it’s win or die.

    I’m still not convinced APple won;t do just fine at 10%, though.

  45. Yes, because in a market with strong network effects it’s win or die.

    What is the definition of winning or dying? Although never reaching mass-commercial market popularity, Linux (and Apple for that matter) never died in the PC market. Surely losing doesn’t mean extinction, or perhaps extinction is not the “death” you mean.

    For entities who really died in every sense (product share, business, software distribution), I would consider …Amiga…Atari…Commodore…and several Windows manufacturers.

  46. Eric, U R such a n00b. Just recently, you predicted that Windows phone OS was going to rock the world, and now you come out with this? What a flip flopper! Just shows you can’t make good predictions about nothing.

    Oh, and you are wrong about RIM too. You say their app store has to catch up. That is because you don’t know that RIM doesn’t have apps, they have Super Apps.

    Keep preaching the gospel brother.

  47. @esr and @Jeff Read:

    None of that is necessary. Outlook integration in Android 2.1 and later simply uses Outlook Web Access. Everything you can do in OWA you can do on Android.

  48. >That is because you don’t know that RIM doesn’t have apps, they have Super Apps.

    Don’t you just love buzzword bingo?

  49. >What is the definition of winning or dying?

    OK. The more exact version is that in a market with strong network effects market share is super-unstable. Winners tend to gain and losers to lose, at accelerating rates. The tendency is to end up with a whale (a winner that took all) and several minnows in niche markets. The condition of survival for the minnows is that it has to cost more for the whale to enter their niche than the whale would make back in profits.

    The reason I say “win or die” is twofold. First, actually planning to hold a niche market seldom works. Generally the successful niche players got backed into it by accident; the paradigm case is Apple backing into desktop publishing after its initial failure as a consumer appliance. Same story with the Amiga and video editing. Second, it’s really tough to predict what niches are defensible in advance, because you don’t know what the whale’s cost model will be.

    Essentially, landing in a niche is getting lucky. The way to bet is that if you aren’t the whale, the whale will crush you.

  50. As for what Microsoft might sell in their bespoke stores, there’s the Zune, their mice, keybaords, and joysticks. Not much else I can think of really.

    Oh, I know! Maybe they’ll sell those licenses for Microsoft IP in SuSE Linux! I can put it right next to my $799 SCO license! ;)

  51. Morgan Greywolf Says:
    > As for what Microsoft might sell in their bespoke stores, there’s the Zune, their mice, keybaords, and joysticks. Not much else I can think of really.

    I would have thought the XBOX likely the big draw – if there could be one

  52. Microsoft has exactly two products that make money and one of them is factory-installed on your PC. Unless the stores are somehow able to sell nothing but Office, all day, every day, they’ll be a net drain on profits.

    The Xbox is a fairly big money-maker, but that might have something to do with having to pay for the “privilege” of getting online or that they take a $10 tax on every game sale.

    Something I thought of last night, just for thought, Microsoft might actually stay stable if they dumped Windows, invested into Wine, and ported Office and Internet Explorer to Linux natively. Stay in the Office/IE businesses and the Xbox business, they’d probably do not too bad; they’d be smaller, but stable.

  53. First, actually planning to hold a niche market seldom works. Generally the successful niche players got backed into it by accident;

    There are certainly cases where it does, such as GRiD’s successful lines of rugged battlefield computers. I’m pretty sure this was a planned niche.

  54. I would have thought the XBOX likely the big draw – if there could be one

    The XBox has a plenty big distribution network already. Actually, so do Microsoft’s input devices. Such a move actually would make no sense.

    Then again, this is Steve “Developers! Developers! Developers!” *throws chair* Ballmer we’re talking about here.

  55. Don’t count webOS quite that out. HP’s on the trailing edge of a product cycle, with the Pre2 essentially moribund in terms of sales after the new handsets were announced but the new products aren’t shipping yet. This summer is make or break for HP (Palm is no more, HP killed the Palm brand off).

    HP’s plan seems to be to deliver a good tablet and use it to drive phone sales via interaction between the two. It may even work (webOS is a damned nice OS with IMHO the best user experience of the lot).

  56. Android phone ZTE Blade sells for 1500 SEK (about $200) with no subscription. It is not the cheapest Android phone on the Swedish market (but the cheapest one ($150) is useless).
    Currently it is sold out nationwide, next shipment due in 2 weeks. Androids still have a huge market gap to close. iPhones count for 60% of all browser usage on cellphones in Sweden.
    I expect Apple to be a niche player around here for many years to come.

  57. # esr Says:
    > Don’t you just love buzzword bingo?

    Naw, it is for real. Haven’t you heard about the latest release? It is this really cool new game called “Really Furious Albatrosses”.

  58. > Are you, like, for real? This isn’t some belated AFJ? Branded Microsoft stores?

    As you have already been informed…no joke. I’m glad there are none near me but when I’m in the southwest next I may have to give the one in Scottsdale the old “rolling tour through the ghetto” treatment. Don’t stop moving and, for God’s sake, don’t look anyone in the eye! If one of “them” approaches you (in the immortal words of Clark Griswold)…”ROLL ‘EM UP!!”

  59. Clippy tietacks

    The sad thing is… if i ever actually wore a tie i’d get one of these, just to watch business people cringe in pained reminder.

  60. * Every time you touch something, a security guards asks you if you really want to be doing that.

    I’m flashing back to the mac vs pc ads about vista as we speak.

  61. And when it gets here? The history of previous attempts by minority OS players to swipe share by emulation is discouraging (OS/2 is the most notorious example but not the only one). If the Android emulation sucks, RIM loses. If it’s good RIM also loses, because there will never be any native QNX apps written and the transition cost out of RIM will be too low to hold customers.

    I can see how this move would look optimal however. Regardless of whether they do this or not, the chances of native QNX apps is rapidly approaching zero anyway. I’m sure RIM can read that writing on the wall as well as anyone else. If total unconditional surrender (i.e. becoming an android shop) is unpalatable then at least this partial surrender is more plausible than lapsing into oblivion without doing anything.

    And i don’t think unconditional surrender would work in their favour. Their phone design isn’t good enough to distinguish them from other android shops (not in a positive way anyway).

  62. Eric seems to have discounted AT&T buying T-Mobile. T-Mobile is full of people who couldn’t get an iPhone and settled for Android. Moreover, AT&T hasn’t been exactly friendly to Android.

    Also, many Verizon customers who own Droid series phones are likely locked in to contracts that need to expire prior to potential upgrades to iPhone.

    Apple seems to be warming up to a major consumer push, with non-phone iOS devices being marketed at Target, Toys-R-Us, etc. in addition to phone and non-phone iOS devices being pushed through walmart, best buy, etc.

    Given the huge distribution channel play that is occuring, and the obvious synergies between iPad sales and cross-over iPhone sales, the thinking man won’t count Apple out.

    But then, if Eric were to concede these points, Android wouldn’t be “#winning”.

    The game here is only 1/2 (or less) about technology. Go to market strategies have huge impacts on the consumer mindset. Open Source (if, indeed Android is ‘open’ at all) doesn’t matter a whit once you look beyond the technology horizon.

  63. The jury is also out on the results of a scenario where Amazon teams up with Microsoft (search and maps) and Facebook (messaging, contacts) to fork Android. Amazon would handle in-app payments, app store and media purchases/rentals.

  64. Eric seems to have discounted AT&T buying T-Mobile. T-Mobile is full of people who couldn’t get an iPhone and settled for Android. Moreover, AT&T hasn’t been exactly friendly to Android.

    The overwhelming ho-hum response to the Verizon iPhone has put the lie to that meme. If the US Android market was just biding their time until someone other than AT&T got the iPhone, Apple’s numbers would have been better than station keeping levels.

    The game here is only 1/2 (or less) about technology. Go to market strategies have huge impacts on the consumer mindset. Open Source (if, indeed Android is ‘open’ at all) doesn’t matter a whit once you look beyond the technology horizon.

    Absolutely agree, which is why Android isn’t sold on “we’re open source”. Hell my research says that unless you’re a small ass telecoms shop it’s not even sold on Android. With the exception of places like T-Mobile in the states and Vodaphone in australia (basically also rans in the telecoms space), Motorola and Samsung are much more important names than Android once you look beyond the technology horizon.

  65. HTC, Samsung, (etc.) would need to build a consumer-facing brand. This is a very expensive exercise.
    You can see both attemptin the build, but I don’t see I happening.

    However, Amazon, Facebook and Miceosoft all have huge customer-visible brands. Elop’s stated reason for taking Nokia in the direction of WP7 was that he wouldn’t be able to customize. I submit that a Nokia branded phone with a forked version of android (perhaps with the WP kernel, rather than linux), would allow such customization. Microsoft could offer the .Net framework on top of this (with the CLR), and have most of what they want/need from a Windows Phone 9 release, complete with their own app store.

    Apple has already shown that there is little value in the old model of attempting to license thr platform for cash. Microsoft *could* charge phone OEMs for the runtimes and frameworks if they can motivate the millions of .net developers to write for such a platform.

    Mono could be a dark horse here.

  66. > The overwhelming ho-hum response to the Verizon iPhone has put the lie to that meme. If the US Android market was just biding their time until someone other than AT&T got the iPhone, Apple’s numbers would have been better than station keeping levels.

    Not if a large percentage already have droids, and are waiting for contract expiration.

    Also, it’s not like Apple is standing still. In order to simply “stay on station”, as you assert, they need huge sales on a nearly year-old product.

    Also, Android must, of necessity, start to slow its rate of growth. It’s going to be much more difficult to get from 35% to 55% than it was to get from 15% to 35%. This is especially true now that the backlash against Google has started.

  67. A datapoint:

    Loura so far has replaced 6,000 desktop and tower computers with lightweight HP laptops, and got rid of company-issued Blackberries while letting workers choose between an iPhone or Android or Window Phone 7-powered smartphone. The company has issued 2,000 smartphones, 92% of which are iPhones. About 6% of the smartphones chosen were Android-based while 2% were Windows Phone 7 devices.

  68. Motorola and Samsung are much more important names than Android once you look beyond the technology horizon.

    I’d argue no. If anything, HTC is the golden child. Isn’t Motorola still struggling to actually turn a profit? It’s very odd that they’ve actually done pretty good sales of Android phones and yet they can’t seem to make nearly as much money as …well, HTC.

    As for Samsung, their quarter didn’t look so hot.

    Android is big and unstoppable with clever market dynamics of its own. The individual manufacturers are on their own meaningless, and that’s probably a point in Android’s *favor*. It’s a delicate dance with OEMs though.

  69. The overwhelming ho-hum response to the Verizon iPhone has put the lie to that meme. If the US Android market was just biding their time until someone other than AT&T got the iPhone, Apple’s numbers would have been better than station keeping levels.

    Sales have been reportedly tepid, but there are still no known figures yet, and still reasonable arguments that the Verizon iPhone will be a useful pillar for Apple in the next year. To assume otherwise seems fallacious; “Apple has snatched nearly 20% of the US smartphone market with merely one carrier. Two carriers this year? Psh, not gonna change a thing.”

    iPhone Saturation Theory is a solid argument, to be sure. Maybe all iPhone lovers got one already.

    But I’m also certain that Carrier Contracts are Impediments is at least as strong an argument thus far. Apple already exhausted all of the iPhone demand in the nation? We’ll see.

  70. @PapayaSF:

    A year ago, AT&T was openly hostile to Android. If, for example, Clorox mandated AT&T and mandated a particular Android model, that could explain everything in that article.

    Without more context, the article is not even as good as most anecdotes.

  71. I’d argue no. If anything, HTC is the golden child. Isn’t Motorola still struggling to actually turn a profit? It’s very odd that they’ve actually done pretty good sales of Android phones and yet they can’t seem to make nearly as much money as …well, HTC.

    My point isn’t the relative sales strength of Motorola, Samsung or HTC.

    What i’m saying is that if you look at the advertising of the major carriers (Verizon and AT&T in the states, Telstra and Optus in aus) the end manufacturer (Motorola/Samsung/LG/HTC etc…) have larger billing than “it’s an android phone”(when android appears at all). Sure you can find android in there but, just like only techies buy computers based on AMD vs Intel or AMD vs Nvidia, the mob who made the thing is more important than the components it contains.

    From what i’ve seen, this breaks down slightly with the minor players (T-Mobile in the states, Vodaphone in aus) where Android starts getting some prominence in its own right.

  72. >I’d argue no. If anything, HTC is the golden child.

    I strongly agree with this. HTC was on nobody’s radar before the G-1. They’ve since shipped a succession of interesting, well-designed and well-constructed products including one that I think will come to be considered a classic of the smartphone genre (the Nexus One). They’ve established themselves as a major force in a hotly competitive market, and positioned themselves effectively as the most Android-friendly hardware vendor.

    The way HTC has simultaneously exploited and enabled Android’s success could be a textbook example of how to do product planning and technology marketing right. They’ve certainly earned my respect. There are two HTC phones within reach on my desk and a third one in my wife’s desk drawer.

  73. Something I don’t quite get is how come if TMO are getting bought out by AT&T, how come they are still putting on these commercials talking about how AT&T are charging too muc?. You know, the one with the girl in the weird colored cerise pink dress.

    Bumbling corporate incompetence perhaps.

  74. @twilightomni:

    This claims that a comScore spokesman said that Verizon sold “well over 1M iphones during its first few weeks of availability.

    That’s apparently from the source data used for the comscore report we’ve been discussing.

    Interestingly, the 3 month period (where Apple sold 2.1 or 2.2 M iPhones) also covers Christmas (and a period where AT&T’s been hawking refurbished iPhones like mad for $0 or $50), so if Verizon sold “well over 1M”, AT&T’s Christmas iPhone sales must have been dismal, and Jan and Feb sales non-existent.

    That, in and of itself, certainly indicates that at least AT&T’s customer base is iPhone-saturated (as do some analyses I posted a couple of months back based on AT&T’s quarterly statement). Given that anybody who really truly had to have an iPhone could have switched some time over the last couple of years, I think we can extrapolate AT&T’s saturation to the entire market, with the exception of the fly-over country they don’t serve, and a few disgruntled AT&T haters.

    Obviously, some Verizon customers who want the iPhone are on contract, but I’m not sure it’s that many. Not everybody gets a new phone at every single opportunity.

    Also, the total number of sold units could be > 2.2 million, if, for example people switching from AT&T just stuffed their old iPhones in a drawer.

  75. Not on topic – just wanted to bounce an idea off you:

    I was reading a book the other day – Edison, His Life and Inventions, Frank Lewis Dyer (I think it’s free or relatively inexpensive on Kindle). One very fascinating early chapter dealt with the rise of the early telegraph networks and Edison’s employment as an operator.

    Something about the whole culture among the telegraph electricians and operators struck me as a rather close parallel to the hacker culture you describe in the New Hacker’s Dictionary.

  76. OT: The C64 is back!

    All modern hardware, in the well-loved “The keyboard is the computer” chassis, running Ubuntu with a C64 OS emulator on top. I cut my programming teeth on this thing…ah, good times.

  77. Also, it’s not like Apple is standing still. In order to simply “stay on station”, as you assert, they need huge sales on a nearly year-old product.

    Sure, but the 0.2 to 7% split is damning.

    Any split of androids share that iPhone VZN took from Android must be counterbalanced by an amount of dumbphone to smartphone conversions that iPhone didn’t get.

    Here’s another way of looking at it. Roughly 8 Million phone users converted to smartphones in dec-Feb(up 13% to 69.5M according to comscore). 2.2 Million phones means assuming that all of those sales are conversions, then Android has effectively taken slightly less than 3/4 of the conversions (assuming a 2 horse race, certainly more than half).

    With more than Apple’s total sales amount for the period newly entering the market every month, I think it’s fair to say that Apple just maintaining it’s market share right now isn’t a victory.

  78. All modern hardware, in the well-loved “The keyboard is the computer” chassis, running Ubuntu with a C64 OS emulator on top. I cut my programming teeth on this thing…ah, good times.

    It’s a pity it probably won’t have the dedicated chips for sound, and drive access. Thats always been what’s slowed down C-64 emulation. The Atom D525 is however dual core so if they program it smart that should give the same effect.

  79. @JonB:

    > assuming that all of those sales are conversions,

    You don’t need to assume anything, to calculate what you’re trying to, I think. The data is all there in the report (which, btw, doesn’t measure sales, but measures current installed base) — just add math.

    Installed base of Apple iPhones grew by 2.1 to 2.2 million units.

    Installed base of Android phones grew by just shy of 7 million (3.25 times as many as Apple)

    Why doesn’t this add up to 8 million? Because RIM, Palm, and Microsoft managed to lose over a million subscribers between them.

  80. @Life as we know it:

    Not if a large percentage already have droids, and are waiting for contract expiration.

    Approximately 75% of Verizon’s customers are still on dumbphones, about the industry average. Dumbphone users are converting like wildfire, and most of them are converting to Android.

    Also, it’s not like Apple is standing still. In order to simply “stay on station”, as you assert, they need huge sales on a nearly year-old product.

    And the need to do this over and over again will be their downfall.

    Also, Android must, of necessity, start to slow its rate of growth. It’s going to be much more difficult to get from 35% to 55% than it was to get from 15% to 35%.

    Sure, it will be more difficult, but that time will still go by in a blink of an eye. In slightly over 5 quarters (from Oct 09 to Feb 11) Android grew from 3.5% to 33%. If last quarter’s pattern merely holds steady for the next 8 quarters — 64 million dumbphone conversions out of the 164M dumbphone users (almost 40%) to smartphones, and with RIM/MS/Palm bleeding another 8 million, and with Android continuing to acquire 3.25 times as many new customers as Apple, then at the end of those 8 quarters, there will be 141.5 million smartphone users, and google’s share of those will be your magical 55%.

    But I expect Android production to ramp for several quarters (and for the US market to soak up a lot of that production, until the prices get a bit farther down the curve), and all those cheap, capable smartphones will be very seductive to dumb phone and Blackberry users alike. This could happen well before two years is out.

    Anything could happen, but unless somebody else pulls a rabbit out of a hat, Android’s going to be at 55% in under two years, maybe even inside 5 quarters.

    This is especially true now that the backlash against Google has started.

    You mean the astroturf backlash? Are you part of that? In any case, that won’t work well on this blog.

  81. I am one of the switchers from dumb phone (aka “feature” [ha!] phone) to smart phone. I hadn’t planned on it happening just now, but as Jay is upgrading his iPhone it’s reasonable to upgrade the second line phone, mine, at the same time. He first looked at simple phones since I like the simple phone I have. It’s a clock with alarms that can also handle telephony. While it has good to great battery life, it’s off while I am at work and charging most of the time when I am at home or driving any distance. Thus switching to a phone with shorter battery life is really no big deal for me. I had originally planned to wait for the expect price drop due to the single-chip solution and buy an Android device outright, no contract tied to the device. My plan was, then, to have a device that was clock, phone, and wifi-enabled device.

    Why Andriod? From the above, it should be obvious that I was waiting for the price drop to make it affordable to me. Also, I have used the iPhone, admittedly only a very little, and found it annoyed me. Things I wanted to change, I found out were things one cannot change. This is the same reason I do not use a Mac laptop despite one being available: While it’s great if you like Apple’s choices, it’s Hell if you don’t. An Android device should not have that issue. “Should not” is not the same as “does not” of course, but I don’t expect whatever company to be jerks about me wanting to my device my way with Android. I expect that from, well, almost everyone else.

  82. it’s great if you like Apple’s choices, it’s Hell if you don’t. An Android device should not have that issue.

    Android by Google actually involves some design choices and tradeoffs of its own. There is no real “have it your way” platform unless you’re a platform developer yourself, although Android gives you more leeway with widgets and hacks.

    But I’d argue any collection of non-system-critical hacks are minimal changes in functionality, and single user-developers have no scale or power to pull off deep change/integration like HTC’s Sense, which I here is pretty well done. No matter how many times I patch my WebOS phone, it’s still a WebOS phone with the WebOS interface. I’m cool with that.

    No manufacturer this side of the Nexus is going to give you a device “your way”. Even the Nexus is Google’s design philosophy, pure and simple, unlocked to use with *other developer’s* ROMs.

    Themes, patches, widgets, wallpaper, and apps are the customization for the rest of us, but it’s still a conceptual sandbox. No one else’s interface is the thought-scape of our lucid dreams.

  83. I think this could all easily be predicted using “blog statistics”: Plot the volume of the “iPhone/Apple will win!” comments on this blog over time. It should be clear that even the fanboyz are losing faith.

    More unreliable statistics. Google trends shows a leveling off/decline of iPhone searches from the summer of 2010. The iPad is still growing, but rather bumpy. Android searches show an unbroken exponential growth. Android is overtaking iPhone in the news stories.
    http://www.google.com/trends?q=iphone%2CiPad%2Candroid&ctab=0&geo=all&date=all&sort=0

    All in all, it seems Apple’s “mindshare” peaked somewhere last summer. So did their market share it seems.

  84. Android by Google actually involves some design choices and tradeoffs of its own. There is no real “have it your way” platform unless you’re a platform developer yourself, although Android gives you more leeway with widgets and hacks.

    How about not removing any app that duplicates functionality in the phone? Passive notification?

    But that’s just thinking software. Think hardware as well.

    On Apple i can have the common smartphone style. Big touch screen, one button on the bottom.

    I can’t have a pull out keyboard.
    I can’t have a clamshell.
    I can’t have a RIM/crackberry style half screen/half keyboard affair (i’m not sure who’d even want one but my point is that it’s not even an option).
    I can’t have a really tiny phone.
    I can’t have a really oversized phone (for accessibility support).

    All of these options are a possible phone configuration on Android. Pick what you want to use.

  85. Thinking about how niche players might shake out in the smartphone market, I suspect niches will be a bit more defensible with an open winner like Android. My model is the web browser market. IE certainly won, but browser niches didn’t die and they weren’t locked out, either. And that’s how we ended up getting Firefox and Safari and Chrome and so on over the years (not to mention keeping Opera). I think the openness of the web is why other browsers couldn’t be locked out. Existing investments and backwards compatibility is how winners crush the losers, but if the backwards compatibility is to an open ecosystem, that doesn’t quite go through.

  86. My model is the web browser market. IE certainly won, but browser niches didn’t die and they weren’t locked out, either.

    Not necessarily a good example.

    IE won, but only on Windows. This was of course by design (to try to bring people to windows) but had a side effect of making “everywhere thats not windows” a viable niche (In terms of erics earlier analogy, the whale had an artificial infinite cost to entering that niche).

  87. >Anything could happen, but unless somebody else pulls a rabbit out of a hat, Android’s going to be at 55% in under two years, maybe even inside 5 quarters.

    According to comScore, Android was at 33% at the end of February, having gained 7% share in the previous three months. On a straight linear gain of 7%, Android would hit 54% on the dot at the end of November – three quarters. Now look at this chart, which shows linear Android share growth from 4Q09 to the latest reporting period.

    I must admit this chart surprises me a little. I was expecting geometric rather than linear growth because that’s the pattern you normally see in meme propagation – memes spread faster when they have more carriers. But that’s OK; if the graph was smoothed to linearity it will underpredict growth rather than overpredict it. So what that graph actually suggests is that Google will hit 55% in mid-November or sooner.

    Now, what could cause this prediction to fail? Obviously the growth curve could go logistic at any time, and it’s going to have to eventually since it can’t break 100%. In order to predict the logistic transition in a situation like this, you look at, duh, limiting factors. In this case, I think the way to model it is epidemiologically – to look at the extent to which different segments of the market have resistance to Android infection.

    Here’s how I think that’s playing out. Dumb-phone users – little or no resistance. Apple users – relatively high resistance, they’re brand-loyal. RIM users; low to moderate resistance, not from brand loyalty but from corporate procurement inertia. Microsoft users probably have negative resistance, at the rate they’re bailing out. So the question is, can Android get to 55% without having to infect a lot of resistant customers?

    I think the answer is clearly yes. All the Microsoft customers plus a bit more than half of RIM’s remaining share gets Google to 55%, and that’s leaving out the dumbphone conversions. Getting to 55% should be a cakewalk. In fact Apple could gain 10% market share and it would still be a cakewalk.

    Looking at the comScore numbers, I think there’s no actual reason to expect Android’s growth will go logistic before about 70%, with the tough cases being Apple’s core userbase and the holdouts in the RIM fortress. Again, I’m leaving out the dumphone conversions; since almost all of those are now going to Android, the effect is to push the expected point of logistic turnover higher. It could easily be 80%.

    So, Patrick, I think even your 5-quarter forecast is way too conservative, let alone your 8-quarter one. Remember the November mark; the conservative way to bet is that Android approaches 55% before Christmas and blows right the hell through it on holiday sales, which are an obvious peak period for dumbphone conversions.

  88. It is true that “not Windows” was a viable niche, but if IE’s win had been like Windows’ win, it shouldn’t have been. Just as Windows put pressure on other platforms because of applications and compatibility, IE should have put pressure on other browsers and, through them, on other platforms – intensifying Windows’ network effects. There were (and still are) some sites that catered to IE, but they never reached critical mass and IE-driven network effects never really kicked in. Why? My hypothesis is that because the “installed base” of the web was an open, it was much more to reach the critical mass that would put pressure on non-IE browsers. And so I wonder if the same phenomenon might repeat itself in the mobile space, making a more diverse mobile ecosystem stable.

  89. @Ravi
    “My hypothesis is that because the “installed base” of the web was an open, it was much more to reach the critical mass that would put pressure on non-IE browsers.”

    My hypothesis is that it was the fact that Apache, and with it the LAMP stack, took over web servers before IIS could get a beechhead. Apache kept the web open as it did not cater to .NET or other proprietary MS abdominations. As IE wanted to kill web services (JavaScript) they ignored the active components of the browsers.

    I we must thank Apache for keeping the web open.

  90. My take is that most purchasers of Android phones are probably quite disappointed with the experience. Whether it’s because of battery life, lousy app selection, annoying add-ons by the carrier, or clunky app design.

    The whole thing seems driven by slimy salespeople hired by the carriers who are pushing Android phones and probably lying about features and quality just as they lie about plan details, etc. Yes they’re selling a lot of (mediocre) phones to a lot of naive (or optimistic) people who trust the Google name based on their experience with search or gmail.

    I predict a huge backlash as more and more consumers realize they were hoodwinked and should have just gone with an iPhone. Take the Evo 4G for example… the phone shipped unable to even last a whole day on a full charge (with moderate use). This is unconscionable. Clearly nobody who was in a postion to do something about this test drove one of the phones for a few days before moving forward with all the hype and marketing.

    I think this will all bite Google when few people decide to upgrade to a new Android phone. The experience is so mediocre that even a few minutes playing with an iPhone, browsing the app store, or talking to the owner about battery life will cause tremendous buyers remorse.

    From last September, 65% of Android users are “very satisfied”: http://www.therealmacgenius.com/2010/10/iphone-os-or-android…. That’s less than the iPhone’s 74%.

    Before you start, I’m far from a fanboy… I got an Evo 4G and was so appalled by the battery life (clearly nobody in their right mind would ship the product knowing how poor the battery life is) that I did a spit take, sold the 4G and bought an iPhone 4.

    But even now, I’m actually rooting for Google. I’d like to see them take the overall usability and build quality a lot more seriously than they appear to be taking it. It’s completely absurd that carriers are installing things like a clock with hands which prevent the phones from being instantly upgradeable when a new version of Android is released. But even Google can’t seem to grow their own, the G2 runs stock Android but won’t get a Gingerbread update until some vague future date. Why not?

    Android gives carriers a lot of perverse incentives, most of which they appear to be following quite religiously. There is no question that the carriers are doing significant damage to Android. As long as customers are locked into contracts via phone subsidies, there’s little motivation to keep them satisfied.

  91. @esr:

    I was expecting geometric rather than linear growth because that’s the pattern you normally see in meme propagation – memes spread faster when they have more carriers.

    But the absolute unit growth has been superlinear, because the market itself is growing so quickly.

    So, Patrick, I think even your 5-quarter forecast is way too conservative, let alone your 8-quarter one.

    My real prediction was really “sometime inside 5 quarters,” but I hadn’t really given it too much thought. With the 8-quarter scenario, I just did a very simple thought experiment to knock down the strawman argument about it taking forever to reach 55%, using a static snapshot of an (obviously) very dynamic process — I merely asked the question what happens if the previous quarter, taken in isolation, merely keeps repeating itself.

    In terms of limiting factors, while there isn’t any real resistance to the idea of an Android phone among dumb phone users, there will be resistance in some quarters to paying for a data plan. The typical subsidized $50 smartphone is no big deal, but the service model will be a deal breaker for some people. And obviously, at some point, we’ll run out of dumbphone and RIM users to convert, but that’s not an issue for awhile.

    Despite Jeff Read’s protestation “WHAT competitive pressures?!” I think it’s pretty obvious that it is, in fact, competitive pressures that are causing T-Mobile to bleed so much red ink they’re anxious to get acquired, and I think that it’s also pretty obvious that there are significant competitive pressures between manufacturers within the Android ecosystem that mean they’re working very hard to drive down their cost of manufacture.

    So, I agree with you that it could easily happen by Christmas (slightly over 3 quarters from February), but I think it’s extremely likely that if this happens, it will either be because the cost delta to the carrier for Android handsets is low enough that they can speculatively give them to non-data customers for the same subsidized price as a dumbphone (in the hope they can convert the customers to data plans, or sell them data on a daily basis, for example), or because competitive pressures force the carriers themselves into reducing the add-on cost of data down into the noise, or a combination of the two.

    I will note that for people who want to primarily use a phone for data, and are in Sprint’s coverage area, Virgin Mobile is raising (lowering?) the competitive bar: $25/month for all-you-can-eat data plus 300 anytime phone minutes. You can get a Samsung Android phone for $200 for that plan.

    I’m probably a reasonably good proxy for some non-insignificant portion of current dumb phone users. I have a Virgin Mobile phone that I very rarely use, and it costs me $5/month ($15 every 90 days). At some point, I might decide that $20/month extra for a data plan is a good deal, and for my personal situation, $200 for the phone itself is no huge deal. But I can tell you that if it were $100 for the phone and $10 month for data, I’d buy one tomorrow.

  92. Re the symbiotic relationship between Android and competitive pressure to convert from dumb phones to smart phones, Sprint’s not waiting for the other carriers to ramp competitive pressures — they’re too busy competing against themselves.

    The new non-contract lock-in — taking a page from auto insurance companies, they give you a longevity discount. What an awesome way to reduce churn!

    Unlimited everything for $35 per month, after you spend $180 on the phone itself, and an extra $180 over the first 18 months of the contract while it’s ramping down to that price from a starting price of $50/month.

    Jeff Read’s mileage may vary, but it sure looks like competition to me.

  93. twilightomni:

    There will certainly be hardware, and even some software, design limitations and choices. If I want a “real” keypad I need to make that choice up front just as if I want a touchscreen. But there are some bog-simple things (or should be) that make things annoying that should not be. I don’t like white-hot backgrounds. They strain my eyes. It’s just about the first thing I change – and I don’t just mean wallpaper, but in applications as well. I can make that change in KDE, GNOME (I assume), XFCE, CDE etc. I haven’t used Win3.x in some time, but I think I recall making that change there, even. Yet in OS X… I can switch the _trim_ between blue and silver or make everything a photo-negative. And that’s it. Something really simple, that was readily available for ages.. isn’t there? Whiskey Tango Photon-torpedo. As it is a BSD underneath, I am sure there is a way to fix that, but I should not need to dig into the system for that. And that is but one symptom. While I understand the “Mac way” universality helps those who like the Mac and have used it for some time, I found it annoying when Opera suddenly behaved differently than it had on Windows and Linux – and I couldn’t do a darned thing about it. I tried it for a couple weeks and then decided it was actually less hassle to try to get Gentoo on that laptop.

    I do expect some similar silliness in Android, but not nearly to same degree.

  94. @pneubauer:

    Yet in OS X… I can switch the _trim_ between blue and silver or make everything a photo-negative. And that’s it.

    Seriously? This gets dumped into the category of “non AFJ’s that shoulda been” along with the Microsoft Stores.

    Class action ADA lawsuit against Apple by scotopic sensitivity sufferers in 3.. 2.. 1..

  95. > What a relief to discover that the closest one is two states west of me. I don’t think I want that much concentrated suck any closer than 600 miles away, thank you very much.

    I dunno, with a little mechanical aptitude you can generate electricity from a good strong suck and ditch the power company! Especially since it is such a consistent and reliable source of suck.

    Yours,
    Tom

  96. While I understand the “Mac way” universality helps those who like the Mac and have used it for some time,

    The entire idea of “thou shall not deviate from the Jobs-approved colors or pixel spacing” is just ridiculous.

    If I buy a phone or a tablet or a computer, it’s *my* device. If I want to customize its look and feel to match my work style and preferences I should be able to do that. I should *not* have to change my work style to match the device. This is, simply put, wrong thinking.

    Even MIcrosoft gets this. What is *wrong* with those guys over at Apple?

  97. >My take is that most purchasers of Android phones are probably quite disappointed with the experience.

    Now that’s just silly. You don’t get share growth like we’ve been seeing if Android buyers are telling their friends “this was disappointing”.

    I keep an eye on this sort of thing among non-hackers where I live – my gaming group, people I meet in restaurants and shops, that sort of thing. The Android users I run into (and there are a lot of them, as you’d expect from that 33% share figure) seem quite delighted in their phones. When I mention that I wrote some of the software inside it they tend to burst into full testimonial mode.

  98. >But the absolute unit growth has been superlinear, because the market itself is growing so quickly.

    That is a good point. But I’m still a bit suspicious of the chart, because for a linear track to be perfectly descriptive market growth would have to be on a perfectly regular curve; otherwise the bobbles and noise would have propagated through into the plot.

  99. Morgan Greywolf Says:
    > Even Microsoft gets this. What is *wrong* with those guys over at Apple?

    Correct. But note this “my way or the highway” idea is prevalent among Android sellers. AT&T is probably the worst (locked bootloaders, preinstalled crapware that can’t be uninstalled, no side loading of apps, only “approved” apps from the app store allowed, confiscatory fees for included features like tethering, etc.).

    I’m starting to wonder (pragmatically, and for the average user) just how much more open Android (as delivered by the likes of AT&T/Motorola, etc.) really is.

    As much as I despise Job’s modus operandi, he appears to be rather the norm among the executive class.

  100. @JonB: “Any split of androids share that iPhone VZN took from Android must be counterbalanced by an amount of dumbphone to smartphone conversions that iPhone didn’t get.”

    Exactly. And people who are still running a dumbphone in 2011 (including moi) are likely very price-sensitive, or they would have switched already. iPhone is not likely to sell to many price-sensitive consumers.

  101. If I buy a phone or a tablet or a computer, it’s *my* device. If I want to customize its look and feel to match my work style and preferences I should be able to do that. I should *not* have to change my work style to match the device. This is, simply put, wrong thinking.

    A lot of people don’t like freedom. More choices leads to more complexity and more cognitive burden for the end user. These people would rather have certain decisions made for them — like UI layout and appearance — so they can get on with whatever else it is they’re doing. Apple has been selling to these people successfully for 27 years now.

    And it’s not really your device: by running the installed software you voluntarily agreed to a legally-binding contract not to modify or customize it in certain ways, in exchange for benefits the software grants you (like exclusive content or applications). If you don’t like it, sucks to be you; go buy another device which is more permissive of customization, or install another OS on the thing (Macs still let you do this).

    Depending on the device, you may be in criminal violation of the DMCA as well if you attempt to customize it.

  102. > A lot of people don’t like freedom.

    That’s what default settings are for.

  103. A lot of people don’t like freedom. More choices leads to more complexity and more cognitive burden for the end user.

    Good UI design dictates that A) the default settings be reasonable for most end users
    and B) the customization options are distinctly separated from the common settings that most users will be expected to change.

    This ain’t rocket science.

  104. Getting Android to 55% of market share is near impossible.

    First, Google Android is facing a plateau of innovation…
    both Gingerbread and Honeycomb was a bomb… so much hype for both but nothing happen.

    2.3 Gingerbread should just be call 2.3 Froyo. and Honeycomb should just be call gingerbread BETA.

    Secondly Google is having various fragmentation issue even among the approve Google android OS. It is costing Google huge money in development and time. As Android goes bigger it is getting worst not only for developer but for Google too.

    Third, Google isn’t making any significant money off Android. Google is making more money from Apple Ios than Android. No one is making any money in apps via payment or adds in Android. Even free download numbers are weak. Advertiser are also having second thought on quality of their add being serve.

    Fourth, Piracy issue in Android effect both Apps and Content developer/makers. The Music and Studio publisher maybe wary of apple’s control but they absolutely hate Google. Even Apps are easy to pirate and the later can insert your own add or malware.

    Fifth, Google is now in a crucial stage on whether to make Android still open or to close it.

    From Honeycomb Os, we can see the tablet OS version of being permanently close. The desktopy nature of Honeycomb plus Google making it virtually all it’s money from desktop, means that no one else can hijack this tablet OS. That is the real reason behind no code.

    For the smartphone Os version of android whether it will remain open or close will probably get some real clue at the Google IO conf. Google is now showing sign of closing this too.

    Closing means control which is usually good. Open means choices which is usually good too.

    Sixth, Google’s real rivals is not Apple in fact it is still one of their better partner. Google’s real enemy are Microsoft, Yahoo , Facebook,
    The Chinese, Amazon, Skyhook and other services /Ad provider. Anyday these guy will/have hijack Android Os and make it their own.

    Seventh, As Google Android becomes bigger and even bigger than Windows desktop then Microsoft and even Apple can Nuke Google out. Remember who owns the desktop and who makes their money on the desktop.

    Lastly Android Os doesn’t matter becos the Os itself doesn’t matter. The smaller and simpler the device the less does the Os matter. Android is really a Symbian replacement which can anytime be replace.

    What really matter is the Os does not sucks and then good software, hardware and services can be built on top of it. Most people don’t even know about Android OS but they know the Google software/services.

    After the iphone was out, Android fill the void needed by the world manufacturer/carrier for a modern OS with touch/UI and good platform language. Google took shortcut and stole/borrow the Multitouch from Apple and Java from sun/Oracle thus beating winphone 7 and Meego to the market.

    Samsung, Motorola and HTC found out that it was them and the carriers which was selling the smartphone not Google. Their part is much bigger hence the no need to upgrade OS attitude until their skin is ready. Why so?

    Nobody cares for Android except for a noisy few. It’s the Quality of the services and software on top wrap with the hardware quality with the branding and distribution network that matter. And off the price and/or plan you pay for it.

    What Apple knew and later phone manufacturer like Samsung, Nokia, Rim, HP/Palm, HTC found out was that integration…..integration….integration is the key and the future.
    Nobody needs an opensources engine for their car.

    What you can’t integrate yourself you find good partner to help you. and if you find no good partner or they are too expensive than you leverage the opensource community. They are after all the public library!

    So will Android Os reach 55% market share in two years time? I doubt it… Apple will still be there and we will see a fight from major player Like RIM/Qnx, HP-Palm/WebOS, Nokia/Custom-Winphone7 and even from Samsung/BADA , the Chinese TapaOs and Other OS.

    but…..

    What is more important is will Google’s Android smartphone OS remain open in 2 years time????

    Just remember, to ready up to fork Gingerbread now……………

  105. @Jeff:

    And it’s not really your device: by running the installed software you voluntarily agreed to a legally-binding contract not to modify or customize it in certain ways, in exchange for benefits the software grants you (like exclusive content or applications).

    No, it is my device. I purchase from a common retailer (e.g. a Walmart, Best Buy, or Amazon, never direct from the manufacturer). Therefore, whatever agreement I am presented with inside the box (a) must respect my purchase fully as a sale, as the transaction has already been completed (and any change would be ex post facto) and (b) must respect first sale and fair use rights per local [U.S.] copyright law, as my purchase was not with the device manufacturer and they are therefore a “third party” to the transaction.

    Now: IANAL, this is not legally tested, insert caveat(s) of choice here: I know the above is mere fluff & dreamscape. However, the logic above is plain enough that I question anyone who thinks they can say “it’s not your device”.

    Depending on the device, you may be in criminal violation of the DMCA as well if you attempt to customize it.

    Ignoring all of the above, I still cannot think of a device customization that can’t described with entry #2 or #3 of the last Library of Congress ruling on anti-circumvention. If you can, please enlighten me.

  106. Now: IANAL, this is not legally tested, insert caveat(s) of choice here: I know the above is mere fluff & dreamscape. However, the logic above is plain enough that I question anyone who thinks they can say “it’s not your device”.

    Neither is the Jeff Read/Apple view of the world. I’ll posit, though I am not a an attorney, that first sale clearly applies to the purchase of a device. You can’t sell me a device and then say “modifying this device violates my copyright.” Bullshit. The DMCA only applies to circumventing a copy protection (DRM) device, it does not apply to any other thing. Period. Those who disagree with me can read the letter of the law and statement of intent from the LoC you mention.

    Apple and others would like to make my rights as a consumer disappear. But they don’t disappear with a shrinkwrap license agreement. If I legally buy a device, and no matter what sort of copyrighted material that appears on that device, the device is legally mine. I bought, I paid for it, I own it. A is A.

  107. Ignoring all of the above, I still cannot think of a device customization that can’t described with entry #2 or #3 of the last Library of Congress ruling on anti-circumvention. If you can, please enlighten me.

    Game console firmware modifications. The people who do these make the same arguments that Greywolf does: “I bought it, it’s mone”; “I use it for homebrew”, etc. Doesn’t matter. They are still criminals.

    IANAL either but I’m pretty sure that the enforceability of software EULAs has been tested in court, with positive results, in the 2009 Vernor v. Autodesk case. So until Congress passes a law stating otherwise, it’s prudent to treat EULAs as legally binding contracts.

  108. @Alex K:

    However, the logic above is plain enough that I question anyone who thinks they can say “it’s not your
    device”.

    You might want to check out the cases that tracfone has won (obviously, they don’t talk about the cases they lost, because that’s not the kind of publicity they want on this issue).

    I think there are some serious miscarriages of justice there, starting with the fact that these (mostly immigrants) probably don’t have adequate representation. Some of the legal “reasoning” accepted by the judges in these cases leaves me breathless. Nonetheless, there are a few people in prison who learned the hard way that it’s not really their device just because they bought it at WalMart, and that the evil tracfone empire has shown itself to be eminently capable at using the laws, judges, law enforcement officers, and jailers of the US Federal government as a ruthless tool to subjugate any with the temerity to think that if they give WalMart some money and walk away with a physical object, that object is theirs to do with as they please.

    The US government should definitely not be in the business of defending broken razor/razorblade business strategies against the expected entrepreneurial arbitrageurs, and it is precisely this sort of action that leads me to wonder if esr’s vision of anarchy could somehow be made workable — obviously, if there’s no congress, there’s no way to buy it…

  109. Morgan Greywolf Says:
    > first sale clearly applies to the purchase of a device.

    For sure you can do whatever the heck you want to your device. I hear iPhones make great frisbees.

    Nonetheless if you want to connect it to a network and set of servers that definitely don’t belong to you you are going to have to abide by their rules, as set out in any ongoing network access agreements they make you sign. If they want to impose certain constraints on what you can do to your device and still hook up to their stuff, then that is their business.

    I have occasionally thought what it would be like to travel back in time with my nice Galaxy S. I would meet with all the locals, and show them this black block that looks like obsidian with strange runes on the back. It glows in a strange way.

    Then I say, “Hey look I can talk to people far away.” But then I realize that I didn’t bring any cell towers back with me. So perhaps I can’t talk to people far away.

    Shoot. Never mind. I cast my fingers over the black obsidian, and as if by magic pictures, moving, and singing appear, as if I have captured pixies in my black rock. I speak the magic incantation “Run Angry Birds.” And a magical world appears trapped inside my black rock. Everyone is really impressed and assume I must be from the heavens.

    However, next day I try to recreate the trick, and it turns the pictures don’t appear anymore. In fact, it turns out that my black block of obsidian is just that, a rock.

    I try to impress them with my frisbee throwing skills, however, they are not so impressed anymore.

  110. @kk man
    Point 1-8

    It is funny, but you succeeded in getting 8 out of 8 wrong.

    On the other hand, if you really assume thousands of people mis-invested a total of billions over years, because they did not see your simple truth, you are beyond help.

  111. There is no real “have it your way” platform unless you’re a platform developer yourself, although Android gives you more leeway with widgets and hacks.

    I love my Pre because webOS is exactly that because the entire UI, including the built-in apps are HTML/JavaScript. It’s too bad that because of Palm’s and Sprint’s bungling, webOS is almost certainly consigned to the Amiga bin.

  112. hey Winter!!
    just refute it.

    We are talking just the OS…
    remember Google’s Android OS with skin + Opensource Android…
    Not the manufacturer or even the CloseSource Android OS fork

    1- Innovation on Android Os part is plateauing…
    Just look at Gingerbread n HoneyComb also note at their length of time releases.

    This off course doesn’t include the manufacturer n developer side of innovation, just the OS + main google software/services.
    As Android Os Mature this is normal just like IOS.

    2- Fragmentation issue….
    Android has major a fragmentation issue… to be fair mostly everyone has fragmentation but not in the scale of Android is. Window and Linux is is not this fragmented.

    Plus we have fragmentation issue on all level, from hardware to skins level.This doesn’t include the various forks that has/will happen

    Java and Dalvik do manage to keep it’s negative impact to a minumum unless one choose to go native. But even then it is write once Test many.

    3-Monetize.
    Google makes virtual all its money on the desktop!!!! whether from search,location or Adsense. Sure mobile is the future… but the cash cow is on the desktop..anything on the web, Google needs the desktop for it.

    There is also a dirty little secret…. Googles never allowed you to share the info of how your making money with them to the public…so much for being open.

    4-Piracy…
    Just ask Netflix!

    5- To open or to close?
    HoneyComb = Close
    Gingerbread+ rest = Open
    Tablet OS = Close
    SmartPhone Os = close
    The future???
    Well just wait for this May Google I/O…
    At the meantime…
    Just remember to bring your FORK!

    6- Google’s rival. this is very important…
    As of this moment apple is till willing to work with Google as apple is still dependent on them for ..Youtube,Google Map, Services and Search.

    Even if Apple rids itself of Google, apple will still remain largely a close ecosystem with only Itunes Software reaching the masses.
    That is why they choose to release webkit to the open…instead of making Safari a bigger player behind firefox and IE.

    Amazon will make a play for Apps,Games,Music,Media and Books. If Amazon manage to curate and manage quality n be successful that means a loss in revenue for both paid apps and Add supported Apps. What good is Admob in amazon appstore?

    What’s even more funny is if Amazon reverse the Android OS code and make their Apps and Appstore as the default and official apps for this specific android OS… and Google’s Android Marketplace apps being the unknown and unauthourize way for getting apps.

    Offcourse amazon needs to partner with Maps n Location, browser n search, various Internet and social services…. Yahoo??? Bing??? Facebook??? If a complete set of software and services can be made then it is up to the manufacturer and carrier who decide to choose which services/software that pays them more.

    What is worst is the Chinese has manage to do all this successfully with their Tapa Os n other Os. It is a huge success in China that overall contribute to ALL of android…. regardless of it being Google’s android, opensource android or even CloseSource android.

    but these Chinese phone won’t reach the world… but as android grows bigger we will see splits and forks that is a certainty. This will happen even if Google’s open or closes android.

    7- the Os doesn’t matter….
    I know this isn’t everyone cup of tea… but a good Os should remain invisible…. specially for small and simple stuff.

  113. Gartner’s projection is that Android will have 49% of worldwide (not US) smartphone market by some time in 2012.

    http://www.gartner.com/it/page.jsp?id=1622614

    Unlike the comscore report (which measures installed base), Gartner is predicting annual sales.

    I think they’re nuts. For example, they think Microsoft is going to grow sales market share this year and next, and that RIM is going to lose market share but still substantially grow unit sales. RIM’s strongest markets are in Indonesia and UK and the Netherlands, markets where Android’s ramp is in its early stages, and we all know that Microsoft has a hard row to hoe.

    And, of course, the big piece of the puzzle that they’re missing is that Android vendors will drop the price so fast that there will be a worldwide deluge of dumb phone conversions. Their numbers seem to imply that, by the end of 2012, only about 25% of worldwide cellphones in use will be smart phones.

    Gartner says the right words:

    “As vendors delivering Android-based devices continue to fight for market share, price will decrease to further benefit consumers”, Ms. Cozza said. “Android’s position at the high end of the market will remain strong, but its greatest volume opportunity in the longer term will be in the mid- to low-cost smartphones, above all in emerging markets.”

    But I’m not sure they really feel it in their guts…

  114. @kk man:

    Winter’s right. I’m not going to argue every item in your huge, long, wrong laundry list, because we’re obviously not going to convince each other of anything, but I will show you one thing: back in October, google’s annualized revenue for its mobile business was already $1 billion / year. They’ve added a lot of phones since then, so that number’s only going up.

    You have to remember google’s game here. They aren’t trying to lock up the OS. They want to reduce the friction between the consumer and their search engine, and are confident enough in their search engine to make the bet that reducing friction between cell phones and the internet in general is the best way to do that.

    To a large extent, they don’t care about forks. You keep analogizing to the desktop market. Whether people blame windows or not for their issues, they keep buying windows and insist on it being on their computer. The same thing is happening in cellphones. Except for those rich/snobby enough to insist on an iphone, the network effects will draw more and more people into Android.

    To a large extent, they don’t care if Amazon opens an app store. App store revenue is incremental gravy, and they’re not stupid enough to care too much about that.

    And to a large extent, the network effects mean that the content vendors will have to work on Android. The opportunity is just too juicy to pass up for the worries about a little piracy. That’s why Netflix will be avaliable on some Android phones soon.

  115. @Jessica Boxer:

    If worrying about this potential scenario keeps you up at night, perhaps you should trade your Galaxy S for one of these.

  116. @Richard Thompson:

    Obviously, google’s already on the case.

    The article is a bit unclear, but it may actually be that google can acquire a non-litigation license from Microsoft as part of the package.

    That, of course, leaves Oracle and Apple, but maybe there are a few plum patents in that bundle that can help shoo them away.

    And yes, most patents are ugly and stupid, but the market does tend to sort it out in the main. If there’s no money, then nobody will sue. If there is money, then there is a protracted legal battle that will cost both sides (MAD deterrent) and if there is a lot of money, then there’s an arms race with the potential for some blowback.

  117. >Obviously others have already admitted that they are.

    Others mostly do not have the sort of up-close-and-personal experience with big-time IP lawsuits that I do. After a while you learn how meaningless this sort of ritualized grunting and posturing is, and you start to tune it out.

  118. @Richard Thompson:

    Almost forgot that Novell was a founding member of OIN.

    Looking at the OIN licensee list, google is a member, but I don’t see Motorola, Samsung, LG, HTC, Huawei, or ZTE.

    Wouldn’t it be absolutely fucking awesome if the handset manufacturers had to start shipping the exact unmodified stock copies of Android that google furnishes them in order to receive patent protection through google’s and OIN for the Novell patents?

    I can see the headlines now: “Apple lawsuits bring an end to Android fragmentation.”

    I’ll just leave this here: http://expletiveinserted.com/2011/04/02/ios-versus-android-os-footprint-is-not-a-proxy-for-application-footprint/

    I was going to ask if you were genuinely concerned about Android, or simply trolling, but then I noticed your earlier posts. Trolling it is. Anyway, from this article you quote: “Among Apple’s phone competitors in the top 5 OEMs (by share of mobile subscribers), only Samsung shows positive growth. And that is one third of Apple’s growth.”

    Yeah, but this idiot Greg Cox ignores the point that the graph isn’t about smartphones — it’s about phones, and unlike Samsung, Apple doesn’t have a dumb phone business that’s been cannibalized by smartphones. The analysis I performed earlier shows that Samsung probably actually shipped more smartphones in the US last quarter than Apple. The rest of that article is simply more FUD, based on yet more misunderstandings or misdirections. I particularly like “I’m just appealing to analysts: Please, lift your game.” Personally, I don’t care enough to figure out whether it’s stupidity or cupidity, in either his case or yours.

  119. @kk man
    Refute?

    Let’s see. The most innovative company in the USA hires the best developers in the world. And they cannot innovate anymore because you say so? A few months delay in a complex program is all the evidence you can find?

    And what is an “innovation plateau”? Is it impossible to improve a Java UI on ARM? Are smartphones in decline?

    And the competition will kill Android. Why? Do they make more and better phones? Do Android phones lack in features so much that HTC, Samsung etc. are unable to sell them and will go under?

    In short, your arguments do not take note of the fact that there are 6 billion humans with 4/5 billion mobile phones. But there is only 1 Apple and one RIM that deliver at most 1 model per year. A truely one-size-fits-all economy. And Goolge is the one supplier of an OS that does not compete with the hardware makers and providers.

    Which brings us to openness. You seem to have some odd ideas about how open source works in this market. FOSS is important for the phone makers and app developers. Because it means that Google does not have the power of Apple, MS, and RIM to skimm off all profits. Quite important if you plan to build a multi billion dollar plant or business.

    So, indeed, 8-out-of-8 wrong.

  120. Hey winter…hey Patrick…

    8 out 8 ???? come on guys… you could do better than this!!

    How in the world do you guys do not agree with me…
    That at this moment it is both Microsoft/Bing and Facebook/eyeball that is Google’s biggest rival and not Apple?
    Apple and Google at the moment are still partnering.

    That’s just 1 out 8, for winter……
    and just 1 out 8 for Patrick…..

    Now winter about the 6 billion people…. Let just open you American guys eyes to something a bit different. something that is always in front of you guys but you never really notice. Specially for these smart geeks here.

    When people say, look at the 6 billion people in the world….
    They fail to look at the starving 1 billion people out there.
    These are not just human resources!!!

    When they say , free market is the ultimate solution, that the market will always correct itself….
    No, it is the people who correct/regulate the market and it is the people who correct/regulate itself. Remember the bankers?
    Market is just Garbage in Garbage out!

    When they say, free trade and globalization…….
    What thay means is One World Trade System, One World trade currency, One world trade Language, One World trade Governance… finally ONE WORLD GOVERNMENT n ONE WORLD RELIGION!
    Ultimately what is yours and what is mine………

    When they say, we will bring PEACE TO THE WORLD !!!
    What they mean is disaster, mayhem and WAR!!!!
    There is just too many people in this world…. we need to kill them to just one billion people left.
    Bush : “We must increase the troops!” Obama : “To reduce the troops we must first increase the troops! ”
    War is peace!!! To achieve Peace we must wage WAR

    When they say, “Global warming!!!”
    They also say world food shortage, peak oil and energy crisis….
    It is just a new way to tax the people????
    Or are they really saying there is no such thing as human but a bunch of useless eater using up the world resources.
    These People are just bunch of COWS, as they say. who will be one day milk dry or to be slaughter later.

    When they say, Democracy..Democracy…democracy…
    What they are saying is an argument between a wolf n two sheep to decide what to have for lunch!!!
    Democracy is the choice of heads or tail(Rep or Democrated) but of the same coin. Even if you win we can kill or shame the president.
    Remember, we can also make three buildings in NewYork turn to dust before it even hit the ground just by using small impacts.

    They are really dreaming is not of Democracy but ever heard this???
    THE RETURN OF THE KING!!! With him, they will rule over all of Mankind n CowKind…
    With the help and Wisdom of the Tree and the Eye that sees all!!!!!
    And to achieve this Order,…is the need of Chaos.
    Just like the fable of a monkey with million n millions of chaoses he turns into MAN.

    But all these dream will fail for the ultimately the billion slave/human resources will revolt and betray them.

    *back to smartphone
    ————————————————————————–

    When they say, Google is open and not evil!!!!
    What they mean is what is the real future of Android????
    Sure it will still be hugely successful .

    But which kind of Android will remain successful????
    Is the open-source Android kind….
    Or the newly Google close-source Android kind….
    Or some one else close-source Android kind????

    or will it reach total world dominance like Windows…
    or the people will still have a Choice?

  121. @kk man:

    As I said, we probably won’t convince each other of anything. But your scorekeeping’s off. I addressed at least two of your points directly (monetization and piracy). I also addressed your overall thesis that Android can’t get to 55% by trying to explain that google’s game means they absolutely don’t and shouldn’t care about most of the things you see as issues. But very well, I will address your issues:

    - Plateau of innovation. I doubt it, but the next few months will certainly tell. Personally, I think google’s Android innovation will start moving up the value stack, which will redefine the capabilities necessary to have a successful third-party Android app. They will strategically do this in the app categories where developers are using arbitrage to cut into google’s core business. Or maybe they’ll just roll out a cellphone based facebook killer.

    - Fragmentation issues. Theoretically, these might slow app developers down, but they’re not slowing customers down, for the very reason that you paradoxically list as another issue, namely that the OS shouldn’t matter.

    - Monetization. I already addressed this, but to be clear. Google doesn’t need to win the phone OS war. They just need to make sure that whoever does win the OS war does so with a transparent OS that doesn’t try to act as a gatekeeper and toll collector between google’s search engine and the customers. Unlike most large companies, google managed to discern their true self-interest with laser-like focus, and that’s why Android is free. Google doesn’t need to win; they just need certain other parties to not win, and the actions they’ve taken to insure those other parties can’t win are, serendipitously, catapulting them into the lead. And your statement that “Advertiser are also having second thought on quality of their add being served.” is pure FUD.

    - Piracy. As I already discussed, network effects insure that this will be addressed. Even at “only” 33% of the US market (where at least some people actually pay money for at least some stuff), the market of Android-wielding consumers is too big and tasty to ignore. Yes, token attempts will be made to combat piracy, but when the dam starts to crumble, and some content companies realize that their competitors are making more off Android than the incremental losses to piracy by supporting Android, the dam will burst open.

    - Malware, which you put under a separate heading. Again, paradoxically, you cite as an issue that, for example, Amazon is going to start selling apps and this is a problem for google. But it’s not. Amazon will curate the apps; ignorant consumers that are at least smart enough to know that Amazon curates the apps will get them from Amazon. End of problem.

    - Open/closed. You’ve been reading way too much slanted reporting. Go back and look. Historically, every single Android source release has happened some time after devices were shipping. Google knows their own self-interest. Choking Apple, Microsoft, Nokia, and RIM is the paramount task. Enabling every garage in Taiwan to crank out cellphones without having to worry about software accounting and without having to go to google to get software patches is golden. Google needs both the large, reputable, cellphone vendors, and the small cutthroat vendors. Their strategy delivers both these vendors to them on a silver platter. Your statement “Closing means control which is usually good. Open means choices which is usually good too.” implies that you think google is getting the worst of both worlds, when, in fact, google is carefully orchestrating things to get the best of both worlds.

    - Your statement that Apple is not google’s rival is naive at best, FUD at worst. Apple, given half a chance, would be twice as evil as Microsoft. The fact that Apple currently relies on some of google’s products to deliver its experience does not change this fact. And yes, google has competition from other quarters, but they’re addressing that, too. Do you really think that google’s investment in Android means they’re not doing other things they need to? Google has $35 billion (35E9) cash on hand. Their problem is not a lack of funds to pursue their vision.

    - “The Chinese, Amazon, Skyhook and other services /Ad provider. Anyday these guy will/have hijack Android Os and make it their own.” Again, it’s mostly a don’t care. Because of political corruption, google has almost given up on China, and probably already written off the possibility of significant revenue from that country. If Amazon curates apps and takes the money, Google won’t care because they’ve created a competitive environment inside the ecosystem that ensures that competition can take Amazon down a notch if they get too greedy. In any case, to be clear, the prediction of 55% was about US market penetration.

    - “Seventh, As Google Android becomes bigger and even bigger than Windows desktop then Microsoft and even Apple can Nuke Google out. Remember who owns the desktop and who makes their money on the desktop.” That’s just silly, unless you can explain some plausible way that “nuke” could happen without consumers abandoning MS and Apple in droves and without at least EU antitrust intervention.

    - “Lastly Android Os doesn’t matter becos the Os itself doesn’t matter. The smaller and simpler the device the less does the Os matter. Android is really a Symbian replacement which can anytime be replace.”

    This is what I’ve been trying to communicate for months. It is and always has been true from the consumer perspective. From the handset manufacturer perspective, it is difficult to replace an OS. There is engineering time, negotiations with the carrier, etc., because from the carrier perspective, one more OS is one more thing they have to learn to think about for possible network issues. From Apple’s perspective, the OS is extremely important because it allows customer lock-in, but from google’s perspective the OS is not important at all. The OS is simply something that needs to be engineered to let the customer get to the web. It is this piece of google’s judo that you persistently misunderstand. They are going to do extremely well with their OS, precisely because they view that the OS shouldn’t matter, and they’re only in the OS business to fight the players who view the OS as a battleground where arbitrage for customer ad hits can be waged.

  122. How in the world do you guys do not agree with me…

    First rule of persuasion: You must be able to understand where the other guy is coming from.

    If you are honestly mystified, and you are serious about trying to convince people about your point of view (rather than just playing a flamewar game), this line of yours says you need to spend a bit more time listening and less talking for a moment. I’m not saying this because the transparent rightness of the other position will suddenly shine through and convert you, I’m saying your persuasion isn’t going to do any better until you fix that problem you expressed there.

  123. @KK man (calm down, you start to sound rather incoherent)
    “Let just open you American guys eyes to something a bit different. something that is always in front of you guys but you never really notice. Specially for these smart geeks here.”

    I am not American in any interpretation of that word. I was born in Europe and have lived there my whole life.

    @KK man
    “When people say, look at the 6 billion people in the world…. They fail to look at the starving 1 billion people out there.”

    That leaves us with 5 billion to use mobile phones. Which actually is the number of active subscriptions.

    It is true that close to 1 billion people are malnourished (http://www.worldhunger.org/articles/Learn/world%20hunger%20facts%202002.htm). There are several ways to help them. One is increasing economic growth of their region so they can get paid work or a market for their products. Better communication tools is a well know factor to improve economic performance. Hence, better mobile phones and cell networks are a way to improve their plight. Note that poor people want to call each other just as badly as rich people.

    As education is one of the pillars of economic development, improving it would be a good start. There are many initiatives to improve education in the poor parts of the world. However, there is a chronic shortages of qualified, and unqualified, teachers in the developing world (think less than a third of the numbers needed), and little means to address that shortage. So there is an urgent need to apply computer technology to improve the quality and quantity of education. There are many options to introduce ICT in education to help teachers cope with outdated curriculums, overcrowding, and a lack of teaching materials. However, all of these options require some kind of network (Internet) access.

    Cheap Android phones/tablets with global network access would solve most of these problems. That would probably be the best stimulation of education in the developing world.

    @KK man
    “These are not just human resources!!!”

    I have no clue why you write that. Where did any of us suggest we do look upon humanity in any other way than as humans?
    The rest of your comment is completely incomprehensible and I have no idea why this should be relevant to this discussion.

  124. (As if we needed it) more evidence of Apple’s anal need for total control:

    http://www.wired.com/autopia/2011/04/toyota-bows-before-the-mighy-apple/

    The message is pretty clear. If you develop apps for jailbroken iPhones, don’t expect your shiny app to ever be approved for the stock iPhone store.

    Apple can’t pull this crap against Android because google would have the antitrust people knocking at Apple’s door so fast it would make anybody’s head spin. But so far, they can still hurt consumers who were foolish enough to buy Apple junk in the first place. Any enterprising, up-and-coming lawyer who wants to make a name for himself/herself as an antitrust wunderkind could do worse than to contemplate helping Cydia take on Apple for a percentage of the settlement.

  125. @Morgan:

    The 9th circuit is famously pro-content creators, so they will rule against Vernor. This will most likely be appealed to the supremes, after an appellate loss at the 9th. The supremes don’t seem to have any heartburn about overturning the 9th circuit when it suits them (e.g. drug issues), but unfortunately, they are famously pro-big-business right now, and all about defending government intervention (trademark, copyright, etc.) to help companies carry out their stupid razor/razorblade strategies (e.g. CostCo v Omega).

    So, while the right answer is obvious, it’s not obvious that it will be obvious to the right people…

  126. @Patrick Maupin and @kk man:

    This is what I’ve been trying to communicate for months. It is and always has been true from the consumer perspective

    Absolutely 100% correct. It is not now and has never been about the OS for the consumer. All the consumer has ever cared about is applications. For a smartphone, the killer apps are the Web, e-mail, and personal information management features. Secondary to that are games and media playing. For some classses of users, these are reversed — games and media playing are the killer apps and Web, e-mail and personal information management are secondary. Apple will probably continue to own this small segment of the market unless Google improves the user experience for media playing (count on that happening, BTW). But for the vast majority of consumers it simply isn’t that way.

    And since the biggest killer apps are the Web and e-mail, there is nobody — and I mean nobody — that has more competency in that arena than Google. The Web is the source of their livelihood, and they’ve invested gazillions of dollars ensuring that they have the best infrastructure available for Web-enabled applications, in terms of network infrastructure, hardware, software and data mining abilities. No doubt about it.

    In the end, it will be the consumer that decides the smartphone wars — and, well, by and large they have spoken. Android is the current king, and that’s not to likely to change unless Google somehow misses their mark. I don’t see that happening, however.

  127. I thought kk man had been banned for incoherence, logorrhoea, and suspected mental issues.

    –”Brevity is the soul of wit.”

  128. @Jeff:

    IANAL either but I’m pretty sure that the enforceability of software EULAs has been tested in court, with positive results, in the 2009 Vernor v. Autodesk case.

    First: as stated before, the case hasn’t been appealed yet, and so we can’t say that software EULAs have been fully tested. Yes, so far they have been upheld, but if I (and the law blogs consulted) understand Vernor v. Autodesk correctly, there are already two caveats of my original post violated (CTA’s copy was a direct purchase originally, and this case deals with mere software). The tracphone cases described by Patrick Maupin could be more damning for my original line(s) of logic, once I take the time to read it.

    Second: While the same logic originally given may apply to reject all software EULAs, it is not the primary reason I would so so. US copyright law Section 117(A)(1) says that I am permitted to make copies in the provess of utilizing a legally purchased program, if it is an “essential step” of operation. Software distributed in ‘encrypted’ form, or on media from which it will not run (i.e. most Windows software on DVD, or downloaded in MSI or other installer formats) present the EULA during the installer (read as: decryption and “initial execution”) is invalid because (a) the contract is presented under duress (software is not yet “operational”) and (b) adhesion cannot be proven due to the mentioned execution rights under 117(A)(1). [Clarification: I may never have been presented with the EULA, due to using an alternative to the official installer. It is the software maker's responsibility to prove that the EULA was presented and that valid adhesion was formed.]

    Finally: I’m not saying this means I can just ignore all copyright and redistribute copies of proprietary software. I still respect the original limits of copyright, which is 99% of what most EULAs demand. I will still respect those portions (as those are already my legal limits) and only deny the ability of the software developer to curtail my other legal rights [e.g. resale, reverse engineering, etc.] with what appears to be a false contract.

  129. Regarding the EULA, Vernor v Autodesk, etc. etc. I find it interesting because all these things are purely procedural arguments. If Autodesk really does want to restrict Vernor’s ability to resell their software then, it seems to me, they have an absolute right to do so, assuming they create the appropriate legal structures. It is their software, they wrote it and can do whatever they want with it. On the flip side Vernor has the absolute right to tell them to shove their stupid restrictions where the sun don’t shine.

    I should point out that enterprise software is very frequently sold in that way. Just recently I was involved as a technical adviser in a purchase of some large mega package, and the contract very explicitly says no resale.

    The question in Vernor is not whether Autodesk can prevent the resale, it is merely a procedural question of whether they did. And this comes down to a convenience verses explicitness problem. It is convenient to buy software without having to have your lawyer read a complex sales contract. Doing so will send the cost of software, and the process of buying it through the ceiling. My opinion is that the click through EULA is not an unreasonable compromise, though it has its problems for sure. The biggest problem is overly restrictive terms that people don’t read. However, crowdsourcing is surely a great way to solve this. Let me ask, is anyone here going to be buying from Autodesk anytime soon? Didn’t someone say that with many eyes all bugs are shallow? Who was that guy?

    With Autodesk I’d be far more concerned with DCMA and software patents. In terms of licensing, I’d have thought all you open source guys wouldn’t care. But I also have no idea if there is an open source replacement for Autodesk.

    Contract law is an interesting curiosity to me. In the USA it is, in a sense, a very limited implementation of ideas of law from Anarcho capitalist systems. Before entering into the agreement you have a written statement of expectations from both parties which is largely the whole totality of the agreement, and also, almost every contract I have seem specifies the entity responsible for interpretation and enforcement (which state law applies) and what to do if the contract has problems (severability, arbitration etc.) It is not anarcho capitalism, but bears some interesting parallels.

  130. My opinion is that the click through EULA is not an unreasonable compromise, though it has its problems for sure.

    I disagree on this one. Not that I personally buy shrinkwrapped software any more, but I do buy devices that have software in them, and I think that, absent a signed agreement in advance, money changing hands ought to make first sale and all the other normal consumer protections apply to software just like they do for CDs and books. This is the what we have the UCC for, but it’s been considerably subverted in some jurisdictions for software.

    I can imagine buying a new car, taking it home, and then trying to shut it off. The on-board GPS knows it’s not at the dealer any more. It (or the system it’s communicating with via the cellphone network) might even know that it’s at my house, and not just at the grocery store on the way home. Once I turn the key or press the button to shut down, instead of turning off, the GPS/computer display lights up with a license agreement (completely separate to the sales agreement I signed at the dealership, naturally) for all the software components in the car. I can press “I accept” to whatever onerous terms are in the agreement, or I can press “I decline”, and the car will shut down and never start for me again, and a tow truck will be dispatched to come and take the car off my hands.

    The dealer must refund my purchase price per their agreement with the car manufacturer, but they deduct an inflated $300 to pay the tow driver for restocking.

    Unfortunately or fortunately, I think this nightmare of mine is considerably closer to likely reality than you having to resort to attempting to show off your frisbee skills with your Galaxy S to the natives.

    What we really need to have happen to wake Congress up is for some embedded firmware developer to realize that, despite not renewing his contract, Lexus continued shipping his engine control code, and there are now 5000 Lexus cars in the US that are unauthorized copies. Using the Costco decision, he seizes all of them…

  131. Patrick Maupin Says:
    > absent a signed agreement in advance, money changing hands ought
    > to make first sale and all the other normal consumer protections apply
    > to software just like they do for CDs and books.

    I don’t think most people are any more aware of the contents of the UCC than they are of the contents in their EULA, and, I’d suggest the latter terms are rather more readily available to them than the UCC, along with whatever variants the state puts in there. Regardless, my point was more that Autodesk really does have the right to put whatever the heck restrictions they want on purchasers, just as purchasers have the right to say no thank you.

    I think these sorts of discussions often mix these two very important and distinct things: first, the right of software producers to sell on whatever terms they want, and second the default terms implied by retail sale. Some people think Autodesk shouldn’t be able to put these terms on their software. I think they are completely wrong. The question is not if they may, but if they did, and that is a tortuous legal thing, not some fundamental principle of consumer rights. I’m not arguing that anyone here is confusing these things, to be honest, I haven’t read all the comments. I’m just saying that they are very commonly confused.

    > The dealer must refund my purchase price per their agreement with the car
    > manufacturer, but they deduct an inflated $300 to pay the tow driver for restocking.

    And no one would ever buy that car again because of the screed you post to the Internet. However, the alternative, where the government sticks its nose into every commercial transaction is very much worse. Unfortunately in life we can’t have the optimum, usually just the best of many different options with different pros and cons. The wonder of the unregulated free market is that I get to choose the option I want, and the wonder of the internet is that it gives me lots of data and access to experts to help me choose the best option.

    I love vegetarian pizza, and hate pepperoni pizza. If you love fatty meats on your pie you’d better hope that Obama doesn’t make me the national Pizza Czar.

    > What we really need to have happen to wake Congress up is for some embedded
    > firmware developer to realize that, despite not renewing his contract,

    As a software developer I’m all in favor of lots of leverage to get my bills paid, aren’t you?

  132. Comscore’s numbers were based on a moving average over a 3 month period (90 days -Dec/Jan/Feb). The Verizon iPhone was available for only 19 days out of the survey period.

    So you can scream you are right when there is a 3 month survey that starts in Feb or March and doesn’t show any market share pick up. But it’s disingenuous to do so now.

  133. > The dealer must refund my purchase price per their agreement with the car
    > manufacturer, but they deduct an inflated $300 to pay the tow driver for restocking.

    And no one would ever buy that car again because of the screed you post to the Internet.

    I must have some recourse other than the right to tell the world the deal sucked after the fact. I submit that the dealer has no right to charge me a damned thing, as they have breached the sales contract and must return all monies I paid them under that contract.

    I’m with Patrick on this one: If I buy something with pre-installed software, no additional restrictions on my rights can be asserted after I agree to a sales contract. If the software author wants to make me agree to a EULA, then he better put in his contract with the HW manufacturer a stipulation requiring a chain of contracts: The HW manufacturer sells the HW to distributors under a contract that requires that anyone who buys the HW must agree to the same contract terms. The distributors sell to retailers under the same contract. Then the EULA is part of the sales contract I agree to before paying one fscking dime of my money over.

    Under this scenario, if I agree to this contract, I am also agreeing that I will not resell the HW to anyone else without binding them to the same contract. If I do so, then I can be sued for violating the contract. But all the terms of a contract must be clear before the contract is made. As Professor Kingsfield said in The Paper Chase, without a “meeting of the minds” as to what the terms of a contract are, there cannot be a contract.

  134. @Jessica Boxer:

    I don’t think most people are any more aware of the contents of the UCC than they are of the contents in their EULA, and, I’d suggest the latter terms are rather more readily available to them than the UCC, along with whatever variants the state puts in there.

    Sure, but it doesn’t matter. Most people have a vague idea of their “rights”, which conflates actual constitutional and natural rights with laws that define things like expected contract terms for when no contract has been signed. By and large, in most arenas of life, where it matters, the average man’s conception of his “rights” is not so far from reality that the small delta will cause him significant grief.

    This is because laws like the UCC (except in the currently-somewhat-unresolved gray area of shrinkwrap licenses), simply codify the average man’s sense of normal fair play, and gives it some legal teeth.

    Now, you could argue whether the UCC goes too far, doesn’t go far enough, whatever, but you have to admit, if you went to the store and bought some cheese and took it home, you would have every expectation that you should be able to eat it without (a) somebody from the store coming to collect additional money because you gave some of it to your friend and didn’t eat it all yourself; or (b) getting violently ill because, well, it wasn’t really all cheese. You can (and seem to) take the position that the vendor will learn, based on public opinion, what to do and what not to do, but really, what is wrong with the idea the default legal position should be that if the package says “cheese from cow’s milk” that that’s exactly what’s in it?

    Regardless, my point was more that Autodesk really does have the right to put whatever the heck restrictions they want on purchasers, just as purchasers have the right to say no thank you.

    I agree (and have said many times before) that two parties who are signing on the dotted line to show a “meeting of the minds” before money changes hands, ought to be able to agree on whatever it is they want to agree on. Where I disagree violently with the case law that has come down in some jurisdictions is that I don’t think it ought to be possible to add terms that the retail customer doesn’t see until after he gets home from the store, opens up the software, plops the CD into his drive, and spends 20 minutes waiting for the thing to unpack all its files. The vendor has significantly increased the cost to the consumer to say “no thank you” at that point.

    And no one would ever buy that car again because of the screed you post to the Internet.

    I think you overestimate the reach of a few voices on the internet. In any case, as a matter of principle, I think terms added after payment are inherently wrong, regardless of the availability of someone else’s screed or even the legal document itself on the internet. If you’re doing an internet transaction, sure, make the customer read the info and sign before taking their money and shipping the product. If you’re doing a brick and mortar transaction, have the customer physically sign an agreement if there’s a non-standard agreement.

    However, the alternative, where the government sticks its nose into every commercial transaction is very much worse.

    I’m not arguing for that. I’m merely arguing that the stock defaults that people expect for other transactions ought to be extended to software transactions. This will certainly increase transaction costs for software vendors that want more protections than copyright law gives them automatically (e.g. can’t resell, etc.) but I personally don’t view that as a bad thing. The software vendors want (for them) the best of both worlds — a unilateral non-negotiated contract, after money changes hands, when, instead of thinking “I better read this before I buy it” the consumer thinks “I already bought it, so it’s mine, whatever.”

    The wonder of the unregulated free market is that I get to choose the option I want, and the wonder of the internet is that it gives me lots of data and access to experts to help me choose the best option.

    I appreciate the power of the internet (assuming it, itself, is not co-opted) to help with disclosure; however, I strongly believe in reasonable defaults and full, up-front disclosure of things that don’t meet those defaults. It’s certainly within the purview of the government to set defaults. If you think these government-set defaults always increase transaction costs, you’re really not thinking hard enough. Even with the internet, you can never have complete information about the situation you’re in. Every day you make a million tiny assumptions. Sure, some of those would work absent any government standards, but others might not, and you might have to devote a lot more energy to figuring out who you can trust and who you can’t.

    I’m not a true anarchist or maybe even a hard-core enough libertarian. If you look at the milk scandal in China and think “that can’t happen here”, you might be surprised to find out that it already did happen here. I may not agree with all the regulations that were done to “fix” the problem, but arguably, they worked reasonably well, at arguably too high an economic cost — maybe all we really needed is a simple full-disclosure law with significant teeth.

    I love vegetarian pizza, and hate pepperoni pizza. If you love fatty meats on your pie you’d better hope that Obama doesn’t make me the national Pizza Czar.

    Well, I suppose you could piss off the meat vendors and drive up costs a bit by requiring ugly pictures of obese heart attack victims on all pizza boxes that meats are shipped in, but I really can’t see meat being regulated much worse than cigarettes, even in the most dystopian world.

    As a software developer I’m all in favor of lots of leverage to get my bills paid, aren’t you?

    Sure, but there there should be some limits somewhere, otherwise you might find some American Indians somewhere with a legitimate claim to your living quarters.

  135. @Jessica Boxer:

    We’re not talking about some $99 boxed software purchased from Newegg. We’re talking about AutoCAD, a package that currently costs $4,500 and wasn’t much cheaper in 1997. The upgrade to AutoCAD 2012 from 2009 or 2011 costs nearly $2,000.

    To be fair, I understand Autodesk’s stance on this. However, you don’t sign some piece of paper when you buy AutoCAD. You get a box with a CD, a manual and a EULA. Well, you probably don’t even get a paper manual anymore. The envelope the CDs come in has the ubiquitous sticker on it saying “STOP! Don’t open unless you agree to the terms of the license agreement.”

    Exactly how many of Autodesk’s customers even understand that EULA, which they have not signed? Autodesk’s typical customers are architects, small custom-build job shops, and small engineering shops. They are not lawyers and they are certainly not experts in ‘intellectual property law’.

    There is no meeting of the minds, so there is no contract. No contract means that there is a sale, not a license. The only way Autodesk has gotten a favorable ruling is by buying the judges of Ninth CIrcuit.

  136. # Patrick Maupin Says:
    > By and large, in most arenas of life, where it matters, the
    > average man’s conception of his “rights” is not so far from
    > reality that the small delta will cause him significant grief.

    I totally disagree. The word “right” is bandied about today without any apparent constraints. I think there is a huge amount of different as to what people think is their right and what other people do. Richard Stallman thinks he has the right to see my source code. I respectfully disagree. The UCC, as with every law, is bristling full of the usual special interest exceptions, special grants of privilege, unfunded mandates and all the usual claptrap that lawyers can think of.

    I certainly recognize that the differences exist on the margin, but that margin is pretty thick. Evidenced by the fact that most people don’t give a hoot about EULAs, and you and many here, do.

    Outside of software, consider the plain fact that most folks pretty much are cool with ripping their CDs onto their buddies’ iPod. Even though they clearly don’t have the right to do so. In this instance and many others like it, the commonly held concept of rights is way off from the legally constituted arrangements.

    > I don’t think it ought to be possible to add terms that the retail customer
    > doesn’t see until after he gets home from the store, opens up the software,

    And the customer is not required to make any effort to see these conditions? You can usually find the EULAs online pretty easily, or you can phone the software vendors and they will send you them. Most people don’t, because they don’t care.

    I don’t ever remember buying a shrink wrap product where there wasn’t some immediately obvious physical barrier warning me about additional terms. However, the fact is most people don’t really care, or don’t care enough to plow through the legalize. Good god, in my state when you buy a house, a much more serious prospect than a drawing program, most people don’t read the papers they are signing. In fact, in Illinois this problem is so bad they passed a law to say you can change your mind up to three days after signing because people are so lazy.

    Defaults are dangerous, especially when set by powerful overreaching governments. I’m not saying we shouldn’t have any, but surely there are alternatives? As a matter of fact there are. In fact our host is very much involved in one. You non shrink wrap guys like to use open software, but there are so many subtly different licenses that who has time to tell whether you want to install this piece or not. Especially so when you are installing a distro. Here you are installing hunderds of pieces of software, many with different licenses. Are you really going to review them all?

    Well Eric has a solution: you don’t have to. If the license is OSI approved then you are probably good to go. You hire an expert to make the subtle legal distinctions for you, and so you don’t have to worry about it. Their stamp of approval is good enough for you.

    It would be perfectly possible to do similar things with EULAs, but government involvement and defaults just mucks up the whole muddled mess. And, perhaps more importantly, most people don’t care about their software licenses as much as you guys do, so don’t put much value on a service like that.

    > I think you overestimate the reach of a few voices on the internet.

    Actually, I don’t think I do, but lets not argue that point.

    > I’m not arguing for that. I’m merely arguing that the stock defaults
    > that people expect for other transactions ought to be extended to
    > software transactions.

    INAL, but I suspect they are. However, when you break the little seal that says “If you break this seal you’re going to see some nasty additional terms inside”, well your not operating on the default any more.

    If you sign your car purchase agreement, and section 27 a., sub paragraph q, item iii says “you will have to agree to the licensing for your car’s spark plug controller”, well, we are not operating on defaults any more.

    Holy cow, this is a long comment. If you made it this far without falling asleep at my rantings, then you probably need to find something more interesting to do :-)

  137. OK, I thought I had written enough already, but I find Morgan’s comment so wrong that I have to reply.

    # Morgan Greywolf Says:
    > We’re not talking about some $99 boxed software purchased from Newegg.
    > We’re talking about AutoCAD, a package that currently costs $4,500

    Don’t you think you should be MORE prudent with higher priced purchases? I do. I’m a lot more careful buying a car than a candy bar.

    > The envelope the CDs come in has the ubiquitous sticker on it saying “STOP!
    > Don’t open unless you agree to the terms of the license agreement.”

    Right, so you’ll agree we are not operating on defaults here then. You are given explicit warning that you are not operating under normal conditions but that there are special additional conditions.

    > Exactly how many of Autodesk’s customers even understand that EULA,
    > which they have not signed?

    So what? If you accept some legal agreement you don’t understand then caveat emptor. If you need the software, and need to be real concerned about the details of the license, get a lawyer. Once again, most people don’t care, because all they are going to do is install it and use it, and the agreement lets them do that.

    > There is no meeting of the minds, so there is no contract. No contract means
    > that there is a sale, not a license.

    I assume “meeting of the minds” is some legal terminology. I’m not a lawyer, but from a fairness point of view, if the vendor offers you an agreement to use their software either you agree to it or you don’t. If don’t agree because you don’t understand that makes no difference, if you do agree because you pretend you understand, that makes no difference. However, your failure to understand does not give you the right to invalidate their offer of sale based on their EULA, and pretend they offered to sell it to you like a bag of bananas. They have the rights to set the terms of their sale. You have the right to accept or not.

    > The only way Autodesk has gotten a favorable ruling is by buying the judges of Ninth CIrcuit.

    That is an outrageous accusation. Do you have any evidence to support the claim that they have bribed Federal justices? If you do I suggest you contact the FBI. I think the 9th circuit has a bunch of loons on it, But they are ideological nut jobs, not corrupt whores.

  138. @Jessica Boxer:

    Well Eric has a solution: you don’t have to. If the license is OSI approved then you are probably good to go.

    What happens when party A sells a high-priced software package with source code and lots of onerous license conditions to party B, and then one of party B’s workers violates the license and puts the source code on the internet under an OSI approved license, and party C, relying on party B’s employees’ representation, integrates the software so tightly into its workflow that it would cost millions to extricate it, and then party A finds out about party C’s use of the software?

    (Whatever your answer is, be sure that it conforms to you theory that the engine controller firmware writer ought to be able to confiscate every Lexus in the US.)

    I assume “meeting of the minds” is some legal terminology.

    yes

    I’m not a lawyer, but from a fairness point of view, if the vendor offers you an agreement to use their software either you agree to it or you don’t…. They have the rights to set the terms of their sale. You have the right to accept or not.

    None of us are arguing this point. The sole question is, should the agreement have to be in place before you plunk down the cash or not? You’ve never answered that directly, although you’ve danced around it by asserting that you think that breadcrumbs showing the path to some unread agreement might be sufficient, but for all the other examples you have given except for the bag of bananas, the agreement is, in fact signed and in place before money changes hands.

    The word “right” is bandied about today without any apparent constraints. I think there is a huge amount of different as to what people think is their right and what other people do.

    Whether you realize it or not, we’re all on the same slippery slope (but at slightly different altitudes), as soon as you agree that it’s up to government to enforce the “contract,” because in the anarchy absent the government, default contract rights would, in fact, be whatever the average citizen thought they were.

  139. Patrick Maupin Says:
    > party C, relying on party B’s employees’ representation, integrates the
    > software so tightly into its workflow that it would cost millions to extricate
    > it, and then party A finds out about party C’s use of the software?

    What happens is exactly the same as if I steal your car and sell it to Morgan. You complain, you get your car back, Morgan gets screwed, and tries to sue to recover from me, and I maybe go to jail. This is no different than any other type of theft.

    >The sole question is, should the agreement have to be in place before you
    > plunk down the cash or not? You’ve never answered that directly

    That’s not fair, I haven’t danced at all! The answer to your direct question is: it is up to you the seller to decide. Its your money, you make the call.

    If you agree to some terms and don’t take the trouble to look at the terms before agreeing, then that is your problem, you should have been more careful. If the terms are hard to see, you might consider that a red flag, and look even more carefully. If they won’t tell you the terms of the license beforehand, then you either risk it, or don’t buy, your call.

    I don’t see why that isn’t self evident, unless you want to treat all adults as irresponsible children who are incapable of deciding for themselves without help from meddlesome bureaucrats.

    > the agreement is, in fact signed and in place before money changes hands.

    If you believe that I can only assume you haven’t been involved in the negotiation of large contracts before. Terms are often not fully negotiated before some money changes hands. I once worked on one project for six months before the SLA was finally finalized.

  140. What happens is exactly the same as if I steal your car and sell it to Morgan. You complain, you get your car back, Morgan gets screwed, and tries to sue to recover from me, and I maybe go to jail. This is no different than any other type of theft.

    This may vary by state, but this example reminded me that, a few years ago, a co-worker of mine sold a car to a guy who paid for it with a forged money order and then immediately resold it. The co-worker figured out the money order was forged almost right away (within three days) and went to the state, but it was too late — when the dust settled, the co-worker had neither the car nor the cash. So in Texas, anyway, at least in some jurisdictions, the engine controller coder probably wouldn’t actually acquire any shiny new Lexus cars quite so easily, and I have to admit — with this example, you’ve just proven your own point that people don’t really understand their rights properly.

    That’s not fair, I haven’t danced at all! The answer to your direct question is: it is up to you the seller to decide. Its your money, you make the call.

    This is still a dance. I’m not even sure if you meant to write “buyer” when you wrote “seller.” Your intent in these two sentences is not clear at all.

    If you agree to some terms and don’t take the trouble to look at the terms before agreeing, then that is your problem, you should have been more careful. If the terms are hard to see, you might consider that a red flag, and look even more carefully.

    OK, this is clear enough. You’re absolutely against the laws that require contracts to be written in a font size large enough for old folks to read, and not a font that merely looks like a decorative margin. Got it.

    I don’t see why that isn’t self evident, unless you want to treat all adults as irresponsible children who are incapable of deciding for themselves without help from meddlesome bureaucrats.

    Ground rules aren’t about allowing “meddlesome bureaucrats” into each deal. They are simply about what happens in the courts when deals go wrong.

    the agreement is, in fact signed and in place before money changes hands.

    If you believe that I can only assume you haven’t been involved in the negotiation of large contracts before. Terms are often not fully negotiated before some money changes hands. I once worked on one project for six months before the SLA was finally finalized.

    Are you seriously going to claim that some serious money (relative to the size of the contract) changed hands before there was any sort of signed agreement? Are you going to tell me the companies were stupid and didn’t have lawyers and/or paid, skilled negotiators working this during the duration, or are you stupidly going to tell me that the same level of diligence should be applied if I buy a $200 software package down at Fry’s?

    For someone who, in the past, has been awfully quick to shout “straw man”, you’re really pumping them out today — first the pizza, then this.

    Look, if everybody is happy with a deal, no harm no foul. But when somebody’s unhappy, then the court quite often has to get involved. If you really want to reduce government meddling, you should be arguing for sane defaults, not arguing that we don’t need them at all. Just like not making a decision is, in fact making a decision, not having a default is, in fact, having a default. If you consider that sane defaults might just be those which reduce the number of court cases, and you consider that there are thousands of times the number of consumers as there are software companies, you might realize that defaults which don’t let arbitrary software companies insert arbitrary clauses after the sale just might reduce the number of cases that go to court, and certainly, the number of close cases that go to court and actually require lots of time and energy on the part of the court to sort out.

    And you haven’t put forth any serious argument about how the general population will automagically be infantilized by the mere existence of a law that says, “absent a signed agreement up front, the exchange of money finalizes a contract.”

    BTW, this has been law in most places, for most things except software, pretty much forever. But what happens when the other vendors catch on? You pull the cork out of the wine and notice (or not) that the side of the cork says that, btw, it was really made in California, not France, and that’s OK, because you can see the disclosure before you drink it, even though you bought it two years ago? Where do you draw the line?

  141. To be perfectly clear about my point of view:

    If I go down to the store and plunk down $400 cash for a PlayStation 3 and walk out the door, and don’t either put its bits into a Tor replicator, or its hardware into a StarTrek replicator, and do some technical, not legal research on the internet about it, and then do a bit of homework, and then simply announce to the world “hey, look what I found out about this!”…

    … there should be no way on $(DEITY)’s green earth that I’m potentially subject to potentially unlimited liabilities in a courtroom on the other side of the country.

  142. Patrick Maupin Says:
    > This is still a dance. I’m not even sure if you meant to write “buyer” when you wrote “seller.” Your intent in these two sentences is not clear at all.

    Ah, sorry for the typo, lets try again: “it is up to you the buyer to decide. Its your money, you make the call.”

    > OK, this is clear enough. You’re absolutely against the laws that require contracts
    > to be written in a font size large enough for old folks to read, and not a font that
    > merely looks like a decorative margin. Got it.

    Wow, that is a lot of hostility. Where exactly did I say that?

    > Ground rules aren’t about allowing “meddlesome bureaucrats” into each deal.

    Where exactly did I say that I was opposed to ground rules or default contracts? I think you are reading a lot between the lines. Meddlesome bureaucrats referred indeed the the legal profession who seem to feel at liberty to change contracts after they are written and agreed upon. I don’t know where you get the idea I oppose ground rules or default contracts.

    > Are you seriously going to claim that some serious money (relative to the size
    > of the contract) changed hands before there was any sort of signed agreement?

    I never said there was no signed agreement, I said that all the terms were not finalized or even, in some parts negotiated. Which is exactly parallel to your concern, namely that terms are added after the contract is executed. It happens all the time.

    > And you haven’t put forth any serious argument about how the general population
    > will automagically be infantilized by the mere existence of a law that says, “absent
    > a signed agreement up front, the exchange of money finalizes a contract.”

    I made no such claim. (Our appalling school system and our PC parenting methods are doing that job for us, but that is a separate question.)

  143. @Patrick:
    Apple can’t pull this crap against Android because google would have the antitrust people knocking at Apple’s door so fast it would make anybody’s head spin.

    I don’t quite understand this one right here. How and in what situation would Apple regulate Android’s apps? I think I missed something again.

    @Morgan:
    And since the biggest killer apps are the Web and e-mail, there is nobody — and I mean nobody — that has more competency in that arena than Google.

    One thought.

    Doesn’t GMail still pale in comparison (size of subscribers) to Hotmail? Yahoo’s surely dead, but it my (unfortunate) assumption that the vast majority of the non-nerd web-using populace actually *weren’t* using GMail.

    I think you’re right that GMail is a much more *competently* made solution that Hotmail, but then I also think that iOS is more *competently* made OS than Android. That obviously doesn’t mean iOS “wins”.

    I believe the whole point of these inevitabilities discussed here were not that the “most competent” product wins, but rather that among comparable products the one with the most competent *market strategy* wins, of which Android’s is very very formidable.

    Along these lines, I love GMail, but it truly is just another webmail service, arguably one that’s a little nerdier than most, with features not-immediately-intuitive to a tech-lliterate like label management, and even a tiny bit of critical press thrown in (vis-a-vis Google Buzz and +1, wherein Google seems determined to strap every social initiative onto your Contacts Book).

    Google Maps Navigation is a brilliantly disruptive move, but I consider it a standout. There is no guarantee that simply because Google is a web company that it will monopolize web services in a market merely through competent worksmanship, as above, against comparable competitors.

    Like Microsoft and Windows, however, Google’s ad infrastructure is almost un-avoidable by any computer-using member of the populace; it’s my thought that you can’t browse the web today (any of Google’s services aside) without Google making money off of the mere act of you viewing pages. That allows them flexibility in sinking resources into other venues, but I find it quite like a Microsoft+XBox situation; unless Google can truly disrupt a market, just because they can enter it, doesn’t mean they win, even if it *is* their home turf (the internet).

  144. @Jessica:

    Wow, that is a lot of hostility. Where exactly did I say that?

    Not trying to be hostile. That’s honestly how I read, taken to its logical conclusion, “If you agree to some terms and don’t take the trouble to look at the terms before agreeing, then that is your problem, you should have been more careful. If the terms are hard to see, you might consider that a red flag, and look even more carefully.”

    Where exactly did I say that I was opposed to ground rules or default contracts?

    Well, you seem to be opposed to the idea of there being a default contract that if I go to the store and give them money and they give me stuff, and I take the stuff home, then it’s my stuff to do with as I please. If you aren’t really opposed to this, then I don’t know what to say.

    Meddlesome bureaucrats referred indeed the the legal profession who seem to feel at liberty to change contracts after they are written and agreed upon.

    But it all hinges on the meaning of “agreed upon.” For a normal retail transaction, I think any attempt to present me with conditions after I get home is due to “the legal profession who seem to feel at liberty to change contracts after they are written and agreed upon,” but due to those in the legal profession employed by business rather than government.

    Which is exactly parallel to your concern, namely that terms are added after the contract is executed.

    No, it’s not. In your scenario, it’s known up-front by both parties that the contract is a work in progress, and the MOU that was (typically) signed before any work began explained that more agreements and more money and work would happen later. Also, it is highly unlikely that the contract continues to be modified after all the work is done and all the money changes hands, and in any case, if it is changed later, it’s due to a true meeting of the minds and true uncoerced agreement on both sides.

    Honestly, it’s not in the same league as holding a gun to someone’s head, but can’t you at least acknowledge that there might be some merit to the viewpoint that it is coercive to present someone who was just expecting a retail transaction with terms after they get home and unpack the product? What if they live 200 miles from the store? Or if it took 5 days to ship from Amazon? (Especially for an on-line transaction, there is no way that the costs of enforcing an electronic signature are especially burdensome. But the manufacturers want to have their cake and eat it too — lopsided contracts, no effective notice of the terms until they get their money, and a frictionless experience for the customer until he’s got a lot of time and money invested in the outcome. It really is like printing the terms for the wine on the side of the cork.)

    > And you haven’t put forth any serious argument about how the general population
    > will automagically be infantilized by the mere existence of a law that says, “absent
    > a signed agreement up front, the exchange of money finalizes a contract.”

    I made no such claim. (Our appalling school system and our PC parenting methods are doing that job for us, but that is a separate question.)

    Wow, I’m really mis-reading you tonight, because I sure thought you were making such a claim when (in your response to my claim that the default ought to be that once you pay it’s yours) you wrote:

    If they won’t tell you the terms of the license beforehand, then you either risk it, or don’t buy, your call.

    I don’t see why that isn’t self evident, unless you want to treat all adults as irresponsible children who are incapable of deciding for themselves without help from meddlesome bureaucrats.

    I mean this whole discussion started because some of us think that the way it ought to be is that if it’s complicated, you sign a contract (or sign an MOU to sign a contract, or whatever) before money changes hands, and if it’s simple, you don’t — BUT, if there’s no signed contract before money changes hands, then whoever gets the goods ought to be able to do with them as he pleases.

    You seemed to think this might be a bad idea, but maybe I’m misreading that, too. In any case, if you do think it’s a bad idea, I haven’t correctly discerned your reasoning yet, because every argument I thought you made, I misinterpreted.

    The only argument I know of against treating retail software (and gaming console and cell phone and computer) sales just like banana sales boils down to this: doing so would make transactions more costly (by requiring upfront signatures) for those companies that insist on engaging in anticompetitive, antisocial behavior like disallowing reverse engineering, modification, and resale.

    But being the pinko-commie control freak that I am, I actually view this as an argument for treating software more like bananas. If I want to sell cyanide-laced bananas to someone for some kind of industrial process, I’d probably need a signed, written contract to make sure they didn’t resell them to a grocery store. Likewise, if I want to control what the customer does with software that I “license” to him, then it shouldn’t be disguised as a cash register sale.

  145. @twilightomni:

    I don’t quite understand this one right here. How and in what situation would Apple regulate Android’s apps? I think I missed something again.

    Since revenue per app in the Apple store still dwarfs revenue per app in the Android store (and certainly did a few months ago), Apple could theoretically (technically, but possibly not legally) make some app vendors choose — Android or Apple. Put it in the Android store, and it disappears from the App(tm)le App(tm) store. But that would attract the attention of regulators really quickly.

    Cydia is small, and the number of jailbroken iPhones is smaller, so it’s a no-brainer for Toyota to cave to Apple, especially since they want licensed iPod/iPhone jacks in all their cars. (Another way that the average guy might not see pressure applied. Perhaps some car manufacturers have to choose between Android and Apple support, there, too.)

  146. To be perfectly clear about my point of view:

    If I go down to the store and plunk down $400 cash for a PlayStation 3 and walk out the door, and don’t either put its bits into a Tor replicator, or its hardware into a StarTrek replicator, and do some technical, not legal research on the internet about it, and then do a bit of homework, and then simply announce to the world “hey, look what I found out about this!”…

    … there should be no way on $(DEITY)’s green earth that I’m potentially subject to potentially unlimited liabilities in a courtroom on the other side of the country.

    You may not like it, but the tide of legal opinion has turned against you and according to laws duly enacted by Congress under the Constitution of the United States, this is indeed the case. George Hotz learned that lesson the hard way; it’s my belief that he settled because he knew he would lose. The law is clear, and he broke it.

    Hell, the opinion of PS3 owners turned against Hotz because regardless of how innocent he thought his actions were, he did the very thing the DMCA was intended to prevent: he enabled theft and fraud. Consider also that without the DMCA and strong DRM one of the greatest boons to moviewatchers — Netflix streaming — would simply not exist. The big studios simply wouldn’t allow it.

    For guys like you and me, the freedom to tinker is everything, but for the lawmakers and jurors in this country it must be balanced against the rights of IP holders to their property, and likewise against the rights of consumers to enjoy the services those IP holders provide them by virtue of owning that IP. Also, there isn’t nearly as much money in the freedom-to-tinker lobby.

  147. Since revenue per app in the Apple store still dwarfs revenue per app in the Android store (and certainly did a few months ago), Apple could theoretically (technically, but possibly not legally) make some app vendors choose — Android or Apple. Put it in the Android store, and it disappears from the App(tm)le App(tm) store. But that would attract the attention of regulators really quickly.

    Apple cannot afford to anger their developers in this way, legal concerns aside. This is a group that complained loudly once Apple tried to restrict what programming language you could write an app in. If Apple starts yanking apps for having cross-platform variants elsewhere, the good devs will jump ship, leaving the corporate coding sweatshops and that’s not the image Apple wants to project. Apple platforms are the hacker platforms right now, and Apple has great interest in being associated with the best, brightest, and most creative.

  148. The law is clear, and he broke it.

    No, and not necessarily. Several courts have ruled that the DMCA does not protect access to hardware; Hotz’s released key arguably only provides that (although due to the way Sony did their security, piracy capabilities could be layered on top of that).

    I will grant you the odds were against him, but I don’t think it would be a slam-dunk for Sony in any district but the ninth. To avoid the wrath of Jessica, I will not go so far as Morgan and allege bought and paid for judges, but I will allege that the judges probably routinely rub elbows with the content producers.

    Consider also that without the DMCA and strong DRM one of the greatest boons to moviewatchers — Netflix streaming — would simply not exist. The big studios simply wouldn’t allow it.

    The jury’s still out on how long Neflix requires DRM. The studios are always dragged kicking and screaming into the next technological advance, but they would have eventually gotten there, even without paying for those laws.

  149. @Patrick> Apple could theoretically (technically, but possibly not legally) make some app vendors choose — Android or Apple.

    Pure FUD. Unsupported. Unwelcome.

    Plain & Simple.

  150. @Life as we know it:

    Apple could theoretically (technically, but possibly not legally) make some app vendors choose — Android or Apple.

    Pure FUD. Unsupported. Unwelcome.

    WTF??!? Apple’s pressuring Toyota into removing a perfectly legal app from a perfectly legal store for jailbroken iPhones, at one point they disallowed any interpreters at all in code on the iPhone, whenever somebody else manages to make iTunes work with non-Apple devices they break it again right away, control freak Steve Jobs has a rod shoved so far up his ass that he needs a turtleneck to cover up where it protrudes out the back of his neck, and you think they wouldn’t even consider whether it might be feasible and useful to make some developers choose?

  151. The only possible justification Apple has (and the one that you’re debating) is “we made this system, we control what runs on it”. That is a completely different affair from regulating software on other platforms.

    And vis-a-vis iTunes, quite frankly, if I hacked my Android to work with Ovi maps and services, I’d expect Nokia to have something to say about it. The device is one thing entirely, but I have no inherent right to use someone else’s commercial service under conditions that it wasn’t meant for.

    (Whether you think music files should be coupled to that service via DRM is another question, but luckily for iTunes that is no longer the case.)

    Steve Jobs is controlling, but that’s a separate affair from all of these DMCA arguments, and is entirely a leap into speculation…and by association, uncertainty and doubt.

  152. @twilightomni:

    The only possible justification Apple has (and the one that you’re debating) is “we made this system, we control what runs on it”. That is a completely different affair from regulating software on other platforms.

    It’s not regulating software on other platforms if you say “if you put it on that platform, you can’t have it on this platform” — it simply leaves it up to the developer to decide what they care about more. They apparently told Toyota something along the lines of “if it runs on a jailbroken iPhone (which Apple can’t legally control), you can’t have it on non-jailbroken iPhones.” Or maybe even “you can’t have an iPhone connector in your vehicles any more.” I don’t know the exact conversation, but it’s pretty bloody obvious that anti-competitive pressure was applied.

    And vis-a-vis iTunes, quite frankly, if I hacked my Android to work with Ovi maps and services, I’d expect Nokia to have something to say about it. The device is one thing entirely, but I have no inherent right to use someone else’s commercial service under conditions that it wasn’t meant for.

    Ovi maps is a free competitive product differentiator. iTunes is a sales channel, with some added convenience factors. Which is supported on Windows as well as Macs. Whether Jobs has a right to be controlling in disallowing certain devices is irrelevant to the fact that he does, for anti-competitive reasons (tying product sales to his almost monopoly position in electronic music distribution).

    (Whether you think music files should be coupled to that service via DRM is another question, but luckily for iTunes that is no longer the case.)

    Sure. Just enough friction that it’s damned inconvenient to use non-Apple devices to retrieve the music you bought from Apple, but not so much friction that you can’t easily share with your iPod wielding friend.

    Steve Jobs is controlling, but that’s a separate affair from all of these DMCA arguments, and is entirely a leap into speculation…and by association, uncertainty and doubt.

    What DMCA arguments? iPhones are cell phones, which are specifically exempted by the Librarian of Congress from any DMCA actions related to jail-breaking or running unauthorized apps. That removes “the only possibly justification Apple has” completely from the equation.

    I stand by my reasoning. Apple has engaged, does engage, and almost certainly will continue to engage in anti-competitive behavior, probably where their internal cost/benefit analysis (including, possibly, both legal and customer/developer attitude analysis) indicates that they can get away with it and that it is worthwhile for them to do so.

  153. And here I am with a shiny new BlackBerry 9300 which I’m enjoying a whole lot. First smartphone I’ve ever used that I didn’t immediately want to smash to tiny little bitty pieces with a toffee hammer. I KNOW it’s a dead platform walking. But I LIKE it. It’s MINE. Cross fingers RIM doesn’t go bust in the 24 months my contract runs, and there’s an Android phone at the other end that I don’t detest …

    (One way cool feature? Ogg Vorbis and FLAC are included out the box. Not Ogg Theora, sadly. But wow, I thought doing that sort of thing meant you suddenly got charged a whole lot more for your MP3 licence …)

  154. What DMCA arguments? iPhones are cell phones, which are specifically exempted by the Librarian of Congress from any DMCA actions related to jail-breaking or running unauthorized apps. That removes “the only possibly justification Apple has” completely from the equation.

    I’m assuming these exemptions and the ultimate validity of the DMCA is exactly what you’re arguing with Jeff and Jessica about.

    Ovi maps is a free competitive product differentiator. iTunes is a sales channel, with some added convenience factors.

    You’re using some arbitrary words here. I’m referring to all Ovi services, and Ovi maps being free doesn’t change the fact that it’s free to use under a certain set of conditions — you don’t have the right to it through whatever device you choose. iTunes, by virtue of being exactly what you say it is – a channel for sales – is precisely a content delivery service, so using the words “sales channel” doesn’t invalidate my argument.

    Sure. Just enough friction that it’s damned inconvenient to use non-Apple devices to retrieve the music you bought from Apple, but not so much friction that you can’t easily share with your iPod wielding friend.

    I’m really not sure what you’re picking at here. You take your music out of your iTunes folder, you drag and drop, and you put it on your Palm Pre/Droid/Galaxy. Just like Samsung and Motorola say. Or you use DoubleTwist, as I do.

    Do you expect a software/hardware company to explicitly support its competitors’ devices? The world may support USB Mass Storage, but anything more is like asking “Why doesn’t Apple support PlaysForSure devices? Dragging and dropping to my Zune/Creative/Sansa is so darned *inconvenient*.”

    I totally wish my Palm phone synced with iTunes. I love seeing hacks and workarounds that enable me to do so. But do I have a legal right or a moral claim to expect any more than the basic portability of my content/property (which I have)? Of course not.

  155. I’m assuming these exemptions and the ultimate validity of the DMCA is exactly what you’re arguing with Jeff and Jessica about.

    There are several slightly different yet related topics being discussed.

    iTunes, by virtue of being exactly what you say it is – a channel for sales – is precisely a content delivery service, so using the words “sales channel” doesn’t invalidate my argument.

    But your argument doesn’t invalidate my argument that using two near monopolies (MP3 players and digital music) to reinforce each other is anticompetitive, and is a prime example of what Apple is all about.

    I’m really not sure what you’re picking at here. You take your music out of your iTunes folder, you drag and drop, and you put it on your Palm Pre/Droid/Galaxy. Just like Samsung and Motorola say. Or you use DoubleTwist, as I do.

    WHAT iTunes folder??!? Why the hell would I support Apple, especially since they go out of their way to not support desktop Linux? But as far as what I was getting at: You were asserting that “luckily for iTunes” DRM is no longer a factor, and I’m just making the point that Apple’s distaste for DRM is purely self-serving. Instead of the music vendors being able to make it slightly difficult for people who didn’t buy the music to listen to it, it’s Apple who gets to make it easier to share unbought music with your friends who have iPods, while simultaneously making it slightly difficult for people who didn’t buy Apple MP3 players.

    Do you expect a software/hardware company to explicitly support its competitors’ devices?

    No, but you can tell a lot about the character of a company by whether or not they play cat and mouse games to attempt to deliberately exclude users of non-sanctioned platforms from interoperating. Apple keeping people from getting their bought and paid for iTunes music using other devices is at the same moral level as Microsoft tweaking Windows 3 so it wouldn’t run on DR-DOS. Apple deliberately bricking iPhones (which they don’t do any more because the backlash taught them that that was one restriction too far) is worse than anything Microsoft ever did, and on a par with Sony.

    But do I have a legal right or a moral claim to expect any more than the basic portability of my content/property (which I have)? Of course not.

    For a lot of these things, there is no valid legal claim. Morality may be a bit more personal. My view is that big companies have no moral obligation to support hackers, but have a moral obligation not to deliberately squat on them. And I try really hard not to do business with companies I consider to be immoral.

  156. I consider hacking a device to be legally acceptable and morally preferable. It is where the hacking begins to affect services or networks that I do not own or control that I feel I have no ground to argue a hacking right, whether or not I agree with the policies of the company who does control the service.

    As for iTunes, you literally can drag and drop your music right out of the main window.

    Anticompetitive is not the same as immoral. You could argue that Google gutting any industry (read: navigation) by giving away free products subsidized by their ad empire, or the near inability to view a site in any way that *doesn’t* give Google a page view anti-competitive. But I don’t consider their business immoral, merely not conducive to fair competition (where fair competition = companies selling opposing products and services in a given market segment).

    That’s definitely anti-competitive (assuming your definition of anti-competitive = preventing competition), because that’s exactly what’s going on. But I don’t whine it’s evil that their unavoidable-electronic-transaction-driven revenue allows them to disrupt entire industries by virtue of giving away whatever they like.

    Maybe if you had a reason to hack ad networks and search engines, you’d consider Google to be immoral as well. But immoral is not merely “they won’t let me do what I want”, even in the context of possessions and actions. Hacking is not always morally good, and it is not always morally bad to oppose hacking. Specific hackers, specific actions are all specific cases. Hacking is merely changing a machine, and says nothing about the purpose to such which changes are wrought.

    Do you want to want to interface your X with your iTunes collection? I’m with you. Do you think it’s immoral for Apple not to support Palm just like it supports iPods or, ex., Netflix not to support all Android phones and intentionally disable those that try to interface? I see no grounds to condemn them for doing so, in the absence of other arguments.

  157. @Patrick Maupin

    “WHAT iTunes folder??!? Why the hell would I support Apple, especially since they go out of their way to not support desktop Linux?”

    1) you can drag songs from itunes directly to a folder.
    2) right click on a file and click “Show in Finder”
    3) They would have to go out of their way to support desktop linux. There is almost zero economic incentive to support desktop linux, almost no one runs it. And the few who do think everything should be “free”

  158. It is where the hacking begins to affect services or networks that I do not own or control that I feel I have no ground to argue a hacking right, whether or not I agree with the policies of the company who does control the service.

    About network services, I agree, except to the extent there is a monopoly position. Google apparently does too, that’s what their data liberation front is all about. About products, when Apple deliberately bricked rooted iPhones, they were acting evilly, just as Sony was when they released a rootkit. You can disagree all you want; the probability of you convincing me that either of these actions was not highly immoral approaches zero, as does the probability of you convincing me that either of these companies is not, at the top, morally bankrupt.

    As for iTunes, you literally can drag and drop your music right out of the main window.

    No, I can’t. Perhaps you weren’t paying attention. Apple is an immoral company that has deliberately destroyed other people’s devices. They don’t directly support linux, and given their hostilities, I cannot trust them to leave my Linux box alone if I applied a hack. Given their immorality, I wouldn’t give them a thin dime anyway, so I don’t have an iTunes main window.

    Anticompetitive is not the same as immoral.

    My definition of anticompetitive is, according to my definition of morality, immoral. The collective wisdom of where these intersect is typically enshrined in competition laws, but as usual, laws only map loosely to morals.

    You could argue that Google gutting any industry (read: navigation) by giving away free products subsidized by their ad empire, …

    You’re conflating two entirely different things here, and entirely misrepresenting google’s business model. They don’t “give away free products subsidized by their ad empire” so much as they “experiment to see which products will actually help their ad empire’s bottom line.” Take google real estate. I loved it, but apparently they didn’t think it would add enough long term value to keep it.

    That’s definitely anti-competitive (assuming your definition of anti-competitive = preventing competition), because that’s exactly what’s going on.

    Again, you’re conflating highly competitive behaviors, such as providing services nobody can touch at a price nobody can beat, with anti-competitive behaviors, such as sabotaging your competitors in sneaky underhanded ways that consumers might not even understand, and threatening “partners” that it’s your way or the highway.

    Maybe if you had a reason to hack ad networks and search engines, you’d consider Google to be immoral as well. But immoral is not merely “they won’t let me do what I want”, even in the context of possessions and actions. Hacking is not always morally good, and it is not always morally bad to oppose hacking. Specific hackers, specific actions are all specific cases. Hacking is merely changing a machine, and says nothing about the purpose to such which changes are wrought.

    You seem to have a highly simplistic view of my opinion. It is not, in fact, merely whining “they won’t let me do what I want.” It was never presented that way in any of my writings here, and for you to infer that I might see the world in such black and white terms is, frankly, somewhat insulting.

    Do you think it’s immoral for Apple not to support Palm just like it supports iPods

    No. And if iTunes were subsidized by iPods, rather than the other way around, I probably wouldn’t think it was immoral for Apple to block access to other devices. But when iPods are subsidized by iTunes, conditioning use of music that you buy from iTunes on using an iPod rather than a Zune is immoral. I’m not even saying that Apple needs to support other brands, just that they should stop deliberately breaking hacks that support other brands. It’s no different than IBM getting slammed for tying hardware and software, or Microsoft getting slammed for deliberately breaking Word compatibility from version to version. Whether any of these cases should actually be illegal or not is legitimately debatable, but in my worldview, they are all immoral.

    or, ex., Netflix not to support all Android phones and intentionally disable those that try to interface?

    Netflix is completely different than iTunes. Netflix doesn’t ever claim that you “own” a copy of any of the movies that you download. Personally, I think the studios are stupid, and they do some immoral stuff, but netflix is caught in the middle, and you can bet your bottom dollar they will gladly support any and every device the studios let them.

  159. No, I can’t. Perhaps you weren’t paying attention. …Given their immorality, I wouldn’t give them a thin dime anyway, so I don’t have an iTunes main window.

    You complained that it was too complicated to get stuff out of iTunes and I’m telling you it’s pretty darn simple. If you don’t use it and you don’t care, then stop using it to prove a trivial argument (that Apple cares about Apple) and a probable but non-provable argument (that Apple wants to screw non-Apple device users).

    They don’t “give away free products subsidized by their ad empire” so much as they “experiment to see which products will actually help their ad empire’s bottom line.”

    I have describe the situation as observed. A market’s participants are, without question, disrupted by subsidizing their products and services (however it is done) for the price of free. As this subsidization in this case depends upon a certain monopoly position, it in every way meets your definition of anti-competitive.

    You, however, have determined that regardless of the effect, the proper “intention” is what makes it moral (and by your definition, not anti-competitive). I’m not misrepresenting Google’s business model. Google’s business model is ad-network buy-in > support free services > encourage more ad-network buy-in. What happens in the meantime to all other competitors apparently doesn’t matter to you.

    You are conflating…competitive behaviors…with anti-competitive behaviors, such as sabotaging your competitors in sneaky underhanded ways that consumers might not even understand, and threatening “partners” that it’s your way or the highway.

    You say this is not anti-competitive, precisely because it is not a tactic with mal-intent to subvert other parties. Nevermind that my example meets your conditions.

    - Consumers arguably do not understand the reach and pervasiveness of Google’s ad monopoly, and it’s consequences when applied to reinforcing halo services in other industries.
    - As a counterexample to threatening other parties, Google has explicitly done this with Skyhook’s location services, although I admit that I had to reach for this one.

    I believe you are inconsistent in this case. I think you must either formalize your definition of anti-competitiveness to exclude this example, decouple your sense of “morality” from market competitiveness, or perhaps a third logical solution of your choosing.

    They should stop deliberately breaking hacks that support other brands.

    I say Apple has no responsibility – legal or moral – to support whatever device you like. It can not be condemned for doing so.

    Apple cannot be condemned by restricting access for other devices. You have no legal right to use iTunes with whatever device you want. You have no moral right – or prove it to me. The only moral claim is in defending your property, possession, and the usefulness of such, and Apple has not infringed upon that, unless…

    Apple chooses to remotely brick your device, which seems to be a particular sticking point. So let’s discuss this.

    - Third party devices. Apple cannot brick your Droid or Palm. (As far as I’m aware). Neither can Palm, Nokia, or Google brick your iPhone. “Bricking” inherently requires a device being deactivated *by* the manufacturer or [in cell phone uses] mobile service manager for that device.
    - If you violate the implied contract (like or it not, such EULA’s are currently law – and I hate them too) or terms and conditions of the device use in a way that impacts other surfaces, then Apple may surely be justified in bricking your iPhone.

    An iPhone in airplane mode? That surely avoids all conditions listed here and is definitely morally allowable. But the minute you make a device change that violates terms and services of use on that service or network, it is, quite simply, understandable that your device will be disabled.

    And you don’t get to set the terms and services for use on that network or service. You don’t get to decide “but this particular change in app validation or jailbreaking won’t actually cause a real service problem!” It’s not your service, it’s not your network, you have no other ground besides academic on which to make that decision, and as you are bound under a contract, your academic opinion is irrelevant.

    If you interconnect with my stuff, I reserve the right to tell you how to do so. It’s my stuff. Anything else is disrespectful. If you’re using a device that *I* designed to interface with stuff that *I* designed, you don’t get to use choose how to do so. If you want to purchase the device from me, disconnect it from my stuff, and henceforth we part ways, go for it. Otherwise there are terms and conditions to both participants.

    to infer that I might see the world in such black and white terms is, frankly, somewhat insulting.

    To make blanket statements such as “anti-competitive = immoral” without other justifications opens one up to such a statement. Perhaps you may understand that some of your moral statements seem rather absolute to me.

    As to your last point, Netflix is a service, and I thought we were discussing services. None of my points apply to private ownership of content or devices apart from such services.

    As to your earlier paranoia, Apple will never “brick” your Linux box. Do you expect them to hack your machine and disable existing functionality that it already possesses? That would be highly illegal and immoral. That would totally suck. But I would never expect that of them anymore than Google.

    Apple does not “propagate” media DRM any more than Netflix does, as neither as content owners but distributors. They have every incentive to let you use their service…under their terms. Apple’s links the *service* to a device, but lets your delivered content go free where possible. Netflix has no actual exchange of content and hence that particular aspect of data freedom doesn’t apply to them; everything is DRM and only DRM-enabled devices are allowed, yet you don’t seem to hold a grudge against them.

    Sony’s use of a rootkit to infect machines was obviously immoral and illegal. Nothing Apple has done has ever been to infect your devices or disable your use of non-Apple devices where terms and services for their use were not violated.

  160. As an aside, these appear to be some particular sticking points of yours that are relevant to our disagreements. Reiteration just to make sure:

    - Apple immorally destroys people’s devices [I assume you mean iPhones here].
    - Apple bricking people’s iDevices is morally equivalent to Sony installing rootkits on everyone’s PCs.
    - Apple immorally undermines competitors [in the given examples, by not allowing them access to the iTunes monopoly].
    - You agree that use of a service or network does come with moral constraints, *except* when the given service is a monopoly in its segment. [Apparently then you think anything goes, or something.]

    - You think management at Apple and Sony are morally bankrupt and the chances of me convincing you otherwise are near-zero. (For the record, I’d prefer not to, since correspondingly it seems very difficult and absolutely un-fun to do so. It doesn’t mean I’d rather not be arguing with someone who paints the participants in absolute moral terms without equivocation, though.]

  161. Apparently then you think anything goes, or something.

    Are you doing this deliberately?

  162. Yes. You mention it as a specific exception. I consider it specifically nonsensical.

    If I own the only (phone network/distribution service) in the world, that doesn’t mean you can choose to hack whatever you want out of my services. If you buy discrete things from me, then take and let us part ways.

  163. Or, quite simple, allow myself to be corrected. Do you think that there are restrictions to using another entity’s services and when contractually bound you must morally abide by them, regardless of that services monopoly status?

    Your statement above explicitly states that you disagree. Or do you?

    About network services, I agree [that I have no ground to argue a hacking right], except to the extent there is a monopoly position.

    And for what reason do you distinguish network services from streaming services? Do storefront services for distribution of content not count? Any other type of electronic service?

    Note that I make no moral constraints regarding any property or content you purchase or obtain through said services. I fully agree that you are within your rights to use and to take means and efforts to use and secure your use of that property.

  164. If you’re using a device that *I* designed to interface with stuff that *I* designed, you don’t get to use choose how to do so.

    Perhaps legally. Morally, if you sell me a device with an implied service such as software updates without me signing anything, and then deliberately brick my device, you’re bad. Or even worse, in the case of the iPhone — if you sell me a device with an implied service such as software updates, and I don’t do anything that you didn’t tell me to, and then you inadvertently brick my device as collateral damage when you’re deliberately bricking other devices, you’re being evil.

    Or to put it another way — if you sell me a device that is designed to entice me to trust it to store my most personal information, what the hell are you doing rooting around in it after the fact to see if I did something with it you don’t like?

  165. If I own the only (phone network/distribution service) in the world

    If you own the only xxx in the world, it is only because the government is helping you to strangle your competition. See the early history of AT&T for an example.

  166. You agree that use of a service or network does come with moral constraints, *except* when the given service is a monopoly in its segment. [Apparently then you think anything goes, or something.]

    Are you doing this deliberately?

    Yes. You mention it as a specific exception. I consider it specifically nonsensical.

    Well, then I consider you specifically obtuse. Even though, for a long time AT&T had a government granted monopoly, I would consider blue box hacking immoral (or at least not consider AT&T’s attempts to block it immoral), but would consider AT&T’s ban of the HushAPhone immoral.

    I would explain these beliefs in more depth, but that would only encourage your pseudo-thoughtfulness, and I’m not up for any more of that right now.

  167. If you don’t think I’m thoughtful, I’d hate to see how you argue with a real thoughtless person. I’m directly trying to analyze your arguments here and present reasons why I think they’re invalid. You’re merely saying that monopolies of any kind are “immoral”.

    If you own the only xxx in the world, it is only because the government is helping you to strangle your competition. See the early history of AT&T for an example.

    Perhaps so, but not necessarily. You assume by probable cause and past occurence. But you are also conflating absolute monopoly (one company, one service/product; not likely without non-economical influences) and natural monopolies (one moderately dominant with a handful of smaller competitors) and assuming they are morally equivalent. iTunes store music distribution monopoly doesn’t exist because of government intervention in helping them to strangle competition, so in any case the “moral right to monopoly service access” wouldn’t fit your exemption here.

    I don’t do anything that you didn’t tell me to, and then you inadvertently brick my device as collateral damage when you’re deliberately bricking other devices…

    I would consider this a violation of reasonable morality in terms of products and services. Forgive my ignorance, but has Apple actually bricked iPhones for no logical reason other than “whoops, our bad?” That would certainly fit…unless it is gross negligence, which even at that scale is not a sign of malicious intent.

    You seem willing to declare immorality merely by action and effect here in Apple’s case.

    if you sell me a device with an implied service such as software updates without me signing anything, and then deliberately brick my device, you’re bad.

    You seem to assume signing is the only form of agreement when true physical resources are at stake. So you’re saying if you don’t sign, I’m really giving you free reign to use the resources (software and services) with no limitations, and any termination on my part would be immoral?

    The very idea of End-Of-Lifing a product line seems to disprove that basic assumption, unless you think EOLing is immoral.

    My support for your device (if indeed we agreed that I offer to give you any – which trivially most manufacturers do) is still subject to some terms of use. I am not indiscriminantly morally required to provide support for you under every circumstance, and those circumstances (as the device is my design and the software and the *business* that compromises are my property), are subject to my choosing, even though they may be implied.

    You can own the software, and you can own the right to limited support from me under a certain set of, well, limitations. As both service and software would be created by me and you’re not actually putting any work into it, those limitations affect my time, my livelihood, and are my choice.

    If you don’t like it, then you could buy the device and leave me alone, or agree to my terms for my services. I cannot see under any other argument how any other moral expectation is possible.

    And if my software is coupled to my service and you violate your terms of use for them, then yes, I can morally reserve the right to stop you from using them. You are welcome to keep the device, and if you want to put your own software on it, then go for it. But once you violate the terms, you violate the terms of use of the entire package, and any resulting uselessness after that is your problem.

    Personally, I may go out of the way to support you in your odd esoteric endeavors. But I am under no obligation to do so, and if I feel that your expectation of support is completely invalid secondary to your endeavors, I have no moral obligation to indulge you.

    As to your last point, your personal information is your business. If you put it into my service and then abuse my service, I have the right to discontinue you, by contract, without prejudice. Morally I agree that I should have data portability to allow you to extract your data, but if you failed to do so before your use is deactivated, I have no legal and certainly no moral obligation to correct your particular misfortune by reactivating your service unless I mislead you in putting you into this useless state.

    If you’re buying my software precisely because (through the services coupled to it: email, phone, content, social networking) you find it useful, it is not my moral deficiency that if you violate those terms and lose service, you lose the usefulness. You bought it precisely for a purpose coupled to resources that you do not have unlimited moral access to. (Unless you, again, use your “moral exemption by monopoly” argument).

    There’s still room for gray area in there, of course. But there are plenty of situations in which you have do not necessarily have a moral charge to bring against me if I cut you off for some *reason.*

    Obviously as jailbreaking is now an official legal exemption, for Apple to take such action now against such endeavor would be illegal and immoral. But otherwise I would have no ground to stand on; Apple’s device, Apple’s software, and I would have knowingly violated Apple’s rules. If I want to radio-isolate myself from their software servers I may escape their notice, but otherwise they would be within their rights to cut me off from using their software and services.

    It’d be great if they didn’t, and great if I put Android on my iPhone and we part ways (I hear its possible). But I have no moral claim to other expectations, and I can’t see why disagree with this.

  168. You’re merely saying that monopolies of any kind are “immoral”.

    See, there you go again. Can you truly not distinguish between a monopoly and an action taken by a monopoly?

    But you are also conflating absolute monopoly (one company, one service/product; not likely without non-economical influences) and natural monopolies (one moderately dominant with a handful of smaller competitors) and assuming they are morally equivalent.

    Many free-market economists argue that there is no such thing as a natural monopoly, and most government monopoly grants start by assuming that there already is a natural monopoly, and so it must be regulated.

    If you don’t think I’m thoughtful, I’d hate to see how you argue with a real thoughtless person. I’m directly trying to analyze your arguments here and present reasons why I think they’re invalid.

    So I assume you think that AT&T should have been within their rights to ban the HushAPhone?

  169. We were talking about moral obligations to support hacking on products or services and our expectations of such. I think the same morality should apply whether it’s a monopoly or not.

  170. iTunes store music distribution monopoly doesn’t exist because of government intervention in helping them to strangle competition, so in any case the “moral right to monopoly service access” wouldn’t fit your exemption here.

    I beg to differ. iTunes has existed as long as a monopoly for as long as it has because Apple cleverly manipulated a concentrated group of companies that wield a lot of monopoly power through the government granted “limited” right of copyright. The mere fact that those RIAA dinosaurs are eventually going to anoint other outlets and strip Apple of its exclusive power doesn’t change the fact that iTunes the monopolist could not have ever existed without a government-granted copyright monopoly.

    I would consider this a violation of reasonable morality in terms of products and services. Forgive my ignorance, but has Apple actually bricked iPhones for no logical reason other than “whoops, our bad?”

    I believe they have. Hard to know for sure, but the backlash was sure and swift, and I doubt they’ll do it again. In any case, I’ve done embedded systems with flash update, and while you do have to think about it a bit, it’s not rocket science. So Apple’s either immoral or really, truly stupid. Take your pick.

    You seem to assume signing is the only form of agreement when true physical resources are at stake.

    No. Signing (beforehand) (should be) the only form of changing the agreement away from “I bought it, it’s mine.” And that should apply to digital goods, not just physical goods. In the case of iTunes, you probably did agree to something when you buy, but in the case of a monopoly provider, mere “acceptance” of immutable terms may not really be sufficient to form a contract.

    So you’re saying if you don’t sign, I’m really giving you free reign to use the resources (software and services) with no limitations, and any termination on my part would be immoral?

    Where did I say that? Can you comprehend the difference between HushAPhone and a blue box? I give you an example of two different behaviors at two different locations on the continuum, and instead of addressing the differences and whether you think one is immoral or not, and where the line should be, you ignore the invitation to think, and instead write some bullshit strawman argument like:

    The very idea of End-Of-Lifing a product line seems to disprove that basic assumption, unless you think EOLing is immoral.

    Whatever.

    My support for your device (if indeed we agreed that I offer to give you any – which trivially most manufacturers do) is still subject to some terms of use. I am not indiscriminantly morally required to provide support for you under every circumstance, and those circumstances (as the device is my design and the software and the *business* that compromises are my property), are subject to my choosing, even though they may be implied.

    Ahh, almost a real argument. Well, if I didn’t sign, you should probably read about an “implied warranty of fitness” before you go too far with that line of what you apparently consider to be reasoning. Hint: it’s not you, the vendor, who gets to do the implying.

    You can own the software, and you can own the right to limited support from me under a certain set of, well, limitations. As both service and software would be created by me and you’re not actually putting any work into it, those limitations affect my time, my livelihood, and are my choice.

    I have distinctly said, multiple times, that I’m not asking for extra special support, just asking not to be subject to extra special abuse. But you seem incapable of making that distinction as well.

    If you don’t like it, then you could buy the device and leave me alone, or agree to my terms for my services. I cannot see under any other argument how any other moral expectation is possible.

    If I haven’t signed, or even if I was effectively coerced into signing a non-negotiated “contract” by your ubiquity in the market, then my expectations for service are governed differently. And centuries of law, loosely based on reasonable moral expectations, back me up.

    Personally, I may go out of the way to support you in your odd esoteric endeavors. But I am under no obligation to do so, and if I feel that your expectation of support is completely invalid secondary to your endeavors, I have no moral obligation to indulge you.

    I have explicitly said, multiple times and in multiple posts, that I don’t expect indulgence, just not being kicked. But it’s apparently easier for you to keep arguing against positions that I haven’t taken than to address any of the points I’ve made.

    Obviously as jailbreaking is now an official legal exemption, for Apple to take such action now against such endeavor would be illegal and immoral.

    You have this exactly backward. To the extent the political process isn’t corrupted by undue power and money, laws slowly and eventually evolve to follow morals. Jailbreaking an iPhone is not suddenly moral because it’s now legal; it was eventually made legal because it’s always been moral.

    So I assume you think that AT&T should have been within their rights to ban the HushAPhone?

    We were talking about moral obligations to support hacking on products or services and our expectations of such. I think the same morality should apply whether it’s a monopoly or not.

    From my perspective, we were talking about contract formation, and one of the edge cases is when a monopoly is involved. In any case, way to not answer the simple yes-or-no question.

    You’re don’t appear to be stupid, which means that your obtuseness must be deliberate. Do you work for Apple?

  171. Whose question are we answering here?

    I’m not asking for extra special support, just asking not to be subject to extra special abuse.

    I completely agree. But what is extra special abuse?

    Sony rooting your PC is super special abuse.

    Bricking your iPhone for no darn good reason is extra special abuse, and I am willing to grant Apple incompetence rather than evil on that one. Incompetence seems to be common in corporate circles, and I’d feel more comfortable assuming that than jumping to assigning immorality to a corporate entity at the very top. I’d think poor management and orders lead to these abuses, rather than an order from Steve Almighty himself to “Disable iPhones, ESN range AE10000000 – AE20000000. Engage.”

    But what else? Is not being able to interface your Droid/Palm/Whatever with iTunes services extra special abuse? And are there *any* non-Apple examples of extra special abuse we could talk about? Surely there must be something, *anything* else.

    Now, let’s look at another angle.

    So you’re saying if you don’t sign, I’m really giving you free reign to use the resources (software and services) with no limitations, and any termination on my part would be immoral?

    Where did I say that?…I give you an example of two different behaviors at two different locations on the continuum, and instead of addressing the differences and whether you think one is immoral or not…

    - HushaPhone. It looks like it neither fundamentally alters the function of the device, changes how software operates, or touches the network in any way. There’s nothing wrong with using it and the court decision was obvious and trivial. It would be heinously idiotic to demand that customers can’t attach whatever plastic speaker thing they want to their device.

    But why didn’t I talk about it in my last post? Because it doesn’t actually interfere with the service or software at all, as you say, and I agree with you here. But so as you may feel satisfied that I didn’t outright ignore this example, I say so here.

    - A blue box.

    Now that’s what I’m talking about. I’d say using a device that changes or manipulates a network service that you don’t own is at the very least Not a Good Idea, but I wouldn’t call it immoral until you start intentionally trying to disrupt service for others.

    But why is it Not a Good Idea? Because I don’t think you have the moral or legal right to tinker here, or you’re on gray ground. The service is available to you for some limited set of uses, not free access given to you with abandon.

    [Regarding contracts] Ahh, almost a real argument….You should probably read about an “implied warranty of fitness” before you go too far with that line of what you apparently consider to be reasoning. Hint: it’s not you, the vendor, who gets to do the implying.

    Thanks for the compliment. I look in over my head here, I’ll keep that in mind.

    To the extent the political process isn’t corrupted by undue power and money, laws slowly and eventually evolve to follow morals. Jailbreaking an iPhone is not suddenly moral because it’s now legal; it was eventually made legal because it’s always been moral.

    It is legal, but it is not codified in law. It is a special case, one that has no guarantee of future applicability only beyond the hopefulness of the Library of Congress’s good will and some good smooth talking by the ESF.

    I agree that morally, legally, in every way, you should be able to jailbreak your phone and use it on whatever network you like. But the laws themselves haven’t changed yet.

    You’re don’t appear to be stupid, which means that your obtuseness must be deliberate. Do you work for Apple?

    I think it would be…interesting, but no. I am, however, about to fail my exams arguing here.

  172. Oh, this one puzzled me.

    The mere fact that those RIAA dinosaurs are eventually going to anoint other outlets and strip Apple of its exclusive power…

    What exclusive power?

  173. Is not being able to interface your Droid/Palm/Whatever with iTunes services extra special abuse?

    When Palm engineered their device to talk to iTunes, and Apple kept immediately rolling out patches to break it again, yes, that’s extra special abuse.

    And are there *any* non-Apple examples of extra special abuse we could talk about?

    Sure. Tons of Microsoft examples of special abuse, starting with deliberately making Windows look flaky on DR-DOS. They eventually had to pay out some money on that one. Tons of AT&T abuse — HushAPhone/CarterPhone etc. Lots of abuse and attempted abuse by “content owners,” like when Sony (back when it built stuff, before it realized the real potential for immensely profitable rent-seeking was on the content production side) got into it with Universal Studios about the legalities of VCRs, and our favorite (non-bought-and-paid-for, Jessica!) 9th circuit court ruled that Sony was liable for contributory copyright infringement, and the Supreme Court just barely overturned that 5-4. Abuse is most often handed out by monopolists or cartels, because competition keeps a lid on it if the market is really free. For a good overview of historical network abuses, you could do worse than to read Tim Wu’s “The Master Switch”, where you’ll find, among other things, that the phone system wasn’t actually a “natural monopoly,” even back then.

    It would be heinously idiotic to demand that customers can’t attach whatever plastic speaker thing they want to their device.

    And yet (here I realize that the wikipedia entry I pointed you to was woefully incomplete), that was the exact situation that existed for, I think 6 or y years. (Slightly more detail here.)

    The danger of the monopolist, who by virtue of a lack of competition can set onerous terms, is only exceeded by the danger of the regulated monopolist, who has the government’s help in enforcing those onerous terms. The FCC ruled in a way that you admit is “heinously idiotic.” But AT&T rightly recognized that the HushAPhone was the camel’s nose, which is why they fought long and hard to delay the inevitable correct decision.

    So you agree that HushAPhone is on one side of a line. Where exactly is the line?

    Now that’s what I’m talking about. I’d say using a device that changes or manipulates a network service that you don’t own is at the very least Not a Good Idea, but I wouldn’t call it immoral until you start intentionally trying to disrupt service for others.

    Fair enough. You’ve drawn the line at quite a reasonable place here. I would add that it’s also not immoral for the phone company to try to keep you from using their long distance services without paying their going rate, but it was (in my opinion) immoral for them to disallow HushAPhone, CarterPhone, or whatever other innocuous device the user wants to attach at his end of the wire.

    But why is it Not a Good Idea? Because I don’t think you have the moral or legal right to tinker here, or you’re on gray ground. The service is available to you for some limited set of uses, not free access given to you with abandon.

    Sure, but historically that was exactly Ma Bell’s reasoning when they disconnected service with no right of appeal if they found out you hooked up a CarterPhone.

    Thanks for the compliment. I look in over my head here, I’ll keep that in mind.

    Sorry about the snarkiness — I felt we were in a holding pattern, and am very glad to see we have broken free of that.

    It is legal, but it is not codified in law. It is a special case, one that has no guarantee of future applicability only beyond the hopefulness of the Library of Congress’s good will and some good smooth talking by the ESF.

    An excellent point, but I hope and think this battle’s already been won. Just like after the courts developed fair use caselaw and eventually an approximation of that made its way into the actual law, I can’t see the powers that be successfully stripping this provision any time soon. If anything, I would expect any change in the law to have the effect of harmonizing the treatment of game consoles and other devices with phones. I could be wrong, but I am optimistic about this.

    The mere fact that those RIAA dinosaurs are eventually going to anoint other outlets and strip Apple of its exclusive power…

    What exclusive power?

    So far, every electronic seller of music has to negotiate directly with all the labels. Apple managed this early with DRM, and then managed to get concessions about DRM for variable pricing and lord knows how much money. Nobody else can sell the breadth of their catalog yet.

    For example, http://www.loopinsight.com/2010/11/16/apple-has-beatles-exclusive-until-2011/

    This brings up another interesting example of morality and laws. When somebody learns a song, and it becomes part of them (as it’s a part of our culture), you can’t stop them singing it. Even in public. You might be able to charge them for singing it in public, but if you could set the price arbitrarily high, you could effectively ban them from singing it, so for music, we have a compulsory mechanical license. Copyright is supposed to be a bargain, where the author gets some limited rights, and later the public gets all the rights.

    But in computers, this doesn’t happen. Apple has all the copyrights on its software, but what does the public get in return? Not even a chance to look at the source code. And according to Apple’s “licensed not sold” strategy that has been explicitly rejected for books, CDs, DVDs, etc., if you have an ancient 68k or powerPC mac and a bunch of Apple software, and your Mac dies, it is illegal for you to run that software on an emulator.

    Personally, I think under some circumstances (like this) there needs to be either first sale for shrinkwrapped stuff, or a compulsory license for software.

  174. Personally, I think under some circumstances (like this) there needs to be either first sale for shrinkwrapped stuff, or a compulsory license for software.

    Or maybe a term for copyright that’s based on average net present value calculations for that class of work. For example, this might give us 5 years for software, 10 years for movies, 30 years for music, and 6 months for newspaper articles.

  175. It was (in my opinion) immoral for them to disallow HushAPhone, CarterPhone, or whatever other innocuous device the user wants to attach at his end of the wire.

    Agreed.

    When Palm engineered their device to talk to iTunes, and Apple kept immediately rolling out patches to break it again, yes, that’s extra special abuse.

    Undecided here. I do believe that it’s not wrong for a product to be coupled exclusively with a service. Apple pulled a jerk move, but arguably within Another World, I’d understand if Microsoft stopped me from trying to use my iPod with their Zune services, or if HTC stopped me from using My HTC with Motorola phones. The truth is I dislike the decision just because it stops me from using Palm with iTunes; but I don’t intrinsically believe I *should* be able to use Palm phones with iTunes, I’m just happy to take advantage of any opportunities that come my way.

    When somebody learns a song, and it becomes part of them (as it’s a part of our culture), you can’t stop them singing it. Even in public. You might be able to charge them for singing it in public, but if you could set the price arbitrarily high, you could effectively ban them from singing it, so for music, we have a compulsory mechanical license. Copyright is supposed to be a bargain, where the author gets some limited rights, and later the public gets all the rights.

    All agreed, copyright has become a legal monstrosity, without question.

    But, what if theoretically the music cartel/label system was abolished, and every individual band could go straight to market through vendors of their choice? In that case, would you consider it acceptable to strike a temporary exclusive deal with Amazon/Apple/Best Buy/etc, to your own liking, and later bring your music to other channels?

  176. Abuse is most often handed out by monopolists or cartels, because competition keeps a lid on it if the market is really free. For a good overview of historical network abuses, you could do worse than to read Tim Wu’s “The Master Switch”, where you’ll find, among other things, that the phone system wasn’t actually a “natural monopoly,” even back then.

    TANSTAAFM.

    (There Ain’t No Such Thing As A Free Market.)

    In the real world free markets rapidly degenerate into regulatory capture by the big players. Hence the American regulatory regime, where the emphasis is on “protecting American business”, i.e., protecting the profits of the established players who put money into congressional lobbies; and “protecting consumer choice”, e.g., the right of the consumer to choose between a number of health care providers, each of which have engineered new ways to charge high premiums and not provide health care. This is what Chomsky calls “really existing free-market theory”.

  177. Back on topic: From our reliable news sources we read

    Android, Steve Jobs, and Apple’s ’90%’ tablet share
    Xoom and gloom in Android land
    http://www.theregister.co.uk/2011/04/12/apple_and_android/

    Apple is fantastic at fostering growth in new markets. It is terrible at maintaining market share. Why? Because Apple is not a market-share leader, with very few exceptions (e.g., the digital music market). Indeed, Apple’s high-margin, premium-pricing business model demands that the company cede market share as it hoards the high end of a market.

    All of which suggests that those who deride Motorola’s early Xoom sales clearly aren’t paying attention.

    Sure, the Xoom was handicapped from the start, as betanews’ Joe Wilcox points out, by its high price and its ties to Verizon. But Android’s success isn’t about the Xoom or any other particular device.

    It’s about all of them. Lots and lots and lots of them.

    That’s how Android is winning the smartphone race. Early reviews of Android phones were much the same as early reviews of Android tablets: each reviewer basically says “Not as good as the iPhone/iPad.”

  178. John Carmack on Android vs. iOS:

    With Rage HD on iOS do you see yourself ever working on Android?
    Every six months I’d take a look at the scope of the Android, and decide if it was time to start really looking at it. At the last Quakecon I took a show of hands poll, and it was interesting to see how almost as many people there had an Android device as an iOS device. But when I asked how many peple had spent 20 bucks on a game in the Android store, there was a big difference. You’re just not making money in the Android space as you are in the iOS space.

    We made more money than people may expect on the Doom RPG stuff. It’s just fun to develop on iOS. We’d show people what we were working on and they’d go “Oh, when are you going to ship that? And I’d say ‘next month’ and they’d go “Aww, I wanna work on an iPhone title.”

    It’s hard to make a rational business decision to say I want to take resources from something else and put them on this. We did actually hire a person to be our Android guy, but it looks like he’s going to get stuck on iOS development!

  179. @Jeff Read: And? All you’ve shown is that Carmack is old-school and short-sighted. He doesn’t see making money any other way other than selling games for $20-40 a pop.

  180. @Winter “Apple is fantastic at fostering growth in new markets. It is terrible at maintaining market share. Why? Because Apple is not a market-share leader, with very few exceptions (e.g., the digital music market). Indeed, Apple’s high-margin, premium-pricing business model demands that the company cede market share as it hoards the high end of a market.”

    I really don’t know why everyone keeps saying this. They never had huge market share with the Mac (anyone know what the peak was? is it now?) And yes, they never targeted the mac for monstrous market share. But they did with the iPod. And their market share with the iPhone has gone nowhere but up. Android has gone up faster, yes. But that doesn’t mean that iOS is doomed for a niche market. What other products did Apple make where they lost market share?

    The other weird thing people keep saying is that Apple can’t compete with 1 model. Firstly, they currently sell 2 models: iPhone 4 and 3GS. Secondly, there are advantages to only having a couple models: 1) economies of scale – they can build phones more cheaply than competition 2) the 3rd party accessory market only has one/two models to target so it’s much richer 3) for devs, fewer devices to target means helps with consistently higher quality apps. There are disadvantages of course…

    Last point – Apple is selling the iPad quite cheaply. So if you are an average consumer, why would you go Android? I get it for phone – you can get android on all carriers and there are cheaper phones. But I don’t see any story for the iPad.

  181. But when I asked how many peple had spent 20 bucks on a game in the Android store, there was a big difference.

    I don’t think i’ve even seen a game for $20 in the android store, so that would be a little hard. The biggest i’ve seen is an outlier at AU$13 and lots of AU$5 and below. I’ve also found a report by Distimo(link asks for email details before allowing download), who i’ve never heard of before but does research on various app stores, which claim that the number of “free” apps is about the same between iphone and android stores.

    Also that the top grossing apps for both iphone and android are about the same individual pricing.

    Amusing counter anecdote for you. Tried googling for “most expensive game for android” and came up with a review page that called a price of $5.99 “a bit steep”.

  182. Interestingly, the top 10 ranked games in Android are all equal or more expensive than the like list in iPhone(interesting exception of “Doodle Jump”… i’m not sure what they mean by “$0.00 – $0.99″, i assume there’s a free version and a 99c version).

    Of particular interest to me is “Fruit Ninja” which is priced at $1.20 on Android but $0.99 on iPhone.

  183. What do Rovio’s Android numbers look like vs. their iOS numbers?

  184. The history of previous attempts by minority OS players to swipe share by emulation is discouraging (OS/2 is the most notorious example but not the only one).

    1) OS/2 had to contend with Microsoft’s licensing leverage over both clonemakers and IBM itself. Android is open source; Google isn’t going to punish RIM for daring to make QNX handsets.
    2) OS/2 involved sending payments to Microsoft to license the Windows code included (or required installs on machines that already had Windows). Android is open source; RIM doesn’t have to pay Google anything.
    3) The first version of OS/2 light enough for the mass market was available for less than a year before the Windows API was replaced, and IBM didn’t have access to the new code. Android is open source: RIM will always have access to the new Android code.

    Android-on-QNX is a lot more viable than Windows-on-OS/2 as a strategy to endure network effects. Delivered promptly (and who knows what the chances are for that, of course), it might well allow RIM to decline more slowly, maybe make it better able to hold on as a niche player.

  185. @Morgan: “All you’ve shown is that Carmack is old-school and short-sighted. He doesn’t see making money any other way other than selling games for $20-40 a pop.”

    I see. And how’s that free games biz working out for ya?

  186. <blockquoteThe other weird thing people keep saying is that Apple can’t compete with 1 model. Firstly, they currently sell 2 models: iPhone 4 and 3GS.

    Thats not really two models. Thats one model and its predecessor of the same model.

    Secondly, there are advantages to only having a couple models: 1) economies of scale – they can build phones more cheaply than competition

    Granted. But unless they pass that on to the consumer (which they don’t) then it’s not like that’s going to help them avert niche-ness or compete.

    2) the 3rd party accessory market only has one/two models to target so it’s much richer
    3) for devs, fewer devices to target means helps with consistently higher quality apps.

    There are disadvantages of course…

    Right, like if you don’t like the form factor or feature list of the iphone then you leave that ecosystem by necessity.
    Which is why I (personally) assert they can’t gain the market share high ground with only one model.

  187. “Thats not really two models. Thats one model and its predecessor of the same model.”

    Sure it is. Low end model and high end model.

    “Granted. But unless they pass that on to the consumer (which they don’t) then it’s not like that’s going to help them avert niche-ness or compete.”

    In the US the prices for iPhones are comprable to equivalent Android models. $49 currently for an iPhone 3GS and $199 for iPhone 4.

    “Right, like if you don’t like the form factor or feature list of the iphone then you leave that ecosystem by necessity.
    Which is why I (personally) assert they can’t gain the market share high ground with only one model.”

    I sort of agree that to gain market share, it would help to add in a model or two (bigger screen for high end model maybe). But I think the biggest thing holding back market share in the US is that the iPhone 4 is only on 2 carriers. We’ll know more when Apple’s first quarter numbers are released. Did they gain market share by adding in Verizon?

  188. @Phil

    People seem to think Apple works like that, that is why I put in that quote (I should make it stand out as a quote). I think that Apple does a good job at making lots of money. That also seems to be their goal.

    As for market share, that is a different goal, and Apple does not seem to care very much about it.

    Contrary to what you seem to suggest, a large part of potential customers does care about price and choice. So cheap and lots of choices for models will in the end win. There is not *one* model TV set, or car, or computer, or toaster that can satisfy everyone’s needs. So there will not be *one* mobile phone model that can satisfy everyone’s need.

  189. @Jeff Read: And? All you’ve shown is that Carmack is old-school and short-sighted. He doesn’t see making money any other way other than selling games for $20-40 a pop.

    I’ve yet to see an alternative business model that can sustain the development of AAA titles — the kind Carmack primarily concerns himself with.

    Selling software. It works, bitches.

  190. @Jef Read
    “Selling software. It works, bitches.”

    Only if you can lock down and control the user. If you cannot do that, you will have to get other revenue sources.

    Google does well with advertisement. So that might be an idea?

  191. I see. And how’s that free games biz working out for ya?

    I don’t know. You’d have to ask Rovio. They’re the ones making money by pushing ad-supported games.

    And, Jeff Read, as for whether their iOS or Android businesses makes more money, apparently this very timely article claims the Android version makes more money, even though it’s provided for free.

  192. When Palm engineered their device to talk to iTunes,

    by violating their USB adopter agreement? Yeah.

    Theoretically, the whole reason for the legal existence of the USB IF cartel is interoperability. It would be interesting to see that go to court — if found guilty of aiding and abetting anticompetitive activities, they could be retroactively stripped of their non-profit status, and all sorts of bad things could happen to them. I had my popcorn out back then…

  193. Google does well with advertisement. So that might be an idea?

    Only if you can lock down and control the user. Otherwise, he might install an ad blocker.

  194. @Jeff Read:

    One more point: John Carmack also seems to forget where he came from. I seem to remember a little company called id software releasing a game called “Wolfenstein 3D” as shareware through another little company called Apogee. You got 10 levels for free. I remember when Carmack and Romero were nobody teenagers nobody had ever heard of, and I remember thinking “these kids are going to be big some day.”

    So now he won’t even consider a similar approach on Android? Carmack has let fame go to his head.

  195. >Only if you can lock down and control the user. Otherwise, he might install an ad blocker.

    Ad blockers have no effect on the economics of on-line advertising. Sounds counterintuitive, I know, but the matter has been studied. Too few users deploy them to matter.

  196. “What other products did Apple make where they lost market share?”

    The Apple II, of course. At one point around 1980, Apple owned the personal computer market. Oh, there were various models of TRS-80 floating around (I acquired one about 1983), Commodore VIC-20′s, and various other toys, but for serious personal computers for doing real word-processing, spreadsheeting, etc, you spent about $5000 to get an Apple II with a couple of floppy drives, a monitor, and a printer. (Most of those cheap machines just attached to a TV!)

    Then IBM came out with the first PC in 1981, and Apple steadily lost share. The introduction of the Mac fought it off for a while, but it wasn’t long before things stabilized somewhere around 85% PC / 15% Mac.

  197. The Apple II, of course.

    Don’t forget the Apple LaserWriter. At one point, Apple owned the mass-market laser printer category as well. HP ate their lunch.

    I’m tempted to list the Newton here as well, but Apple was never really successful in creating a market for it.

  198. >> Ad blockers have no effect on the economics of on-line advertising. Sounds counterintuitive, I know, but the matter has been studied. Too few users deploy them to matter.

    Is that right? I would not have guessed that.

    Everyone I know seems to use them.

    For me, it’s not that I mind ads per se, I just want everything to run as fast as possible.

  199. Couple notes on Initial User Experience.

    Just picked up a Galaxy S, upgrading from my Pre. Was in fact planning on going iPhone as I’d got my mitts on a 3G, but the SGS was $0 and the iPhone was locked to the wrong provider. I’ll probably jailbreak the iPhone at some point and try it for a week or two but for now it’s the SGS.

    The hardware is awesome. great screen, good control layout, nice and snappy for the most part.

    Initial user experience is not nearly as nice. Palm/HP simply owns this. On the Pre you create a Palm Synergy account, associate your GMail/Facebook/etc accounts and it does its thing. Next time/phone you just log in and everything gets sync’d. iOS makes you jump through one hoop in iTunes to get your contacts sync’d. Android? Well there’s 3 different email clients on the damned thing. First one, called Email seems to only do POP/IMAP/exchange with no auto-setup. Second one is Samsung Email and is a bad clone of Synergy. Then I found the Accounts page in the Settings app, got that set up (but it forced me to enable Google Talk on my Google Apps account, which I don’t want or need) and now it syncs. New mail notification works fine and I can read new mail as it comes in but where do they go? Digging around finally finds them in the ‘Social Hub’ app. Which also provides a Twitter and Facebook interface, except the Twitter interface is just browsing to m.twitter.com. The plus side is that contact & calendar importing works fine. Contact import works better than iOS in fact (no need to use iTunes to force GMAil contacts through, supports Facebook contacts properly).

    The next hurdle was to get Samsung Kies installed in order to get media sync & firmware updates working. First you have to track it down, which Samsung doesn’t make easy. And once installed Firmware updating is still flaky.

    Not impressed in the initial experience. Flip side is once you get stuff installed & configured it’s pretty nice to use and usually feels faster than my Pre (which it damned well should, at 2x the clock speed and with a much faster GPU). UI overall is usable, but it’s the Samsung launcher, not stock Android.

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