Everything You Need to Know About Oracle v. Google

| Analysis

Oracle’s lawsuit against Google alleging that Android contains copyrighted code from Java has garnered a lot of attention lately. Here’s the situation so far: background on the issues, the salient discussions, what’s next, and some final commentary on how it all relates to Apple.

Background

Oracle has filed a lawsuit against Google (and recently amended it) alleging that parts of Google’s Android OS were directly copied from Java class libraries. The complaint also says that Google’s Android code contains APIs that are derivatives of copyrighted Java API packages. For a description of the original lawsuit, see the report by James Niccolai at IDG/Infoworld on 28 Oct 2010. Back in August, 2010, TMO published “Exploring Oracle’s Lawsuit Against Google,” which provides additional background, especially on the patent issues.

Internet Discussions & Analysis

Jump forward to last week. Florian Mueller, an intellectual property activist who has thoughtfully declined to declare himself an expert, recently dug into the case and looked at code. In his first analysis, published on 21 Jan 2011, he stated that “Google faces a steep challenge in its defense against Oracle…”

In that analysis, and it gets fairly technical, Oracle’s claims and part of Google’s defense are analyzed. Mr. Mueller concludes, “In my analysis I pointed out that Sun’s original source code was structured according to professional standards while the Android version of those files looked like an attempt to conceal an infringement.” During the process of analyzing the Android Code Tree, Mr. Mueller found “37 source files with a Sun Microsystems copyright header” referenced above.

An attorney who is following the case along with me wrote: “If what Mr. Mueller has found, holds up after full discovery … the threat to Android, Android apps, and Google can’t be overemphasized. The threat to Android and its apps is existential: If Oracle wins on its copyright and/or patent infringement claims, Google must pay wickedly expensive, though probably not ruinous, damages, and settle this lawsuit on Oracle’s terms.”

Immediately thereafter, Ryan Paul at ars technica pointed out some items that appear to be in Google’s defense. “It’s not clear how the zip file got included in the [Android Open Source Project] AOSP, but it’s obvious that it wasn’t intended to be there and isn’t actually used by Android in any capacity…. It’s a handful of test cases from an unrelated and publicly available Sun reference implementation that got uploaded by accident to AOSP in a zip archive supplied by a third party. It’s a tacky mistake, but it’s hardly serious or damaging. At worst, it warrants a takedown notice. It’s certainly not a smoking gun as one might assume when viewing the code out of context.”

A more energetic, if not sarcastic, defense was posted at ZDNet which argued that none of the infringing code has actually shipped on an Android device. In that article by Ed Burnette, who took pains to point out that Mr. Mueller is neither a attorney nor a developer “but plays one on TV” proceeded to point out that it was all an innocent mistake and concluded, with bold opinion: “Sadly, while sensational articles like Engadget’s* and Mueller’s will get splashed all over the web and lavished with thousands of views and hundreds of comments, the boring truth will rate no such attention.”

On 23 Jan 2011, Mr. Mueller provided a second round of detailed analysis that our attorney consultant found compelling. It’s here for you to digest, if you care to. Mueller followed that with a detailed rebuttal of Mr. Ryan Paul and Mr. Ed Burnette’s posts. Mr. Mueller wrote, “Six of those files [in the Android code base] were relicensed — apparently without permission — under the Apache license, which allows redistribution to an unlimited number of users and its integration (with or without modifications) into other open source projects (provided they are under a compatible license) or even into closed source (proprietary) products.

“Relicensing someone else’s software on open source terms is not a harmless sport. Third parties may directly or indirectly obtain those files and, in good-faith reliance upon their license headers, use and distribute such software. If the right holder never consented to the terms of that new license, this can result in liability problems. The relicensed code can pop up in any number of places and spread further, and it may not be easy to put the genie back into the bottle once it’s been published on the Internet.”

Mr. Mueller went on to prove his point by demonstrating how the infringing code made its way onto Motorola, LG, and Samsung websites, all users of Android. “I’m sure those companies didn’t intend to infringe Oracle’s rights, ” Mueller wrote. “They probably relied on the presumed legality of the Android codebase.” The upshot is that the compiled code doesn’t have to make it onto a shipping device for there to be copyright infringement.

Previously, Mr. Mueller had pointed out that Google’s patent portfolio is so weak that it likely can’t even invoke a countersuit as a possible defense.

Our attorney consultant summarizes: “Mr. Mueller shows that there is prima facie case, that is, a case presumed to be true until rebutted, of Google having reproduced, distributed, and/or modified Oracle’s proprietary Java code without Oracle’s permission to do so. [Mueller] does that by identifying Java code that Google has put into Android 2.2, Froyo, and Android 2.3, Gingerbread, code bases apparently without Oracle’s license to do so. He also showed that Google appears to have redistributed certain Java code under the Apache license apparently without Oracle’s permission to do so.”

Continuing, “However, Mr. Mueller goes further to show that certain Android OEMs, the ones discussed in his article, have most likely infringed [perhaps unknowingly] by copying and redistributing Java code under the Apache license without Oracle’s permission, and yet further shows that those OEMs most likely include unlicensed and, therefore, presumably infringing Java code in certain of their Android devices, though, as Mr. Mueller states, that can’t be established without examining at least a sample of a particular Android device at issue.”

Why Did Goggle do it?

One possibility is that Google was in a hurry to compete with Apple. It took Apple a decade to start from 4.3BSD + Mach, develop Rhapsody, fine tune Mac OS X from Cheetah to Snow Leopard, build development tools, and culminate with Cocoa touch. Perhaps Google cut some corners, in a rush, to develop Android. Perhaps there wasn’t time, in that development frenzy, for detailed, time-consuming review by IP attorneys at Google. Perhaps Eric Schmidt, under whom Java was developed at Sun, felt a sense of entitlement to the code. Perhaps Google engineers, under time pressure, forgot to attend to details and/or didn’t understand the impact of their edits — which can sometimes get quite automated. This is all speculation. We may never know the “why,” simply the determination of the court as to liability and damages, if any.

What Happens Next?

Our attorney consultant weighs in: “The parties will conduct discovery, that is, the process of gathering the facts relevant to their claims and defenses and conclude that process by the date that Judge Alsup has ordered. As I said [previously], they will then file their respective motions for summary judgment and their respective oppositions to those motions. That’s when we will get to see the strength of the parties’ case or at least as much as we can see, depending on how heavily the parties have redacted their motions. On the motions for summary judgment, Judge Alsup will dispose of that part of the case, the claims and defenses, where he deems that is no genuine dispute as to any material fact for a jury make findings of fact. Any remaining part of the case that isn’t settled will be scheduled for a jury trial.”

Lessons

Apple was not in great shape when Steve Jobs resumed control of the company in 1998. Even so, Mr. Jobs’s genius was to buy the company valuable time with the iMac, even if it did have the legacy Mac OS. The time Mr. Jobs bought the company with a Jonathan Ive designed iMac gave Apple engineers the precious time they needed to build Mac OS X and its development tools. Years later, in 2006, Apple had the tools and OS it needed to built the iPhone and iOS.

Today, companies are still being taken by surprise by the collective work and sweat-equity Apple put into Mac OS X, Cocoa, Xcode and iOS. That groundwork has enabled Apple to move forward at a much faster pace than competitors, an alarming pace, that, today, frightens both Apple’s competitors and tech writers in opposing camps.

Google, however, has hardly been fighting for its very life. The company is flush with cash. Google could have taken its time and developed a brand new mobile OS from scratch and license it any way it pleased. That might have taken five years. Partners in that OS would have full confidence in Google’s intellectual property. It appears, however, and this is just a guess, Google got anxious, overly eager to compete, didn’t invoke a lot of adult supervision via in-house attorneys, and rushed Android to market. In the end, that may be one reason why Eric Schmidt lost his job.

________

*Nilay Patel, a copyright lawyer, launched a discussion at engadget.com that Mr. Burnette didn’t agree with.

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Comments

Bosco (Brad Hutchings)

John, what’s missing from your analysis and the consulting attorney’s opinion on this is the context of how Sun was treating Java before being acquired by Oracle.

Bookmark my comment and either praise me or call me to task later… But the source code will be mostly irrelevant in this case. What will be relevant is private emails from Sun managers, likely very high up the chain, that get at their intentions for the Java community. Do not forget where Schmidt came from grin.

Sun and Oracle disagreed, especially on how Sun would get paid, but they were talking, and there is no way Sun was going to sue Google. The devil for Oracle’s case is going to be in the details of those interactions at that time.

no

@bosco,

Schmidt left Sun in 1997.  1997.  Google was founded on 1998.

What does emails have to do with Patent, License and Copyright.
Emails can’t change contract law which is what the fight is all
about.
Sun never licensed JVM the way Google is using it.
Why would Sun allow separation of language from VM
which is what Google did and Sun doesn’t even get a dime.
Remember Sun won against Microsoft.

geoduck

I wonder if that’s the idea behind Google ChromeOS. When Android gets in serious trouble they will be able to drop it and roll out CromeOS with some sort of Guarantee that it’s clean.

I know I’m not the first one to suggest this.

no

Idea behind ChromeOS is that Microsoft couldn’t
put Windows 7 into Netbooks so Google thought
they could build a minimal OS using Linux
and WebKit.  iPad changed the whole apple cart.
So now Google is stuck passing out beta hardware
with beta software on a obsolete concept.
Just look at the take on WebAppStore that they launched.
I am sure poor will jump
at the chance to not pay Microsoft Tax.
But there is always Microsoft Patents which they
can threaten any hardware manufacturer with so
get indirect tax on Google.

Nemo

Regardless of any internal communications at Google, if Google, without license to do so, reproduced, distributed, and/or modified Java code, that is copyright infringement, and Google will be liable for it.  The same is true for patent infringement, if Google, without license to do so, made a device that infringes on the claims in Oracle’s patents in Java, that is patent infringement, and Google will be liable for it.  Internal communications would only go to the issues of whether Google had intent, that is, whether Google knowingly infringed on Oracle’s IP or did so with reckless disregard for Oracle’s rights in its IP by not competently performing the kind of IP audits that are expected of major companies.

But developers and OEMs could also be in the firing lines.  If, in reliance on Android being clean with respect to Oracle’s IP, OEMs have built devices and developers have published apps, those devices and apps may also be instances of infringement that could be subject to injunctive relief and damages.  For developers and OEMs that could be catastrophic, for if Google has infringed Oracle’s IP rights in Java, then developers and OEMs will have infringed, and even if Oracle pays damages and for the appropriate licenses for Java and can petition and pay Oracle to permit Davlik, Android’s career as a free operating system will end.  So, to say the least, developers and OEMs will be paying close attention to Oracle v. Google and to all the other lawsuits alleging that Android or Android device are infringing others’ IP and may wish to direct some probing questions at Google regarding the cleanest of Android with respect to Oracle’s IP and what indemnification, if any, Google is prepared to offer them against potential liability for infringing Oracle’s IP rights in Java.

In defending Oracle’s infringement lawsuit, Google is facing two of the best lawyers, Michael A. Jacobs, Esq, and David Boies, Esq., in America or, for that matter, anywhere.  For its defense, Google had better have something more in its hands than its fingers.

ctopher

Most contracts I’ve been involved in have a “you have the rights to this” clause. I believe that the OEMs might be able to sue Google should it be found that Google did NOT have those rights.

Of course if those same OEMs just downloaded code and didn’t sign any contracts with Google, then I suppose it’s cavet downloader.

jbelkin

You’re absolutely right on - Android is all surface and clearly from a bunch of engineers who can whip together code quick but is nowhere near the quality control and DNA within of an OS company like apple ... whathisname must’ve raced back from the meetings and starting drawing on a whiteboard ... It’s got NO KEYBOARD! THere are squarish icons and you swipe ... and the result is clearly an OS that’s cribbed from a guy describing it ... and now we know, they went deeper than copying Apple’s look - they figured if they call it open source, it’s a free for all ...

Tabsi

When you spread untruths as Muller did (or as you do when you say ‘who has thoughtfully declined to declare himself an expert’) you expect affected parties to sent him a cease-and-desist letter. At least that is how it works in Germany. You cannot accuse a party of illegal conduct under German law like Muller did. Only a court can determine infringement.

skipaq

Thanks for the insightful article John. Been wondering about this and what connection it may have had with the change in CEO.

Nemo

Dear Tabsi:  There would three problems with Google pursuing Mr. Mueller for defamation for saying that it is an infringer.  The first problem is that he didn’t say that.  He said that he found certain code in places in Android and on some of its partner OEMs website that appear to be infringement, unless Google has some good defense, that is, some legal explanation that would preclude liability for infringement.  And Mr. Mueller clearly stated that we shall have wait for developments in Judge Alsup’s court and for his ruling to determine whether Google has infringed.

The second problem is that, unlike you or I, under the U.S. Supreme Court’s precedent a journalist can only be found liable for libel if the plaintiff can show malice, that is, show that more than mere negligence but that either the journalist, knowing the truth, published a lie or had reckless disregard for the truth as usually evidenced by the journalist publishing the falsehood without adhering to appropriate professional standards of research and investigation, for example, where a journalist simple fabricates a report.

The third problem is that Google would hardly sue Mr. Mueller and subject itself to his discovery, where anything discovered could almost certainly be used by Oracle in its lawsuit against Google, and which, absent a protective order, Mr. Mueller and others could publish.

So we are unlikely to see Google pursue Mr. Mueller.  However, if you want see a reasonably good, though flawed, exposition of the defenses and arguments in defense that Google is likely to consider using against Oracle’s copyright claims, see http://www.groklaw.net/article.php?story=20110122054409107.  The writer of the blog post, supra, is a vehement and, I think, biased advocate for open-source software in general and Android in particular, but her observations about the law are mostly true.  The question whether Google will have the evidence to support any of the arguments that she presents.  After Mr. Mueller’s exposition, I have little doubt that it will have to try.

Tabsi

Muller comes from Europe. US libel standards don’t apply to him. It’s simple to get an injunction from the Hamburg press chamber against an aggressive blogger. The Hamburgers don’t want nazi and commie demagogues, they cannot spread their lies and antisemitism.

wab95

John, Nemo:

Many thanks for the detailed article and follow-up discussion/explanation. On balance, it would appear that Google have their hands full at the very least, although, as you point out, we shall have to await the outcome of discovery. One wonders what impact, if any, this will have on the Android market while this proceeds.

My question (for either of you or anyone) is how likely is it, given the current distribution and market penetration of Android, that all parties will move, and quickly, to an out of court settlement? Or has Oracle declared war on Google?

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