SKYHOOK WIRELESS, INC. vs. GOOGLE INC.
No. 13-P-1236.
Appellate Court of Massachusetts
November 6, 2014
86 Mass. App. Ct. 611 (2014)
Suffolk. May 9, 2014. Present: KANTROWITZ, COHEN, & AGNES, JJ.
In a civil action alleging that the defendant intentionally interfered with contractual relations and with advantageous business relationships that the plaintiff had with two manufacturers to purchase and install the plaintiff‘s location services software product on their mobile electronic devices, the Superior Court judge properly granted summary judgment in favor of the defendant on the ground that the plaintiff did not demonstrate that any interference was improper in motive or means, where the defendant had contracts with the same manufacturers concerning their use of the defendant‘s mobile device operating system and other service applications that gave the defendant the right to require software compatibility and location data collection functionality that the plaintiff‘s software did not meet; where the defendant never instructed that a manufacturer could not use the plaintiff‘s revised software; and where there was no evidence that the defendant‘s exercise of its contractual rights involved the use of threats, misrepresentation, or other improper means [618-622]; moreover, the judge properly granted summary judgment in favor of the defendant on the plaintiff‘s claim under
CIVIL ACTION commenced in the Superior Court Department on September 15, 2010.
The case was heard by Judith Fabricant, J., on a motion for summary judgment.
Glenn K. Vanzura, of California (Scott McConchie with him) for the plaintiff.
Jonathan M. Albano (Susan Baker Manning, of the District of Columbia, with him) for the defendant.
COHEN, J. After mobile electronic device manufacturers Motorola, Inc. (Motorola), and Samsung Electronics Co., Ltd. (Samsung), withdrew from business deals with software devel-
1. Background.3 Consistent with summary judgment standards, the facts upon which we rely are either undisputed or taken in the light most favorable to Skyhook. See Drakopoulos v. U.S. Bank Natl. Assn., 465 Mass. 775, 777 (2013).4
This case arises from the aborted plans of Motorola and Samsung, manufacturers of mobile electronic devices (including so-called “smart phones“), to license and install Skyhook‘s software product, XPS, to provide location services on their “Android” mobile devices (described below). Location services identify where the mobile device is physically positioned. Alone and in conjunction with other software applications, they allow the device user to find his or her location, to identify the location of nearby facilities, and to receive marketing information about commercial establishments in the vicinity. Location systems also collect location data from the device and return that data to the software provider for inclusion in its location database. The data then can be used to improve the accuracy of location results, as
Android is a mobile device operating system developed and maintained by Google. It is an “open source” operating system, meaning that it is publicly available and can be used without charge; however, Google owns and controls the use of the Android trademark and related trademarks, as well as the use of a group of proprietary mobile services applications known as Google Mobile Services (GMS) Apps. Google requires, by contract, that devices marketed under Android trademarks and including GMS Apps meet Google‘s compatibility standards, which are set out in detail in the Android Compatibility Definition Document (CDD) published by Google.5
In addition to a number of well-known software applications (e.g., Gmail, Google Maps, Google Search, and YouTube), GMS Apps include an application known as Network Location Provider (NLP), which helps to supply Google‘s location services to mobile devices. In part, NLP works in conjunction with two application programming interfaces (APIs) that are part of the Android operating system:6 the GPS Provider API, which determines a device‘s location using the United States government‘s Global Positioning System (GPS) satellites; and the Network Provider API, which determines location based both on triangulation from nearby cellular communications towers (cell towers) and on the device‘s detection of local wireless network access points (“Wi-Fi” networks).7,8 Google‘s Software Development
Like Google‘s NLP, Skyhook‘s XPS also determines the location of a mobile device by collecting information from GPS satellites, cell towers, and Wi-Fi networks. However, XPS operates by integrating the location data received from these three different sources. Through this approach, XPS achieves greater speed in reporting a location result. Another difference between the Google and Skyhook systems is that, unlike Skyhook‘s XPS, Google‘s NLP includes “reverse geocoding” functionality, which converts longitude and latitude coordinates to street addresses and place names.
In supplying location services software to mobile device manufacturers, both Google and Skyhook expect and require that they will be able to collect location information from the mobile devices on which the software is installed. Thus, when enabled on an Android device and subject to the user‘s consent, NLP collects “network data” for Google, i.e., information about nearby Wi-Fi networks and cell towers. XPS likewise collects such information for Skyhook. Both companies consider this retrieval of network data, and the accuracy of the data, to be essential to the location databases they maintain as part of their business models.
In April and June of 2009, respectively, Samsung and Motorola
Thereafter, unbeknownst to Google, both Motorola and Samsung entered into contracts with Skyhook. In September, 2009, Motorola entered into a licensing and distribution agreement with Skyhook by which Motorola agreed to preload XPS on its Android devices, subject to an exception for devices “where Motorola is contractually prohibited by a qualified third party.” The contract defined “qualified third party” to include “a certi-
After the execution of the Motorola-Skyhook contract, there was considerable discussion within and between these two companies as to whether XPS was Android-compatible. This discussion was prompted by the fact that XPS was configured to report “hybrid” location data — information derived not only from GPS satellites, but from the network data obtained using cell towers and Wi-Fi networks — through Google‘s GPS Provider API, which was described in Google‘s SDK as delivering satellite data alone. Both companies pondered whether XPS would violate Android compliance by giving the incorrect impression that the reported location results came from GPS satellite sources and met the high level of accuracy that users and independent application developers expected from satellite data.12
Google remained unaware of Motorola‘s contract with Skyhook until April 26, 2010, when, without Motorola‘s contractually required approval, Skyhook released a press briefing entitled “Motorola to replace Google with Skyhook,” and stating in part that “Motorola is the first Android device maker to abandon
Soon thereafter, on May 7, 2010, representatives of Google and Motorola met to discuss Motorola‘s use of XPS to provide location services. At this meeting, Google employees raised the same hybrid location reporting issue that Motorola and Skyhook had been discussing.13 A few weeks later, Google informed Motorola that, due to this reporting issue, Motorola‘s implementation of XPS would fail to meet Android compatibility requirements. Nevertheless, Google emphasized that if Motorola could implement Skyhook in a way that resolved the reporting issue, then “by all means let‘s do it.”
At the same May 7 meeting, Google identified another issue with XPS — its inability to convert longitude and latitude coordinates to street addresses and place names. Motorola could not effectively market its devices without this reverse geocoding function, and, as the issue developed over the next few weeks, it became apparent that Motorola also would need to rely on Google‘s competing product, NLP, in order to provide for reverse geocoding. Skyhook acknowledged that Motorola‘s use of NLP was the only available option, but would agree to its use only if Motorola altered NLP to block its collection of competitive location data for Google.
Motorola and Skyhook began communicating with each other about both the hybrid location reporting issue and the data collection issue. On May 28, 2010, with these issues still unresolved, Google instructed Motorola not to ship its devices with XPS. Motorola complied and removed XPS from devices being prepared for shipment in July. A few days later, on June 4, Skyhook submitted to Motorola revised software that was intended to fix
The data collection issue remained an active concern, however. Google remained steadfast that, under its contract with Motorola, Motorola was required to include the applications it licensed from Google (including NLP and other applications that collected location data) in their entirety — and without neutering their data collection function. Skyhook, for its part, insisted that its contract with Motorola gave it the right to block Google from collecting location data on Motorola devices, and that the data collection function on Google applications would have to be disabled. Faced with these conflicting demands, Motorola eventually notified Skyhook that it was terminating their agreement.
As for Samsung, in March, 2010, and entirely independent of any input from Google, Samsung began to express concerns to Skyhook about the cost of XPS. Several months later, in June, 2010, Google first discovered that Samsung had contracted with Skyhook and that Samsung already had begun shipping some devices containing XPS. Google informed Samsung of the same hybrid location reporting issue it had raised with Motorola, stating that it “cannot approve the current implementation as-is.” On July 10, Samsung notified Skyhook that it was not going to use XPS because “Google Locator was good enough in [the United States] region and [the] financial burden from Skyhook was another reason.”
On September 15, 2010, Skyhook filed the present action, claiming that Google had, with improper motive or means, intentionally interfered with its contract with Motorola and with its advantageous business relations with both Motorola and Samsung, and that those acts constituted violations of
2. Discussion. a. Standard of review. We review the grant of summary judgment de novo to determine “whether, viewing the
b. Interference claims. To establish a claim of intentional interference with contractual relations, the plaintiff must prove that (1) the plaintiff had a contract with a third party; (2) the defendant knowingly induced the third party to break that contract; (3) the defendant‘s interference, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant‘s actions. United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 812-817 (1990). Similarly, to establish a claim for interference with advantageous business relations, the plaintiff must prove that “(1) [the plaintiff] had an advantageous relationship with a third party (e.g., a present or prospective contract or employment relationship); (2) the defendant knowingly induced a breaking of the relationship; (3) the defendant‘s interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) the plaintiff was harmed by the defendant‘s actions.” Blackstone v. Cashman, 448 Mass. 255, 260 (2007). It is undisputed that Skyhook has established the first two elements of each claim. As to the third element, although Google does not concede that its actions constituted interference, we need not confront that issue because, like the motion judge, we conclude that Skyhook‘s claims founder because Skyhook cannot demonstrate on this record that any interference by Google was improper in either motive or means. We therefore need not reach the fourth element, harm to Skyhook.
In essence, Skyhook‘s arguments are as follows. As to motive, Skyhook takes the position that a jury should be allowed to decide whether Google‘s concerns about hybrid location reporting and data collection were a pretext for its true motive, which, according to Skyhook, was to “bully Skyhook out of the market.” As to means, Skyhook takes the position that Google unfairly interpreted its contracts with Motorola and Samsung in order to pressure them to abandon their deals with Skyhook. Neither point has merit.
With respect to the data collection issue, in order to ship their devices with the Android trademark and Google‘s proprietary GMS Apps, the manufacturers were contractually obliged to leave the GMS Apps fully functional. When Skyhook conditioned Motorola‘s use of the revised version of XPS on Motorola‘s removal of NLP‘s data collection function, Google was entitled,
ii. Motive. We next consider whether, on this record, it reasonably could be found that Google‘s assertion of its contractual rights was but a smokescreen for its desire to shut Skyhook out of the Android market. We conclude that no such finding would be warranted. The legitimacy of the reporting issue is illustrated by the fact that long before Google even knew that Motorola was going to use XPS, the same problem had been recognized and debated by engineers at both Skyhook and Motorola. Furthermore, Google never categorically prohibited Motorola‘s use of XPS. Google informed Motorola that it had no objection to Motorola‘s installation of XPS if it could be installed in a compatible way, and, after June 4, 2010, when Skyhook submitted revised software, Google never instructed Motorola not to use the revised XPS.
Likewise, the legitimacy of the data collection issue cannot reasonably be questioned. Skyhook, no less than Google, considered the collection of network location data to be essential for operational and business reasons. If anything, Skyhook‘s criticism of Google‘s position on data collection seems disingenuous. Unlike Google, Skyhook insisted upon being the exclusive recipient of location data. Skyhook also attempted to convince Motorola to disable the data reporting functions on GMS Apps, despite Motorola‘s valid concerns about its contractual obligations to Google.
Although the record substantiates that, upon learning of the Motorola-Skyhook contract, Google was concerned about losing customers for its own location services and the ensuing harm to its valuable location database, advancing one‘s own economic interest, by itself, is not an improper motive. Pembroke Country Club, Inc. v. Regency Sav. Bank, F.S.B., 62 Mass. App. Ct. 34, 39 (2004), citing Hunneman Real Estate Corp. v. Norwood Realty, Inc., 54 Mass. App. Ct. 416, 428-429 (2002). Even if, as Skyhook
iii. Means. “The assertion by a party of its legal rights is not ‘improper means’ for purposes of a tortious interference claim.” Pembroke Country Club, Inc., supra at 40. See Restatement (Second) of Torts § 773 (1979).17 As previously discussed, Google had the contractual right to stop shipments of Motorola and Samsung devices unless and until the reporting issue was resolved. Its exercise of that right did not constitute improper means. By the same token, Google had the contractual right to insist that its proprietary applications, including their location data collecting functions, would remain intact. Any economic pressure felt by the manufacturers was simply a product of their preexisting contractual arrangements with Google and their desire to continue marketing their devices under the Android trademarks and with proprietary Google applications. There is no evidence that Google used threats, misrepresented any facts, or used any other improper means.
b. Violation of
At the relevant time, Google‘s headquarters was in California, Motorola‘s headquarters was in Illinois, and Samsung‘s headquarters was in South Korea. All of Google‘s allegedly unfair or deceptive acts, including its communications, both physical and electronic, occurred outside the Commonwealth. Although Massachusetts would be the situs of any royalty revenue lost to Skyhook from the sale to Massachusetts consumers of XPS-enabled Motorola and Samsung Android devices, that factor alone does not suffice to bring this dispute within the ambit of
On this record, Skyhook‘s physical location in Massachusetts was of minimal import. For this reason, if no other, Google was entitled to summary judgment on Skyhook‘s
Judgment affirmed.
Notes
Bierlein, Policing the Wireless World: Access Liability in the Open Wi-Fi Era, 67 Ohio St. L.J. 1123, 1128-1129 (2006).“Wi-Fi refers to wireless local area networks, or WLANs, which connect users to the Internet by means of radio or infrared frequencies. These networks require the network operator to install a short-range radio tower, referred to as a wireless access point (‘WAP‘), which sends and receives data to and from user devices that are equipped with hardware capable of receiving the signal from the access point.
. . .
“Wi-Fi networks may be implemented by a variety of operators and in a variety of contexts. Private residences and businesses deploy wireless networks for use in the home or office. Other businesses directly provide wireless networks in public areas such as airports, coffee shops, hotels, and convention centers. Collectively, these networks create ‘hotspots’ in sub-urban areas and business districts, which provide wireless access to the public. Beyond hotspots, several municipalities currently offer or have begun to explore plans to provide public Wi-Fi access.” (Footnotes omitted.)
“GPS is the most accurate of the three, but can be slow, and does not work well in dense, populated areas, or indoors. Cellular tower triangulation is less accurate, but works well indoors and outdoors. The [W]i-[F]i method draws on a manually-compiled database of [W]i-[F]i access points in populated areas; it transmits data from those points to the software maker‘s location database, and then translates the data into latitude and longitude coordinates.”
Motorola‘s contract with Google in part provided that “[t]he license to distribute Google Applications . . . is contingent upon Motorola certifying that the Device passes the [CTS] and conforms to the [CDD].” We reject Skyhook‘s contention that this provision, requiring Motorola to give its certification as to conformity with the CDD, means that Google may not withhold its written approval of a device based on its own determination of a lack of conformity. See notes 11 & 14, infra, and accompanying text.