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Epic is trying to prove that no Android smartphone in the United States is produced “open source and free.”

“That Android Open Source Project is not being used by any Android smartphone in the United States today, right?”

Lockheimer won’t go that far. He says he doesn’t know. But he also says he can’t name a single phone that only uses AOSP without also bundling GMS (Google Mobile Services) apps on top — which requires signing a MADA contract with Google.

(When it’s Google’s turn, Lockheimer might get to explain that Google’s long used contracts to prevent Android fragmentation, giving users a better chance of getting their phone updated.)

“GMS is a highly sought after set of products, and it brings OEMs to the negotiating table. If we put all GMS in market, there’s less incentive for OEMs to negotiate for GMS,” Lockheimer wrote in a 2011 email.