April 18, 2013

Hyperventilating over Google Glasses Resale Restrictions a Bit Premature


As a member of the press, I’m sometimes amazed by how certain developments take on a life of their own and how the facts or lack thereof occasionally get in the way of a “good story.” Unfortunately, we’ve witnessed in the case of the AP and CNN saying that the authorities had arrested a suspect in the Boston Marathon bombings what happens when we in the press get ahead of ourselves. The inevitable result is headlines and stories that create as much confusion as they do hype.

Such is the case that is the buzz of the Internet concerning some variation of the one used by Wired, which reads, “Google Is Forbidding Users from Reselling, Loaning Glass Eyewear.”

The Wired story, despite the headline, happens to lay out the details of why this is interesting. But what it and others like it do not do is confirm that when Google Glasses are available to the mass market that Google will reserve the right to terminate the ability to use the device. That remains to be seen.

A little context is in order here.

First, Google Glasses are not generally available. As a means of allocating the initial batch of $1,500 high tech spectacles, Google created what it calls the Google Glass Explorers program. While there is currently no room at the inn, when looking for early adopters Google asked potential buyers to go on social media under the hashtag #ifihadglassand to plead their case as to why they deserved a pair.  

Google then handpicked—what Wired and others have equated to the “velvet rope” approach used by exclusive nightclubs—who the lucky ones would be.

Where this got sticky is that under the terms and conditions of purchase, along with having to pay for the glasses by opening a Google Wallet account (which uniquely ties you to the device and the services from Google), there was this phrase which has everyone in a lather:

You may not commercially resell any Device, but you may give the Device as a gift, unless otherwise set forth in the Device Specific Addendum. Recipients of gifts may need to open and maintain a Google Wallet account in order to receive support from Google. These Terms will also apply to any gift recipient.

YIKES? Maybe!

As I noted in an article back on in March, “Supreme Court Rules Copyrighted Goods Can be Resold in U.S.-eBay and Others Rejoice,” the U.S. Supreme Court in John Wiley & Sons v. Supap Kirtsaen, ruled that the “first sale” doctrine applies to copyrighted work. People in the tech industry and their legal folks believe this will also be applicable to non-printed products and services. In simple terms, it means that once I buy it from you, I can do what I wish. 

A disclaimer is in order. I’m not a lawyer and do not play one on the Internet. That said, while some are saying that the Google terms and conditions are a matter of contract law and that this is a case of “buyer beware,” the Supreme Court ruling could be relevant. For example, at some point if Google decides to persist with the posture it has taken with the Explorer Edition restrictions, somebody who resold their Google Glasses might end up testing the validity of that contract citing the Supreme Court’s new ruling as precedent that what happened to the glasses after they were purchased should not be Google’s business – other than enticing the new users to take full advantage of everything Google services and support has to offer.

Let’s leave speculation about legal remedies aside and return to the matter of immediate concern. Given Google’s silence on its plans as when that “velvet rope” is dropped, and anyone with $1,500 can become a hopefully proud owner, it does seems premature to say that this is its policy. 

Indeed, there is fault to be shared between the media and Google. The press, barring a clarification from Google as to its intentions, turned what may be a mole hill into a mountain. But the usually public relations adept Google should have anticipated all of this. It’s surprising it wasn’t out with a statement concerning why they were doing what they are in this instance, and how they will proceed once the glasses go prime time.

They committed a sin that one learns in Public Relations 101. They lost control of the story. They should not be silent now and should not have let the news of their policies come from a would-be owner revealing they had halted a sale of the glasses on eBay for fear of Google’s wrath.

Google could have said that most of this first batch of glasses were in the hands of serious developers, and that as such they wanted to insure they maximized the involvement of this community they developed the terms and conditions to dissuade the lucky few from cashing in on their newfound treasure, rather than use them to develop neat stuff. 

Clearly, Google missed an opportunity by not taking this route.  

The other problematic piece of all of this is the speculation that the control Google is using over its limited launch is a harbinger of things to come in the industry. One would think that the last thing Google wants – based on the hot water it’s already in with the European Commission on antitrust issues surrounding search and now possibly market manipulation based on its dominance of Android – is that the company would become the poster child of anti-competitive behavior by regulators around the world.

In fact, antitrust scrutiny and potential litigation should be the last thing any company wants. After all, the industry is already suffering under the multibillion-dollar boat anchor resulting from intellectual property (IP) wars.

In short, this appears to be a blunder on the part of the company, and not a trend. Of course everyone is entitled to their opinion, so speculation about trends is fair game, and as the headlines have proven, titillation sells. It just seems to this observer that to conclude that all Google Glasses sold in the future will for all practical purposes be the property of Google which they will let us rent, is premature.  

What I am looking forward to is what Google finally has to say about all of this. Whatever it is, the firm would be wise to follow the advice that has now become part of American culture: “If you see something, say something.” You don’t need a pair of Google Glasses to get this picture. 




Edited by Braden Becker




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