IANAL but my humble opinion is that it is also likely incorrect!
My
understanding of the anti-competition Laws1 in the US is that they
are primarily focused against activities that are:
A:
anti-competitive
B: used in connection with a monopoly position in
order to acquire market share elsewhere
In other words: instead of
competing on fair grounds as determined by the market and product/service
offered, they compete on unfair grounds of blocking competition in some way such
as the example you use: subsidizing the costs from other sources of income and
providing the product below cost.
As far as that goes, we appear to
agree.
Where we start deviating is in what constitutes the
factor:
anti-competitive
In other words, what causes harm to the
market.
First, the license is such that it can be expected to be acquired
at zero cost. This is also true of Google's competitors, they can acquire the
code for zero cost.
Second: Since MS could easily either:
A: Use
Android as is dropping it on their own phone
or
B: Modify it to their
hearts content2 and place it on their own phone
I seriously
doubt Google's activities relative to producing Android would fall foul of
Anti-Competition Laws. Because even Google's competitors can milk Google's
efforts in Android to save their own R&D costs. You read that
right:
Google's competition can save R&D costs by milking
Android!
Nothing is stopping MS from taking Android, modifying the look and
feel so it's different and then entering the same agreements with the phone
carriers/manufacturers as Google is calling their product the:
Microsoft
phone that is Android friendly.
Of course, they'd have to word their
marketing to avoid the trademark infringement aspect. But in much less R&D
effort spent to modify Android, they'd be placed on equal footing to Google
where they could easily offer their OS "for free".
How can you honestly
claim with that as an option for Google's competition, that Google's activities
are anywhere near anti-competitive? It would cost Google more then MS in such a
situation and it's perfectly legal for MS to do that due to the license Google
choose.
1: As based on my understanding of following all such related
cases on Groklaw!
2: MS wouldn't even have to release any of the source,
it is the Apache license after all
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