I’m Not Liking Google Much These Days

| Editorial

When a company becomes very wealthy, it has two choices. Use the money for mischief or use it for something worthwhile and earn our respect. I’m not liking the direction of Google these days.

It seems like there’s not much good news about Google anymore. In previous times, Google was just a big search company that offered a variety of free services. In time, we learned that Google has been data mining our e-mail in order to give us beter search results, more targeted advertising, and, of course, earn even more money.

I don’t know about you, but being a fan of Apple, I’ve grown accustomed to feeling good about companies I do business with. I like companies that earn my business with products I like, then treat me well as a customer. I’m not feeling that about Google these days.

1. Google+ as National Identity Service. For those who haven’t noticed yet, Google+ has not merely positioned itself as a more secure version of Facebook. We found that out when Eric Schmidt, Google’s Executive Chairman, over the weekend, revealed that Google+ is fundamentally designed as a national identity service — so that Google can better profit from us by offering financial services. To read more about this, I recommend these articles.

I can see how the U.S. government may be reluctant to roll out a national identity program. There has been huge resistance to that from many circles. Leveraging off the public sector may seem like a good idea, but I’m not in the mood to have a company seeking to acquire even greater wealth based on knowing a whole lot more about me. According to the author of the BusinessWeek article above, “If people want to remain anonymous, he [Schmidt] said, then they shouldn’t use Google+.” Sounds good to me.

I think what’s driving modern advertising is that it’s just too hard to insert your ideas and products into people’s lives. There’s too much going on. When people do have some free time, they tend to insulate themselves from intrusions. A good example of this is the fact that we spend far too much time skipping over TV commercials on the DVR, throwing away junk mail, and suppressing pop-up ads in our browser. We have our own agenda in life. We should.

The only way to get around this annoying human behavior is to more fundamentally connect to customers, insert your company irretrievably into their lives, and prevent them from ignoring you. However, the intrusion must be subtle, remain in the guise of cool technology and not appear too creepy. Hence, Google+.

Eric Schmidt

2. Oracle vs. Google  

From what I’ve been able to gather, combined with some input from an attorney who’s been following the case along with me, Google is in big trouble in the lawsuit brought by Oracle, based on the infringement of Java as used in Android. It seems a Google engineer was tasked to find alternatives to Java, for Android, and concluded, “ they all suck.” The attorney wrote extensively to me on this, and I’ve excerpted below.

  After the incriminating email from a Google software engineer to Andy Rubin — stating that, because there were no viable alternatives to Java, Google needed to either license Java or proceed without a license and be prepared to defend that act — was widely reported and disseminated,

Google in a desperate effort to prevent that email and any version of it from being admitted into evidence tried to claim that the email was a privileged communication under either the attorney-client or work-product privilege.

The magistrate judge hearing the matter was unpersuaded by Google’s arguments. She noted that Google’s claim of privilege failed to meet the requirement that the communication be a communication to a legal representative … made to the legal representative for the purpose of receiving legal representation….

The only reason that Google tried so desperately to claw back the incriminating email, which we all know the contents of, was to keep it out evidence so that Oracle couldn’t use it for any evidentiary purpose or for any purpose in discovery, because if that email enters the record, Oracle will use it not only to eviscerate Google’s deponents, including Larry Page, on deposition but will also use it with devastating effect at trial. With such clear evidence of Google’s intent to infringe, both Judge Alsup and/or the jury will [no longer have] any doubts.”

The conclusion drawn from this turn of events is that: “It is interesting that … the press in general and the tech press in particular seem not to notice or fully appreciate the impending crisis for Google’s Android OS, for if Oracle’s proves its infringement claims on any of its broad patents in Java that are in suit, Google could be facing an injunction covering the entire U.S. that could ban the sales and/or distribution of all versions of Android, at least the sequestration of all devices running Android, and a damage award for past infringement in Oracle’s favor that could range in the billions of dollars.”

Licensing Java would have been a whole lot cheaper. Perhaps a few hundeed million for the purpose Google hand in mind. The funny thing is, the wealthier a company gets, the more miserly it becomes. And, of course, power becomes an end in itself.

Observations

No one knows for sure how this case will turn out. Large, powerful corporations often find ingenious ways to sidestep legal disasters. Whether Google can dodge this bullet is really irrelevant, however, in the grand scheme of things.

What’s more interesting to me is that a wealthy, powerful corporation with very smart engineers can now figure out new and ingenious ways of throwing its weight around, bending our lives (and other corporations) to its will, and refusing to allow us to go our own way in life. In the name of progress and prosperity, with sufficient funds, any goal can be achieved. The question I have is, how should we  respond to that? How can we develop the proper ways of thinking about how we do respond — if we choose to at all?

Of course, I’m not a technical Luddite. I have embraced just about every technical advancement brought along, especially those by Apple. My wife has an iPad. I have an iPad. I’m slowly converting my paper magazine subscriptions to the iPad. I love Twitter. I do some electronic banking. I do things with my iPhone that amaze our friends.

But as you’ll see from the Eric Schmidt video, there is no longer any component of consideration for the human and spiritual element of our lives when business and money are the sole value. We are simply devices on the Internet to be manipulated, exploited, and bent to the will of very large corporations. The one thing that Steve Jobs taught us, in spades, is that the human touch, that personal sensibility of design and excellence, and connection to the human spirit is essential. That’s how Apple earned my respect. This is why Apple is a great corporation and Google is simply becoming the juvenile delinquent of the Internet.

Somewhere along the line, individuals have to draw a line in the sand. They need to say, this is how I’m going to live my life, build my relationships, preserve my privacy, leverage essential technology, maintain my independence and dignity, and reach out to actually help others. I wish I could feel that Google, for all its mightiness, were making the world a beter place to be in. That’s not what I’m seeing from my own technical and spiritual viewpoint.

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Comments

davebarnes

John Martellaro, meet Brian S. Hall.
http://brianshall.com/content/google-are-pussies

Lancashire-Witch

Some of us have not liked Google for a long time - as expressed on TMO Comments during the “Chinese incident”, for example.

I wonder if “Do No Evil” will go down in history as one of the greatest shams of all time.

Bosco (Brad Hutchings)

Your attorney friend is smoking too many Cheetohs. Google and Oracle will settle for south of $300M, which is within a factor of 3 of a fair license price for Java. The judge is not going to let Oracle clock-block the Android OS, especially since Oracle has been an unmitigated disaster in actually monetizing Java since acquiring it with Sun. Android is about the only thing that’s added (let alone preserved) value of the technology, with Oracle pissing off the more established Java community at every turn.

As for Google in general, they make, in my estimation, a better smartphone ecosystem than Apple. There is more choice and more reach. There is more room for others to contribute, and thus, more opportunity for incremental innovation. The result for me is that an iPhone feels like a toy compared to my Android phone (still a Nexus One).

John Martellaro

davebarnes: thanks for the link to Brian Hall’s article.  I hadn’t seen that. His list of destroyed businesses is interesting.

toddwachob

I have to agree with John about Google. In fact, once the new iPhone comes out, I’m ditching my Android phone and also am moving my personal domain email from Google Apps to somewhere else.

But I’m intrigued by the the information the Ghostery plug-in gives me for this very page. 23 individual tracking bugs on this very page, including Google Adsense and Google Analytics? Pop-up links to ads in the column text that I have to mouse carefully around to avoid?

Looks like Google+ (and Facebook) aren’t the only websites I need to watch out for.

skipaq

Welcome to the “Watch out for evil” club. I made a conscious decision many years ago not to use anything Google unless their is no other choice. I have never liked the business model that requires eyeballs. No, not even in the entertainment (TV especially) world. When I finally decided to get my first iphone (version 4) over any Android offering; the biggest factor was Google’s prying practices.

I have a gmail account that is only used for online registration. Nearly all my spam goes there to die. I never log into it and I absolutely would not put my address book on their servers.

John, you are absolutely right about Google’s theft of Oracle’s property. Even if they never pay a penny for the infringement, their conduct here is revolting.

Ted Wise

Google and Oracle will settle for south of $300M, which is within a factor of 3 of a fair license price for Java.

I agree they’ll settle, but I have a feeling it’ll be closer to $750 million.

Honestly, it’ll be a good day for Android when they do because I’m betting all of the Java patent portfolio will be licensed to Android in the process. And, of course, there will be the benefit to both projects when code sharing can occur between Android’s Dalvik and it’s libraries and Java as a whole.

Terrin

I agree with John. As soon as iOS 5 comes out, I will ditch Gmail for Apple’s Cloud Services. I have always apprecaited Apple’s policy of not cluttering its products up with junk advertising. I liked Apple’s iTools.

As Bosco suggests, I am sure the matter between Google and Oracle will be settled in a manner that will not kill Android. However, I doubt Bosco is correct about the amount, which I think will be higher. Oracle isn’t required to be successful at monetizing a product for it to be protected from infringement. Further, the email proves intentional infringement on Google’s part, which likely means treble damages. If it goes to trial, the jury can decide damages, and historically juries are generous.

Ultimately, we will never know the true terms of a settlement, which likely will involve a one time payment, and a recurring royalty. From the Judge’s language though, we can tell he think’s Google is in trouble. This is the same judge who ruled against Pystar.

John Dingler

Hi John,
You must know that it was true before Cheney’s US Fascist Act, that the fed. gov. was prohibited from spying domestically. During this pre-USFA period, however, the fed. gov. could get around the vexing prohibition simply by relying on non-governmental market forces to supply it with citizen data. We know there is a wealth of primary personal data in a nationwide network of databases. The primary data is expanded upon by the use of analytics which makes relationships and assumptions about similar data, thus expanding knowledge of any particular citizen. This is astoundingly huge, hence of immense value to the acquisitive market and to the menacing, secretish Federal National Security State.

Just some of the most well known domestic spy agencies who do this are ChoicePoint, Equifax, Trans Union, Lixis Nexis, AcXiom, but also all larger (e.g., Google, AT&T) and smaller companies (e.g., Smart&Final;, Harbor Freight). They all know that the most valuable asset any company has is customer data.

Because the public generally becomes outraged when any gov. plan to spy on citizens surfaces, even though the USFA makes it now much easier and is horribly legal, the political wonks do not publicize this multi-headed vacuuming force of commerce and gov.

So, it’s not just Google who should be mistrusted, but all companies whom you touch with your checks, credit cards, and invoices. The only way to keep your identity from being subsumed into the database is to buy with cash.

I believe there was an initiative to prohibit cash transactions.

quentin

Your attorney friend is smoking too many Cheetohs. Google and Oracle will settle for south of $300M, which is within a factor of 3 of a fair license price for Java. The judge is not going to let Oracle clock-block the Android OS, especially since Oracle has been an unmitigated disaster in actually monetizing Java since acquiring it with Sun. Android is about the only thing that?s added (let alone preserved) value of the technology, with Oracle pissing off the more established Java community at every turn.

For the sake of upholding legal precedent, the judge better not factor in what Oracle has done with Java since acquiring Sun, the simple fact remains, Google knowingly infringed. The direction Oracle has taken Java has absolutely zero bearing on the legality of Google’s actions.

As for Google in general, they make, in my estimation, a better smartphone ecosystem than Apple. There is more choice and more reach. There is more room for others to contribute, and thus, more opportunity for incremental innovation. The result for me is that an iPhone feels like a toy compared to my Android phone (still a Nexus One).

This probably all depends on what you prefer choice of. Devices? Apps? Integration? Yes, there are more Android devices (90% of them are garbage bargain basement phones). Apple still has more, and better, apps and a better developer and app ecosystem in general. I’ve developed for both iOS and Android. iOS wins that battle, hands down.

As for the iPhone feeling like a toy, I’ve yet to pick up an Android phone that didn’t feel cheap in comparison to the design and build quality of the iPhone hardware. Anecdotal evidence and all that.

quentin

But I?m intrigued by the the information the Ghostery plug-in gives me for this very page. 23 individual tracking bugs on this very page, including Google Adsense and Google Analytics? Pop-up links to ads in the column text that I have to mouse carefully around to avoid?

Looks like Google+ (and Facebook) aren?t the only websites I need to watch out for.

You may just want to quit using the internet. Any site with a “Like” button, “+1” button, or advertising of any sort will be tracking you. And that covers a pretty large swath of the web. Necessary evil, I suppose. Advertising keeps things I love free, and if I’m going to see ads, I guess I’d prefer them be ads that are relevant to my interests. That simply wouldn’t be possible without some tracking.

Dean Lewis

I would love to move to Apple’s cloud services, but that still won’t cover everything. Unfortunately iCloud has no social element to it, so my choices on that front, for the most part, are Google+ and Facebook. currently, I have to use both, because most of my family and friends will never move from Facebook, and Google+ has just been an entirely invigorating experience overall since I’m able to find and follow and engage with interesting people a lot easier.

The masses speak, and the rest of us get to give up a little more of our privacy or we can go crawl in a cave in the wilderness—because that is the only way to get away from it all…maybe.

Lee Dronick

so my choices on that front, for the most part, are Google+ and Facebook. currently, I have to use both, because most of my family and friends will never move from Facebook, and Google+ has just been an entirely invigorating experience overall since I?m able to find and follow and engage with interesting people a lot easier.

From a tracking security aspect we could have a user account just for Facebook and Google+. Use a different account for other web surfing.

I use the Cookies app to manage tracking cookies, cookies, and databases. You have certain cookies whitelisted and periodically dump the others.

geoduck

I find it amazing that so may people don’t understand how evil Google has become. At my last job I ran a running battle with Sales and Accounting that kept wanting to put confidential company data (often with private personal data) on GoogleDocs and GoogleCalendar. I’d rant and rant but convenience kept winning out. Finally we got the Controller to mandate that Accounting could not use them any longer. Sales was a lost cause though. They even demanded that we install the Chrome Browser on our Terminal Servers because it worked better with GoogleDocs. We refused. A number of the sales staff then started using their own personal laptops with Chrome. We could not get the head of sales to crack down on them.

That was about when I left the company.

Nemo

These are urgent, if not desperate, days for Google and its legal team in Oracle v. Google.  The world learned in the hearing, where Judge Alsup set the ground rules for Oracle’s deposition of Larry Page, of the Lindholm email to Andy Rubin, referred to supra, which established that Google intentionally used Java without then Sun’s permission, knowing that it might have to subsequently defend that act. 

Well, the day for that defense has arrived, but the Lindholm email has made it a day of the most urgent consequence Google and its Android OS, for, if Oracle can prove its infringement case on any of the broad Java patents that are in suit and which have survive the re-examination, Judge Alsup has warned Google in open court that the Lindholm email will have profound consequences for an injunction.  Judge Alsup also strongly hinted to Google that it might want to settle the case before it goes to trial, because, paraphrasing Judge Alsup, the Lindholm email will probably be big for Oracle at trial.

Now, notwithstanding Bosoc’s sage legal advice, the court’s remedies, if Oracle proves infringement must go beyond merely awarding monetary damages.  In a case of ongoing infringement or where ongoing infringement is likely and especially where, as here, intent to infringe has been shown, the law obliges Judge Alsup not merely to impose a damage award for past infringement that fairly values the infringed patent and treble those damages, including Oracle’s legal fees, he must also impose an injunction that will prevent any future infringement.  So beyond damages, which I, in dispute with my Brother Bosco, suspect will be far more than $300 million, Alsup’s order of injunction must halt the distribution and use of all infringing versions of Android, and that means an injunction barring the distribution, licensing, and use of Android and the sequestration of all Android devices in stores and in inventory.

Does that mean that Google and Oracle won’t settle?  No, quite to the contrary, such an injunction ensures a settlement, but it will be a settlement with the Sword of Damocles, in the form of Alsup’s injunction, hanging over Google’s head.  Google will have to settle with Oracle, that is, with Larry Ellison on Ellison’s terms.  Now, Oracle doesn’t want to destroy Android, because that would be killing the golden goose that lays the golden eggs, but Oracle, with the whip hand of an injunction that can shut down Android, will dictate terms that will extract as much value from Android as possible without making Android unviable.

Also, Judge Alsup does not want to be placed in the position of having to issue an injunction that could shut down Android, a major industry and mobile competitor, in the U.S.  Already, Judge Alsup sees where this might head, if Oracle proves infringement, and is probably putting pressure on the parties, but especially Google, to settle this case.  But if the parties can’t settle and if Oracle proves infringement either at trial or on motion for summary judgment, to go along with the already established proof of intent to infringe, Alsup will have little choice but to issue an injunction that prevents any further infringement of Java by Android.

But we have a way to go before we reach an injunction.  Oracle must prove the case in chief, that is, it must prove that Google infringed on one or more of its broad patents in Java.  But the Lindholm email takes Oracle so far down the road of obtaining Alsup’s injunction against Android that Google can feel the point of Larry Ellison’s samurai sword at its throat.

RonMacGuy

So Nemo, can Apple legally “financially motivate” Oracle not to settle with google? Might be money well spent by Apple!!

grin

Nemo

RonMacGuy:  No, Apple cannot collude with Oracle to prevent settlement with Google.  That is at least a violation of anti-trust law.  And there would also probably be unfair competition, tortious interference, and perhaps even patent misuse claims.  And, of course, the government antitrust regulators would get involved and sue Apple and Oracle for colluding to restrain competition. 

However, if Oracle was willing to sell or exclusively license rights in Java to Apple, Apple could at least make sure Android pays the full market value of Java’s patents both for past and future use, but Oracle is unlikely to sell Java to Apple, and Ellison, if Oracle prevails, will make sure Google fully pays for Java without any urging from Apple.

Max

imo android is the toy. gives you lots of functionalities, mostly imperfect, and mostly a common userwouldn’t use in real life.

htc desire z user here.

Bosco (Brad Hutchings)

@Max: I take it you don’t use voice activated navigation (“Navigate to Buca di Beppo in Tustin”) or have one of the SMS readers installed so you can safely hear text messages while driving. When the iPhone has these, I’ll consider it less toy, more useful tool.

Bosco (Brad Hutchings)

@Nemo: Here’s what happens to ridiculous jury awards that Oracle gets. The federal judges and federal appellate judges are increasingly there to keep the awards from getting out of proportion.

Nemo

Bosco:  Sometimes juries can get carried away when they see theft of IP, and their desire to punish the malefactor will often lead them to go too far, as in a case like the instant Oracle v. Google, where there is clear evidence of intent to infringe.  As you say, judges are there, inter alia, to prevent that.  But my Brother Jacobs will not seek more on judgment than he can sustain against a motion for remittitur and on appeal.  In addition, as we have seen, Judge Alsup won’t allow any claim for damages that does not meet the Daubert test.  So I am confident that Mr. Jacobs can sustain whatever damage award that Judge Alsup permits the jury to consider.  And, of course, here there is the aggravating circumstance of willful intent to infringe, which, if Oracle proves infringement, will put Google at the top of the range of whatever damages Judge Alsup permits.

And then there is the injunction.  Judge Alsup will fashion that order, if Oracle prevails, and he knows his business, as evidenced by the record of the U.S. 9th Circuit Court of Appeals affirming his judgments.

Jamie

I think you nailed it. I personally don’t have a problem with a company like Google in principle, it’s all about their execution. They have tried to cut so many corners, been so disingenuous, downright, dare I say it, creepy. I have no interest in being parasitically profited from either (great links, thanks for those. I spread them around all over today).

I actually dropped them back when street view first made its debut. Again, it was about execution. Who knew the Googlemobiles were out in force? They have handled so much so very badly. I use Feedburner, Analytics is built into my site by my host, and I do use Reader as it is required for things like Reader on iOS (if anyone has an alternative, I’d love to know about it), but otherwise, I’m Google-free, I don’t log in except to update those services when required.

I will court their competition, as I actually believe in the concept. Would great to see them restrained by the market’s genuine distaste for their abhorrent business practices rather than by jurisprudence, but whatever gets the job done, I suppose. . . .

daemon

John, Bosco, Nemo,

Google took an open source platform and used it extensively in Android. That is the fact. It’s so intergral to Android that when the founders asked a trusted engineer to find a replacement for it when Oracle started making threats to sure over what they saw as patent infringement on their new IP they were told they had to license it.

What’s utter batshit stupid in all this is that people are acting like Google is bad and evil for using an open source platform in their product. It was open source, that’s what you do with open source! What you don’t do is start sueing the people who are using your open source platform years after they’re committed to it for patent infringement.

daemon

Oh and so you don’t like google+?  You don’t like national id services? Okay, but were you aware that macobserver uses a national id device too? Why are you okay with that John?

daemon

I want to make an example to illustrate just how stupid this Java lawsuit is.

Let’s say Disney announces that Disney World will be free admission for everyone forever now. People take advantage of this. They start going all the time, the Florida school board even decides to allow extensive fields trips to Disney World and this goes on for a few years.  Then Disney announces they’re sueing the state of Florida for extensive trespassing and will be seeking damages for all past infringements, plus treble for wilful infringement.

Nemo

John:  Thanks for this vitally important article.  See, infra.  Google wants, with the Government’s assistance and blessing, to become the primary, if not sole, entity that provides our national online identities, something which Americans have not been willing to let their Government do.  And why is the Government promoting this scheme to have private business instead of the Government provide our national identities?  It is because the Fourth Amendment and other provisions of the U.S. Constitution control, regulate, and restrict the Government’s trespass upon a citizen’s privacy and because we, the people, have rejected Government’s attempt to create a national id card, while the U.S. Constitution does not regulate or restrict private business in violating a person’s privacy, and because, we, the people, seem not object—perhaps because we don’t recognize the danger—as private companies, such as Google and Facebook, insidiously become our national online id card.  So, since private business is not restricted by the U.S. Constitution, government can simply either purchase our private and/or personal information from private businesses, as can advertisers and marketers, or, if necessary, subpoena the records of private business that contain our personal information. 

This is shocking stuff.  I’ve said it before, and I will say it again:  Today’s Big Brother has exceeded the scope of even George Orwell’s imagination.  Big Brother is private businesses, such as Google and Facebook, which, once they have achieved a dominant and controlling position in our online lives, will, I am certain, too easily morph into the fascist governmental Big Brother that Orwell warned of and so feared.

And why is Google and its ilk running roughshod over our right to privacy and the other American values enshrined in the U.S. Constitution and the other documents of the American manifesto?  For no reason other than that it will very profitable to do so.

I knew that “Don’t be evil” thing would come to no good.

http://www.bonnienadri.com/2011/08/29/the-nstic-you-and-me-and-google/ http://www.bonnienadri.com/2011/08/29/the-nstic-you-and-me-and-google/

daemon

Nemo, I’m more worried about the advertising company that the Macobserver is using than I am about Google. At least I can see all the information Google had on me, can’t do that with the Macobserver’s advertising partners, or apple.

Nemo

And Dear daemon:  Let me correct you as to certain errors of fact in your posts, supra.  First, the version of Java that Google used in Android and the use of Java in Android is not open-source and has never been open-source.  Yes, there is an open-source version of Java, but, recognizing the potential for profit on mobile devices, when it came to mobile devices, Sun, Oracle’s predecessor in interest, specifically and expressly restricted and did not open-source license the version of Java that is suitable for mobile devices.  The clue that might have tipped you to this fact is that Google’s lawyers, who are among the best, haven’t even tried to raise open-source licensing on a motion to dismiss or on an early summary judgment motion.  The other clue that might have tipped you off is the Lindholm email, where Google clearly recognizes and acknowledges that it needs to license its use of Java in Android.  So on the point that Java, as used in Android, is open-source, you are flat wrong.

Before we leave the topic of open-source and Google, I must mention that many influential member of the open-source community, Florian Mueller among them, are furious with Google for its repeated and blatant disregard of Linux’s, which is the core of Android, GPL licensing requirements. It began with Google allegedly breaching the copyright and trademark requirements of the GPL by taking the proper trademarks off developer’s code and sticking it all under an Apache license, which it allegedly didn’t have the right to do under the GPL.  However the greater breach of the GPL is that Google has apparently refused to timely publish Android’s source code for the latest version of Android, as the GPL requires, to all other GPL licensees.  That, of course, if true, voids the GPL license for Android, so that Android is infringing on Linux.  And Linux is core of Android’s kernel, so that if Linux is infringed, Android has no kernel, which kind of necessary for an operating system. 

Google is apparently relying on the fact that neither the FSF or the small developers who contributed to Linux have the means to sue it for infringement and that none of the powerful and wealthy parties, who contributed to Linux, such as IBM, have sufficient interests to make an expensive GPL infringement suit against Google over Linux worthwhile.  So much for not being evil and for Google’s devotion to opensource.

As regards TMO’s national id service, could you elaborate on that, because I am not aware that I am using a national online id service, when I use TMO?

As regard your Disney example, read my comments, supra, on why the version of Java used in Android is not opensource.  I’ve read the several licenses on Java—yes, there is more than one—and as regards the version of Java and the use of Java in Android, I concur with the opinion of nearly every expert to consider this issue—which is apparently shared by Google’s counsel, who haven’t seriously argued a licensing defense—that the version of Java and the use of Java in Android is not licensed as open-source software, but is private and proprietary to Oracle and, thus, requires a license from Oracle.  Sergey Brin and Larry Page’s efforts, as evidenced by the Lindholm email, to find an alternative to Java for Android strongly proves that they knew this.

daemon

@Nemo Android uses the open source java platform. The close source platform java for mobile devices is significantly different in implantation and design. The platforms are wildly different, mostly because java for mobile devices was never meant to use anything but a T-9 input device.

And seriously, you haven’t noticed the advertising cookies Macobserver drops on your computer?

Nemo

Dear daemon:  TMO, based on what my enhance browser reports to me, TMO uses many advertising services, Google being among them.  As regards my privacy, I am concerned about them all, but I am especially concerned about Google, because of its egregious misconduct in utterly disregarding privacy whenever and wherever privacy interferes with Google’s ability to make a buck; because of its wealth and power, especially in the halls of Congress and in the White House; and because of the pervasiveness on the Internet of its services in most people’s online lives.

Having read Apple’s privacy policy and the protections for privacy in it and having seen how publisher and certain other developers have howled about the protection of privacy in Apple’s privacy policy, as evidenced most recently by the Financial Times withdrawing from the App Store, I am less concerned about Apple and, indeed, find Apple’s services at least acceptable with respect to privacy.

Nemo

Dear daemon:  If the Lindholm email, the near unanimity of all independent expert opinion, and the fact that even Google’s lawyers have not seriously presented a licensing defense, don’t convince you that Google has no open-source licensing defense, nothing, no matter how true and reasonable, can.  Unfortunately for Google, neither Judge Alsup or, if the case goes trial, the jury is going to disregard the facts, reason, and law, as you have here.

daemon

especially concerned about Google, because of its egregious misconduct in utterly disregarding privacy whenever and wherever privacy interferes with Google?s ability to make a buck;

And I still think you’re casting Google’s actions in a negative tone to drive your over-all agenda that everything Google does is bad, and that they need to be destoryed, all because Steve Jobs got pissed about Android.

certain other developers have howled about the protection of privacy in Apple?s privacy policy

There is no protection of privacy in Apple’s privacy policy. Apple can and will do whatever they want with the personal information they have about you. It even says that. Where as Google’s privacy policy clearly states that all the information they have about you is yours, not theirs, and that you have the authority to allow Google to use it or not use it at your discretion.

RonMacGuy

As always, thank you Nemo for your analyses of these lawsuits. I find them very informative and not nearly as emotionally-biased as some of the “let’s play lawyer today” assessments.

Nemo

And daemon:  TMO might set cookies, beacons, and such like on your browser, but neither TMO or any other website sets such crap on my browser, at least not for any longer and more than is necessary to use the particular webpage on my screen.  I am particularly delighted that I catch and reject everything from Google and Facebook, except as is temporarily necessary to use a webpage and then it is gone.

daemon

If the Lindholm email, the near unanimity of all independent expert opinion, and the fact that even Google?s lawyers have not seriously presented a licensing defense, don?t convince you that Google has no open-source licensing defense, nothing, no matter how true and reasonable, can.

The Lindholm email was sent after Oracle started threatening to sue. It was a frank evaluation of the prospects of changing the core application engine of Android from Java to another engine. And it’s findings, that Google needed to license the technology from Oracle is exactly what my conclusion was the first time I read that Oracle was threatening to sue.

Why Google has not presented “an open-source licensing defense” I have no idea. I can only speculate that the “open-source license” probably allowed for Sun Microsystems (now owned by Oracle) to sue anyone who infringed upon their patents. You know, the standard “we own it and can do anything we want with it” boiler plate you lawyers are so fond of including in all of your licenses…

daemon

TMO might set cookies, beacons, and such like on your browser, but neither TMO or any other website sets such crap on my browser

Nemo, the very fact that your computer is set like that probably makes you the easiest person in the world to track.

Nemo

Dear daemon:  And this is my last post, because I’ve got to go to work.  I don’t have time to use my expertise as a lawyer to parse both Apple and Google’s privacy policies to refute you, so I am going to pull rank.  I have read both Google and Apple’s respective privacy policies.  And notwithstanding the non-binding preamble that introduces Google’s privacy policy, that policy provides Google with the broadest rights that I’ve seen on the Internet, except perhaps for Facebook, to collect, use, and aggregate users’ personal and/or private information so that Google can develop a complete profile on its users, which it sells to advertisers, marketers, and government investigative agencies for them, as the case may be, to advertise to or investigate those users.  That is what Google’s privacy policy in fact provides, and that is how Google makes its money.  The only discretion that you as a user have, as Google’s Chairman has publicly stated on more than one ocassion is to either accept Google’s privacy policy to use its services or not use its services.  Or paraphrase Eric Schmidt, Google’s Chairman, Google knows it users so well that it knows what they want and need before they know it themselves.

Apple, in contrast, does not state that it can use your personal and/or private data as it wishes, and I defy you to find any statement to that effect in Apple’s privacy policy.  Apple has a privacy policy that gives users some real discretion and protection in what of their personal/private information developers, including Apple, can collect and how that information can be used without a user’s informed consent.  Apple’s restrictions have angered certain developers.  In contrast, no developer has every had cause to be angry with Google because they found its privacy policy too restrictive. 

However, Apple does on its iTunes service collect information about one’s media preferences, but you can opt-out of that (Or is it opt-in?  I don’t remember.), as I have done.  The only opt for Google is opting out of using Google’s services.

The real proof is that some colleagues in the plaintiff’s bar have sued Apple for alleged breaches of its privacy policy by either third-party developers or by Apple itself.  They can do that because Apple has privacy policy that provides its users with some useful rights.  But no one in the plaintiff’s bar even considers a privacy suit against Google or Facebook based on their respective privacy policies, because they offer virtually no protection to their respective users.  All privacy suits against either Google or Facebook must be based on law, because the plaintiff’s bar has found that the user’s contract rights to protect his privacy as set forth in Google and Facebook’s respective privacy policies are so worthless and offer so little protection of privacy beyond what is mandated by law that a breach privacy action based on either of those privacy policies is virtually impossible.

Have a nice day daemon.  And if you are ever called to jury duty on a case involving Google as a party, tell them that by authority as an officer of the court, you must be removed from the jury for cause.

And forgive my infelicities of style, for I’ve no time to proofread this post.

daemon

Have a nice day daemon.  And if you are ever called to jury duty on a case involving Google as a party, tell them that by authority as an officer of the court, you must be removed from the jury for cause.

LoL! I didn’t know you had the power to control jury selection for every court in the entire country Nemo! Have fun at work!

Nemo

Okay, one final quick post:  The only version of Java that Sun open-sourced was the full version that isn’t suitable for a mobile device.  In its open-source licensing, Sun required that one use that full version of Java without any modification whatsoever.  That poison pill provision made the full and open-sourced version of Java useless for mobile devices, which is exactly what Sun intended.  To either modify Java to make it useful for a mobile device or use the mobile version of Java that Sun was selling, one had to get a royal bearing license from Sun.

The problem that Google could not get around with the licensing provisions for open-sourced Java, described, supra, is that you cannot combine a royal bearing license with GPLed software, because that voids the GPL license, which meant that Google had to either abandon open-source to use licensed Java, or it had to abandon Java to use Linux.  Google decided to do neither but instead use a modified version of Java in Android without Sun’s royalty-bearing license to do so.  That decision has placed Google in its present jeopardy of being found liable for infringing on now Oracle’s patents in Java. 

It has been reported that Google could have paid a license to modify Java or to use the mobile version of Java that Sun was selling for a mere $100 million dollars.  Either that, or Google could have developed its own mobile OS from scratch, but I suspect that Google thought that would take too long and, thus, allow Apple to dominate the market.  Instead Google raced to market using a modified version of Java without a license to do so, and now must risk being found liable for infringement, with the resulting treble damages and the lethal risk that Judge Alsup will be forced to issue a broad injunction against the use and distribution of Android in the United States that will effectively shut down Android as mobile OS in the United States, if Google does not agree to license Java on Oracle’s terms.

daemon

Google decided to do neither but instead use a modified version of Java in Android without Sun?s royalty-bearing license to do so.  That decision has placed Google in its present jeopardy of being found liable for infringing on now Oracle?s patents in Java.

That is indeed the arguement Oracle is using.

Dalvik existed before Android. There’s a whole slew of Java Virtual Machines designed to reduce their footprint because Sun’s orginal Java Virtual Machine was such a resource hog. The poison pill might work….

Terrin

Oracle is suing on both copyright and patent infringement grounds. On patent grounds, the judge doesn’t have to order an injunction even if Oracle wins, but he could. The judge has to do a balancing test to determine in the grand scheme of things if that is the best resolution of the matter. The judge can also take the public interest in mind.

The more interesting claims for injunction purposes are the copyright claims, as injunctive relief is more certain.

I wonder with Larry Ellison and Steve Jobs being best friends how much the two talked about this line of attack on Google. Google having to pay a license will help Apple and Oracle.

Alsup?s order of injunction must halt the distribution and use of all infringing versions of Android, and that means an injunction barring the distribution, licensing, and use of Android and the sequestration of all Android devices in stores and in inventory.

daemon

Oracle is suing on both copyright and patent infringement grounds.

The copyright infringement claim was for including test files that Sun had copyrighted. They were on the level of a “Hello World” app…. But I guess even that’s worthy of a copyright…

Terrin

Open source is not use the software however you want. It is use the software however you want subject to the terms of the license. Just because it is open source, doesn’t mean it is without IP protection.

AS I understand it, the applicable GPL v.2 license calls for Google to release to the public any modifications of the open sourced software that in turn will be free for all to use under the same license. Google isn’t doing that.  It is releasing some of the modifications, but under a more restrictive Apache Software license. Google is withholding some modifications all together.

By failing to honor the terms of the GPL v.2 license, Google undermines the purpose of the owner of the open source IP for making the software open source. Namely, to give back to the open source community in a way that the donor of the IP software desires. Google is benefiting from the freely available software, but isn’t reciprocating by giving the modifications back to the community. That is a copyright violation because Google is violating the terms of the open source license.

What?s utter batshit stupid in all this is that people are acting like Google is bad and evil for using an open source platform in their product. It was open source, that?s what you do with open source! What you don?t do is start sueing the people who are using your open source platform years after they?re committed to it for patent infringement.

daemon

AS I understand it, the applicable GPL v.2 license calls for Google to release to the public any modifications of the open sourced software that in turn will be free for all to use under the same license. Google isn?t doing that.

Yes Google has.

quentin

daemon, your blinders are astonishing. Google’s legal team knows their company screwed up, they’re not even fighting the claims, they are, at this point, just trying to minimize the damage. You’re trying to defend them with arguments their lawyers aren’t even using. Or is that because you’re smarter and more familiar with the case than Google’s lawyers?

As for google releasing the Android source, no they’re not
How are you so provable clueless, in every single comment on this post?

daemon

daemon, your blinders are astonishing.

No Quentin, you see I actually follow these things pretty closely. And while Honeycomb’s source code has not been released yet, you can download Android’s source:

Hey look, I know it’s console commands, but come on, you’re a big boy!

There is absolutely nothing that says Google has to release Honeycomb’s source as soon as a product comes out, only that the source be released in a “timely manner.”

How are you so provable clueless, in every single comment on this post?

Not one point have you or Nemo proven. Even Nemo’s entire stance that Google took the close source Java platform was wrong.

You?re trying to defend them with arguments their lawyers aren?t even using.

Defend? No. I freely admit that Android walks all over and lives right inside Oracle’s patents. That’s not a defense, that’s an outright admission. I’m just really pissed that Oracle is getting away with doing this with a platform that was made Open Source by the original owners and developers, Sun Microsystems.

Bosco (Brad Hutchings)

A border skirmish so early in the morning! Terrin… You’re confusing Java and Linux with Android (Honeycomb). Google pretty diligently lives up to its open source obligations with projects it uses. But with projects it creates, it is entitled to wait until they are ready to release source code. A not-so-careful reading of Eric Raymond’s Cathedral and the Bazaar would explain why it’s not only reasonable, but a good idea to wait on releasing source until it’s ready for release.

quentin

There is absolutely nothing that says Google has to release Honeycomb?s source as soon as a product comes out, only that the source be released in a ?timely manner.?

You’re correct, but their whole “open” stance is falling apart, bit by bit with these types of moves. Now, they’re just having the appearance of being open, without actually having to be open at all.

As for your continued habit of ignoring facts. Facts Google has as much as admitted to, I have to assume it’s just a rabid defense of a product you use because you somehow feel an attack on Android is an attack on your sensibilities. At that point, it’s pointless to even converse with you, you’d rather live in your dreamworld than admit that your precious Google may be even the slightest bit in the wrong. Which is both a silly and unproductive.

daemon

You?re correct, but their whole ?open? stance is falling apart, bit by bit with these types of moves.

Jesus H. Christ….. No, it isn’t. Is it that you haven’t ever worked on a software project ever that you don’t see why you don’t release the source code immediately?

As for your continued habit of ignoring facts.

Ignoring facts? I’m ignoring opinions, and disputing false information that you and Nemo have posted.

quentin

Jesus H. Christ?.. No, it isn?t. Is it that you haven?t ever worked on a software project ever that you don?t see why you don?t release the source code immediately?

No, I get the benefits of not releasing the source immediately, but that’s not really the problem here. The problem is that they’re continually taking the stance of being the “open” alternative, when they’ve never actually been open. Even before the Honeycomb issue. They have had the appearance of being open, but only being open when it benefited their revenue stream. Which is fine, it’s helped Android grow, tremendously, but they’re not open, and they’re losing their foundation of being able to say they are the longer they hold back opening up the source. They can’t say “we’re the open alternative, but we’re not going to open the code for a couple years” and still be taken seriously. At least not by people who actually care about the openness beyond using it as a buzzword attack against the competition.

Ignoring facts? I?m ignoring opinions, and disputing false information that you and Nemo have posted.

False information? Like the email that openly, and clearly proved that Google knew it needed to license the version of Java it was using, but chose to take their chances anyway just to get to market faster? Google has some of the brightest engineers on the planet, they anchored themselves to a bloated technology just because they wanted to rush to market. Android would have been a better platform if Google would have rewritten those things from the beginning, but they were too afraid Apple would become too entrenched in the market if they waited, and now they’re paying the price for that risk.

Bosco (Brad Hutchings)

Oh puh-lease quentin. Developers can write software for Android without Google’s permission or blessing. That in itself is far more “open” than Apple. A device maker can install Gingerbread sans the Google apps without Google’s permission or blessing. Apple doesn’t even offer to license iOS to device makers.

Java is not a “bloated technology” that Google should have replaced with their own creation had they had sufficient foresight. It was familiar to many developers, especially those under the age of 35 who likely did a good deal of their undergraduate programming training with it. It protects the underlying system from all sorts of security issues resulting from crashing programs. Please remember that untethered jailbreaks on iPhone typically rely on crashing the Safari app to gain root system access. Having (most) apps written in Java and running in a VM improves the baseline security of Android.

daemon

Like the email that openly, and clearly proved that Google knew it needed to license the version of Java it was using, but chose to take their chances anyway just to get to market faster?

No, that’s the email that explained clearly to Andy Rubin after Oracle started threatening to sue that Google needed to license the technology, because there wasn’t a viable alternative.

The decision to use the Open Source version of Java was made years earlier, and no one ever thought that Sun Microsystems was going to sue them for it.

Ya know…. cause it was OPEN SOURCE!

quentin

Oh puh-lease quentin. Developers can write software for Android without Google?s permission or blessing. That in itself is far more ?open? than Apple. A device maker can install Gingerbread sans the Google apps without Google?s permission or blessing. Apple doesn?t even offer to license iOS to device makers.

No one is arguing the openness of iOS, so I don’t see why any of this matters. Google is the one claiming openness of their OS (not their development platform).

Also, HAHA at Android being more secure than iOS. They both have, and always will have, security holes, and it depends on what kind of security you’re talking about. Many security experts have weighed in on the security issue, some calling them neck and neck, and many putting iOS on top. But I’m sure you’ll post a link or two showing that some blogger somewhere thinks that Android is far more secure, and you’ll claim that as proof. At least put forth some effort to say something not completely baseless if you’re going to be a frothing at the mouth fanboy.

RonMacGuy

There is absolutely nothing that says Google has to release Honeycomb?s source as soon as a product comes out, only that the source be released in a ?timely manner.?

According to Wikipedia:

“3.0 (Honeycomb) was a tablet-oriented release which supports larger screen devices and introduces many new user interface features, and supports multicore processors and hardware acceleration for graphics. The Honeycomb SDK has been released and the first device featuring this version, the Motorola Xoom tablet, went on sale in February 2011.”

February 2011.  So, how long, exactly, is a “in a timely manner”?

Some are saying that it won’t be released until after ice cream is out…

“4.0 (Ice Cream Sandwich) is said to be a combination of Gingerbread and Honeycomb into a “cohesive whole”. It will be released in Q4 2011.”

Nemo

The issues presented:  (1) Is Google obliged to provide the source code of Android, Honeycomb and other versions (Android), when it distributes and/or publishes Android?  (2) Is Google?s performance with the creation and use of Android in material compliance with obligation under the applicable license for Android?

Issue 1:  Google is obliged to concurrently provide the source code for Android, when it distributes and/or publishes Android.  Though Google has said that the preferred license for Android is Apache v2, that license is not the license that licenses Android.  Android is admittedly based on Linux.  Google has never disputed that fact and has indeed admitted that Android has a Linux kernel.  That is the principal and controlling basis for Android being opensource software.

The Linux Foundation licenses Linux as opensource software under GPL v2.  GPL v2 provides that all programs licensed under it and all program that are derivative works that are derived from its programs, such that they are derivatives works pursuant to copyright law, are also programs under GPL v2.  (Programs and derivative works are hereinafter “Programs.”)  Android is a derivative work and is thus a Program, because, inter alia, its core functional element, its Linux kernel, is indisputable a Program, and all the other components of Android are so thoroughly and necessarily integrated with its Linux kernel that Android would cease to function if the kernel was removed.  Android is, thus, not independent of its Linux core.  Android also contains modified software components of Linux.  Finally, Android and its Linux components or modified versions of Linux components are distributed as one unified operating system.  Therefore, Android is a derivative work and is thus a Program that is licensed pursuant to GPL v2. 

GPL v2 further provides in its Section 1 that once any licensee copies and distributes a Program, such as Android, that licensee must provide a copy of the Program and a copy of the GPL v2 license to all who request it without fee and at no cost greater than the actual and reasonable costs that the licensee incurs in providing the copy.  GPL v2 also requires, inter alia, in its Section 2 that derivative Programs be licensed under GPL v2 and that all modifications of Linux’s files be clearly labeled with a notice saying they were modified, when they were modified, and by whom.  Section 3 of GPL v2 requires, inter alia, that the copy of the Program either contain machine readable source code or an offer, good for three years, to provide machine readable source code without charge, except the actual and reasonable cost of copying, to all who request it.

Since it is not reasonably disputable that Android is a derivative work and is thus a Program licensed under GPL v2, Google was obliged to provide a copy of Android that complies with the requirements of the GPL to provide, inter alia, a copy of Android’s source code in machine readable form, when it distributed and/or published Android.

Issue 2:  Google is in material breach of its licensing obligations for Android pursuant to GPL v2.  By not providing a copy of Android and its source code that complies with mandatory provisions of GPL v2, discussed, supra, Google is in material breach of its GPL v2 license for Linux with the effect that its GPL v2 license to use Linux is void and Android is infringing on Linux foundation’s copyright in Linux.

However, Google appear also to be in breach of other provisions of GPL v2.  As some prominent members of the opensource community have opined and/or complained, Google has possibly also breached Linux’s GPL v2 license by:  (1) Not properly labeling components and files of Linux as required by Section 2 of GPL v2; (2) by possibly wrongfully and in violation of the copyright in Linux attempted to license Linux and/or components of it under the Apache v2 license, and (3) by not properly labeling the modified components of Linux as required by Section 2 of GPL v2.  This list of possible breaches of Linux?s GPL v2 license is not exhaustive.

While this review of the two issue presented here has been cursory and is, therefore, only provisional and not legally sufficient to support an opinion of law or a statement that Google is infringing Linux’s copyright, it sets forth a reasonable basis for believing that Google may be material breach of its obligations to provide a copy of Android to all who request it and of some of its other material obligations under GPL v2.

Bosco (Brad Hutchings)

Turn on some college football and grab a couple beers, Nemo. Linus himself has said that Google doesn’t have a source code problem with Honeycomb. Besides, Google need only release kernel code, not supporting code, to comply with the GPL vis a vis Linux.

Nemo

Bosco:  I don’t remember hearing that Linus Torvalds is sitting as judge on any court of competent jurisdiction where the issues that I analyzed, supra, are before him.  I don’t think that Linus is even a lawyer licensed to practice in any jurisdiction in the U.S.  Therefore, I am not ready to defer to his opinion on any point of law.

And, as I understand GPL v2, particularly Sections 2 and 3 thereof, Google is obliged to release a copy of the entire source code for all of Android to anyone who requests it.

However, Google’s position may be secure, because, as I explained, supra, neither the Linux Foundation or any small contributor to Linux have either the means or the stomach for a Linux infringement fight with Google, no matter how good their respective cases may be, and none of the major players, who have the means to fight, have anything to gain by doing so.  So Google may get off.  But the Linux Foundation, by giving Google a pass, risks losing its copyright in Linux on the grounds of waiver and/or laches for its failure to police Google’s open and notorious infringement of its copyright in Linux with an infringement lawsuit.

RonMacGuy

Great detail, Nemo. I can only imagine what Bosco is saying to you.

Bosco (Brad Hutchings)

Nemo, he is the de facto copyright owner of Linux. It’s his. He licensed it under a GPL license, and has no problem with Google’s compliance. You probably need to find an actual aggrieved client. And then you should study the various components that go into “Android” and how Google contributes to those projects. It would be educational for you.

quentin

Nemo, he is the de facto copyright owner of Linux.

That’s actually not true. As an ongoing open source project, the community of developers who have long contributed to the project, collectively ‘own’ Linux. Linus doesn’t have any more right to copyright claim than any other developers who have contributed. The aggrieved client would be the open source community, many of whom probably are upset about Google doing what they’ve done, but, again, no one has the means or motivation to take on Google’s million dollar lawyers.

Nemo

Bosco:  I will have to check on this, but I am pretty sure that Linus Torvalds no longer personally owns the copyright on Linux.  At best, he is an influential member of the Linux Foundation.

But Google has an even broader problem.  It is not only the Linux Foundation that has standing to sue to enforce Linux’s GPL v2 license but also any developer who contributed to Linux and whose code is in Linux.  That could be anybody from a small developer working on his own to companies like Oracle and IBM.  While, as I explained, supra, I don’t think that any contributor to Linux, large or small, will sue Google for breaching Linux’s GPL v2 license, thus voiding that license, and therefore, infringing on Linux, the decision to sue Linux is neither a matter of Mr. Torvalds’ sole discretion or even solely in the discretion of the Linux Foundation.

However, if Linux Foundation, some contributor to Linux, or some other party with standing should decide to sue Google for infringing Linux, the only issue would be whether Android, all of it, is a derivative work of Linux.  If it is—and I believe that it is—then Google’s license to use Linux in Android was instantly void the moment that Google materially breached the provisions of Linux’s GPL v2 by not providing the source code to Android upon request or by one of the other material failures of performance of the provisions of Linux’s GPL v2 license that I described, supra, and because GPL v2 does not seem to provide for cure once its provisions have been materially breached, Google’s license to use Linux in Android is irrevocably void the instant that it materially breached Linux’s GPL v2 license.

If only a party with standing and the means to sue would appear, I think that I or any competent lawyer could rip Linux right out of Android, notwithstanding Mr. Torvalds’ wishes in the matter.

daemon

If only a party with standing and the means to sue would appear, I think that I or any competent lawyer could rip Linux right out of Android, notwithstanding Mr. Torvalds? wishes in the matter.

Nemo, the Lawyer in you is incapable of understanding the goals of the GPL.

wab95

Nemo, John et al:

While my interest in this topic is admittedly marginal, and while I recognise that our opinions here (certainly mine), however strongly felt and voiced, don’t amount to ‘a hill of beans’ (if I may borrow a quote from Bogey) insofar as final outcomes are concerned, your discussion has been enlightening and has sufficiently peaked my interest such that I wonder if you or any of your debating coterie can recommend a Twitter source or other info feed. I would like to follow it for regular updates.

Coverage in the mainstream media has been reasonably good, even if inconsistent, and reflects much of what you argue here. My read is that the legal and business minds in the industry appreciate the real threats faced by Google and Android, and while no credible analyst has been either dismissive or nonchalant regarding those challenges, I infer, correctly or not, that Android may have become ‘too big to fail’, not unlike the Blackberry of yore, and that a way will be found to keep it alive, likely at some cost to Google.

My reductionist assessment of the take home message to the industry is, ‘better due diligence before you launch’ (at best Google appear to have been sloppy, perhaps worse), and set something aside for preemptive litigation where necessary. It may be too generous an assessment on my part, but I believe that Google’s core business (search) is far too great a global resource and public asset, privacy issues notwithstanding, for the courts to want to punish Google too harshly for any real or perceived trespasses. Time will tell soon enough, opinions aside.

Many thanks in advance for any newsfeed recommendations. Looking forward to further discussion.

wab95

I should add, insofar as smartphone patent disputes go, I am following FOSSpatents on Twitter.

Nemo

Dear daemon:  I understand at least this much about the purpose of the GPL:  Among GPL’s chief purposes is that those who contribute to programs licensed under it, such as Linux, have the right to have access to the derivative works, e.g., Android, which is a derivative work that their contributions to Linux help create, so that they are free to use those derivative works and modify them as they wish, provided that they also agree to license their use and modifications under the GPL.  I also understand that by not providing the source code for Android when it distributed Honeycomb, Google violated the right of all those developers who contributed to Linux, and the right of us all upon request to have access to Android, as they have been allowed access to the source code of nearly every other derivative work that has been derived from Linux pursuant to the provisions of Linux’s GPL v2 license.

Let me tell you something else that I know.  I know that U.S. Federal Circuit Court of Appeals, this nations most authoritative court of appeals on IP law, second only to the U.S. Supreme Court, has held that the GPL is a copyright license just like other copyright licenses and is fully enforceable as such and has also held that the creator of derivative works under the GPL must provide copies and source code for those derivative works as provided by the GPL and that failure to do so constitutes breach that voids the GPL license.  And further held that that breach is both a breach of contract and an infringement of copyright, so that the Plaintiff in the action is entitled to both damages for past infringement and an injunction barring future infringement.

Therefore, I also know that if it can be established that Android is a derivative work that is derived from Linux, as I believe it can be so established, there are excellent prospects for proving that Google, by not timely supplying the source code for Android, breached Linux’s GPL license so that, at the instant of the breach, Google’s license to use Linux was incurably void so that all such use of Linux in Android constitutes, in addition to breach of contract, infringement of the copyright in Linux, where an injunction enjoining Google’s further use of Linux in Android would be among the appropriate remedies to prevent any further infringement of Linux by Google.

Nemo

I too recommend @FOOSpatents and its companion website, http://fosspatents.blogspot.com/.  Though Mr. Mueller occasionally makes a mistake on points of law and can also be biased by his vehement opposition to software patents, he is on the whole a good source.  Mr. Mueller has also written extensively on how Google’s use of opensource in Android has violated both the principles and licenses of opensource, though, to get his full views, you may have to search the archive of his articles at the website, supra.

I also have a whole list of patent blogs that I follow on Twitter, but I don’t have time right now to put up the one’s that are suitable for a lay audience.  I will try to post them here tomorrow.

wab95

I will try to post them here tomorrow.

Many thanks, Nemo.

Bosco (Brad Hutchings)

Nemo, before you mount your unicorn and take aim at this windmill, you might want to review how Linux fits into Android’s architecture. By your theory of derivative works covered by GPL, a more lucrative target of your proposed litigation might be Oracle for its flagship relational database. A more fun one, might be Rovio for Angry Birds.

Nemo

Dear wab95:  You have a good appreciation for the practical dilemma facing Judge Alsup, if Oracle can prove that Google infringed on its patents in Java.  As Terrin, pointed out, supra, Judge Alsup has to a balancing test to determine whether an injunction is appropriate and in the public interest.  Unfortunately, the seemingly incontrovertible proof of Google’s intent to infringe tips that balancing test heavily in favor of an injunction.  Yet Judge Alsup has no desire to walk into a judicial conference and here one of his colleagues say:  Bill I heard that you destroyed Android last week.  What are you going to do for an encore?  Take down the Internet. 

But Oracle would be entitled to effective relief that prevents future infringement.  So Judge Alsup will be searching for a remedy that will both protect Oracle’s rights, while not damaging the mobile device industry. 

My Brother Jacobs, if Oracle wants an injunction, must help Judge Alsup out of his dilemma.  I think that a way to do it is for provision of an injunction to take effect at different times for different constituencies.  For example, it will take OEMs about two year to negotiate Windows Phone and/or WebOS licenses and redesign their devices for those mobile operating systems, so an injunction banning Android should be structured so that it delays enjoining the use of Android for two years but with royalty payments to Oracles that reflect the value of its Java patents.

An injunction on the Market and developers could also be delayed for about to years to from date the injunction is filed to reflect the two years of the typical smartphone contract.  Again there would have to be royalty payments to Oracle.

Such a structured injunction also has the advantage of giving Oracle and Google time to reach a settlement, but it would also hold Google’s feet to the fire, as there would be a date certain when the injunction would enjoin the use and distribution of Android, and the Android ecosystem would quickly begin collapsing at Google’s feet.  Also, this type of injunction would give both the U.S. 9th Circuit and U.S. Supreme Court time to weigh in, if the parties can’t settle.  Though I would expect that well before even a 9th Circuit decision, Google would have to capitulate and accept Oracle’s terms.

wab95, I am getting yelled at.

Nemo

Bosco:  A quick look at the schematic seems to confirm that, within the meaning of copyright law, Android is a derivative work so that Google must comply with provisions of the GPL v2 regarding derivative works.  Take away Linux and Android doesn’t work at all, much less work as an independent program, and Android and its Linux kernel are packaged as one unified OS.  That is a derivative work.

If Google didn’t want to comply with GPL v2, it should have built it own kernel or chose, as Apple did, an operating system with a license that better suited its purposes.

quentin

But google and “open” and do no evil…

Seriously, I don’t hate Google, I don’t want to see them die or anything, but excusing their outright bad behavior is just baffling.

daemon

A quick look at the schematic seems to confirm that, within the meaning of copyright law, Android is a derivative work so that Google must comply with provisions of the GPL v2 regarding derivative works.

Nemo, your failure to comprehend software design as well as the GPL’s goals is mind numbing. I’ve often wondered, what is your field of expertise in Law? Bancruptcy?

quentin

daemon, your ignorance and dedication to the Google machine is baffling. It’s a simple logic test. Is Android derived from Linux? Absolutely. More directly, does Android function if you remove Linux? Unquestionably, no. By any definition, that is a derivative work.

I’m curious what you think the purpose of the GPL is.

Bosco (Brad Hutchings)

@quentin: This is Linus himself on your bogus claim:

?It seems totally bogus. We?ve always made it very clear that the kernel system call interfaces do not in any way result in a derived work as per the GPL, and the kernel details are exported through the kernel headers to all the normal glibc interfaces too.?

So, no, “by any definition” (such as Linus’s), Android is not a derivative work. You and Nemo do not seem familiar with some of these common code licensing practices, and your opinions reflect that lack of familiarity.

Nemo

Dear daemon:  I simply applied the statutory definition of a “derivative work,” combined with my knowledge of the case law.  The definition of a “derivative work” is:

A ?derivative work? is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a ?derivative work?.

17 U.S.C. ? 101.  You can see that the statutory definition is fundamentally similar to the dictionary definition of derivative: 

adjective
(typically of an artist or work of art) imitative of the work of another person, and usually disapproved of for that reason: an artist who is not in the slightest bit derivative.
? originating from, based on, or influenced by: Darwin’s work is derivative of the moral philosophers.
? [ attrib. ] (of a financial product) having a value deriving from an underlying variable asset: equity-based derivative products.

For our purposes here, the second definition from the dictionary is the relevant one and is fundamentally in accord with the statutory definition at 17 U.S.C. ? 101.  The key is that a derivative work: “is a work based upon one or more preexisting works, . . . or any other form in which a work may be recast, transformed, or adapted.”  Clearly, the schematic that Bosco provided shows that Android is based on Linux, which is a preexisting work, and that nothing that Google did to Linux in Android is beyond the ambit of recasting, transforming, or adapting Linux.  In other words, Android is not an original, independent work so that Google could have a copyright in it. 

And I am informed by friends who code for a living, one of whom is P.H.D. in computer science, that Android is Linux at its core, just as Mac OS X and iOS are BSD Unix at their core, with Google having done nothing to Linux that would not be immediately recognized as a Linux kernel by one familiar with Linux. 

The difference, however, between Apple and Google is that Apple chose BSD Unix, because the applicable version of the BSD license permitted Apple to build a proprietary structure on top of BSD Unix and to build proprietary modifications of BSD Unix.  To the contrary, GPL, which is Linux’s license, is designed to prevent just that by, inter alia, requiring that the author of a derivative work, based on Linux to, upon request, provide a complete copy of the source code of the derivative work, which here is Android, once he distributes that derivative work, as a condition for having a license, the GPL license, to use the preexisting work, which here is Linux.  So if Google wants to handle Android, as it has (not publishing source code upon distribution, not labeling components and modified component, as required, attempting to re-license Linux under Apache, et al.), it chose, in Linux’s GPL license, a license that would not authorize it to do so, so that Android, to the eyes of many prominent commentators, appears to be patently infringing on the copyright in Linux.

If Oracle prevails in its lawsuit against Google over the Java patents and, if a plaintiff of sufficient standing, will, and resources appeared to sue Google for its infringement of Linux, along with other infringement actions here and abroad for infringing on media content, I think that the courts, here and abroad, would discover that, in Google, we have a serial infringer, whose senior management violates others’ IP rights as it suits Google’s opportunities to make profits, constrained only by their estimation of what they can get away with and by their specious rationalizations of their wrongful conduct.

As for my qualifications, I must demur, as that could give me away, either that or tell you lies, and I try not to lie, because I don’t want to be evil.

Nemo

And Bosco, notwithstanding Mr. Torvalds’ non-expert legal opinion on the matter, the federal courts, if the issue of Google’s infringement were ever to reach them, will apply the law to the evidence.  Among that law, that would be so applied, is the statutory definition of a derivative work, supra.  And I am told by experts in coding that, under that definition, there is no way that Android isn’t a derivative work, with all due respect to Mr. Torvalds, which on this question of law isn’t much. 

However, if I have a question on how Linux works or about Linux per se, I will pay greater heed to Mr. Torvalds, though even there I shall not regard him as the last word.

Bosco (Brad Hutchings)

Nemo: Interesting. According to your butchered understanding of software components and licensing, Xcode is a derivative work of GCC. Every piece of software I’ve written for the Mac is a derivative of Mac OS and thus the property of Apple. Keep up the amazing reasoning, and you might just conclude that water isn’t wet!!

Let me try a simpler example to show you how you’re screwing this up. Fisker (the electric car maker) recently announced that BMW will be supplying it up to 100K gas engines for use in its upcoming extended range luxury electric sedans. By your reasoning, the Fisker Karma would be a derivative work of the BMW engine (were they software). In fact, the BMW engine is just a component, using well-defined interfaces to connect to the rest of the vehicle and provide the services it is designed to provide.

The place to get the source to the Android Linux Kernel (a portion of Android) is android.git.kernel.org. Google keeps this updated even though their changes to Linux are no longer being incorporated into the main branch. That’s the extent of their responsibility to Linux developers under the GPL.

RonMacGuy

Nemo, Quentin, I commend you on your attempts here, but you have to accept that some people just cannot accept that they are wrong. Some are such blind followers of google and android that they honestly think that google should be able to do whatever they want with no accountability or repercussions “for the good of competition and for the good of the industry”. Some, when faced with undeniable evidence that they are flat-out wrong, hide until “the coast is clear.”

Let’s face it, how else can google compete, other than stealing, lying, cheating, etc.? LOL.

But I must admit, it’s been fun watching!!

Nemo

Dear Bosco:  The threshold question is whether the software in question is a derivative work, and after that, if the software is a derivative work, whether the use of the preexisting work is licensed.  GCC, as you may know, is open-source software, so the question is whether OS X’s compiler is a derivative work and, if it is, whether OS X compiler is in compliance with GCC’s GPL license.  I don’t know the answer to either of those questions.  And I am not going to do the research necessary to answer them here. 

Also, you may wish to know that Apple is moving to or has moved to, I think, the LLVM compiler for OS X and iOS.  LLVM is licensed under the BSD license that, as I said, supra, permits Apple to build proprietary modifications.

As for programs built using Xcode, to the extent they are derivative works, they are licensed by Apple, subject to the terms of the Xcode license, so that developers maintain their proprietary rights, including copyright, in their respective items of software that they make using Xcode.

As for your example, it proves my point.  BMW is providing the engines to Fisker Karma (Fisker) with a license to use them in its cars.  Without that license, Fisker would be infringing so that BMW could shut it down, that is, obtain an injunction enjoining Fisker’s use of its engines without its permission.  Without BMW’s license, Fisker could not use BMW’s engines as a component in its cars.  The only way it could be otherwise is that BMW is working for hire or BMW has no proprietary IP rights in the engines that it is providing to Fisker, and I doubt that either of those things is true. 

It is just so that without the GPL license, Google can’t use Linux in Android, whether or not it uses Linux as a verbatim copy or as unmodified component of Android or as a modified component of Android.  And we may soon learn that without Oracle’s license, Google can’t use Java or any modification of it in Android.

As for the kernel, the GPL v2 license requires that the source code for the entire derivative work, which means all of Android, be provided upon request, not just the Linux part of it.  If you don’t comply with that provision of GPL v2, your license to use Linux is void from the instant of your noncompliance.  Thus, if you are not prepared to supply a copy of the source code, the entire source code, of a work derived from Linux, you must forgo the use of Linux or be an infringer.

Bosco, it is these same copyrights (the rights prohibiting unlicensed copying, modification, and/or distribution) that protect the software that your organization authors.  If you author a program that is valuable or even one that isn’t valuable, but some infringer, which is just a type of thief, copies or modifies your software without your license and them distributes it, usually selling it for money, you have the right to go into federal district court to get an award of damages that at least reflects your economic injury and an injunction to prevent further infringement.  And it doesn’t matter whether the infringer makes a verbatim copy of your software or simply uses it as a unmodified or modified functional component of his own program, for it is well settled law that he can’t do either without your permission, that is, without your license, to do so.  And that is the rule of law here, in most of Europe, and in every country that is a signatory to the WTO trade agreements.

Your naive understanding that unlicensed use of all, some part of, or a modification of a copyrighted preexisting work, as a component of a larger work, is not an infringing derivative work is simply wrong as matter of law.  It is so wrong and so contrary to settled law that any lawyer arguing it would be sanctioned by the court on motion or perhaps even sua sponte for making a frivolous argument, and that lawyer’s client would easily win a lawsuit against that lawyer for malpractice.

Bosco (Brad Hutchings)

Then like I said Nemo, you can sue every application vendor that deploys on Linux. Start with Oracle for its flagship database. And you can get me the full source code for Xcode while it still uses gcc. Your contention is just preposterous. Inclusion of a unit of software does not, in itself, make the whole “derivative”. But hey, you go on believing that now.

Nemo

Bosco:  No, the simple answer is the one that I believe that Apple and most other users of Linux have chosen, which is to comply with the version of the GPL and other applicable licenses that license the software that they use.  Apple has been particularly scrupulous in honoring the open-source licenses for the open-source software that it uses.  And I am not aware of any facts to the contrary.  As for others, who have used Linux, several of those who failed to honor Linux’s GPL license have been successfully prosecuted.

So no, you won’t have a case against every vendor that deploys Linux or other licensed software but against only those who infringe.

RonMacGuy

Nemo, Bosco still honestly believes that the iPad is “declining and mostly irrelevant” and that iPhone smartphone share will dwindle to 10% by end of 2011. Do you think you can actually change his mind on this?!?!?

Nemo

RonMacGuy: No, I don’t think that I can change Bosco’s mind, nor do I think that any reasoned presentation of facts and argument can change his mind on anything, once he has made his mind up.  But considering his arguments, even his most absurd arguments, helps my own thinking on these issues.

RonMacGuy

...even his most absurd arguments, helps my own thinking on these issues

Well, in that case, you are getting an ‘absurd’ amount of help on your own thinking.  He must be spewing his ‘supra sua sponte’ all over the place!!

grin

I must admit, I don’t understand a lot of your “lawyer-ese” but it sounds pretty darn impressive!!  Keep up the good work, and don’t let the “I’m a computer programmer so that means I understand law” jokesters get you down!

Nemo

RonMacGuy:  You can find definitions for all of my lawyer’s argot either in dictionary in OS X or on the Internet.  And if you don’t want invest in Black’s Law Dictionary, you can also find good legal definitions here:  http://legal-dictionary.thefreedictionary.com/.

daemon

I must admit, I don?t understand a lot of your ?lawyer-ese? but it sounds pretty darn impressive!!

You’re impressed by an over-use of Latin legal jargon and an obfuscated writing format?

geoduck

I think the conflict arises from differing world views. I’m looking at this from the point of view of someone who has worked as an IT Manager who had to tell programmers what they could and could not do.

In my experience there is the law, as expressed so well by Nemo. Then there’s the world programmers live in. I’ve regularly come up against programmers who assume “the way I do it is the right way because it’s the way I do it.” There is a common arrogance among programmers who assume they are the experts so they must be right.  I’ve seen some fired because they insisted on doing something their way not the way Legal said it had to be done.

So when daemon or Bosco, or even Linus Torvalds express an opinion about Licensure they are looking at it from ‘programmer world’ not the real world of the law.

When something comes up in an area that I’m not trained in I rely on the experts. I call in an electrician for wiring problems. I call in a plumber for water problems. And I call in a lawyer, such as Nemo, for legal questions.

RonMacGuy

Now daemon, don’t deteriorate to the Bosco level of personal insults. I think you are way above that, as are most snitches, rats, and snakes. I have much more respect for you and your comments, although I think you tend to lean toward the “google is OK doing whatever they do in order to gain market share even if their practices are shady and legally questionable” side a bit too blindly, which you prove even as you accuse people like Nemo of “casting Google?s actions in a negative tone to drive your (his) over-all agenda that everything Google does is bad, and that they need to be destoryed (sp), all because Steve Jobs got pissed about Android”.

Technically, I said that “it sounds pretty darn impressive”, not that I was directly impressed. Excuse me for believing a lawyer on all things judicial over computer programmers.

RonMacGuy

Very well put, geoduck. Thanks.

There is a common arrogance among programmers who assume they are the experts so they must be right.

No, really? Programmers are arrogant?!?!? Shocking!!

grin

Disclaimer: My comments about programmers are meant as a joke. I by no means am implying or generalizing that all people who are titled “programmers” are arrogant.

Bosco (Brad Hutchings)

I think the conflict arises from differing world views. I?m looking at this from the point of view of someone who has worked as an IT Manager who had to tell programmers what they could and could not do.

No, the conflict really has to do with Nemo having no clue what he’s talking about, nor having the ability nor willingness to consider the implications of his assertion that Android is a derivative work of Linux.

There are numerous appliance products that package Linux with proprietary software or software available under different licenses (Apache or BSD, for example). Such products, such as routers, gateways, network storage, firewalls, etc. have existed for the better part of 15 years now and set a significant precedent about how GPL v2 has been interpreted in practice.

The developers of Linux have made it very clear from the beginning that use of the Application Binary Interface (ABI) by processes on the computer to communicate with and direct the Linux kernel does not inflict the GPL on software that does it. The contract itself (GPL) and explicit expressions made by the developers about the applicability of the contract are the relevant items here.

So, I’m sorry geoduck, as much as Nemo’s contention pushes the narrative that Google the teh evil, it’s still bullshit, and it reflects badly on each of you that side with him on this.

Nemo

Dear Bosco:  For Android not to be a derivative work, Google would have to show that Android is an independent program that is functionally independent of the Linux components and modified Linux components in its package, so that the removal of the modified and unmodified Linux components from Android does not significantly affect the functionality of Android as mobile operating system for mobile smart devices. 

I don’t think that Google can do it.  I don’t think that God, short of a miracle, could do it.  I think that my experts’ testimony would convince the judge, probably on summary judgment motion, or the jury at trial that Linux and the modified Linux components are necessary to Android for it functions as a operating system.  And what would synch it would be a simple demonstration for the court, where we would run production versions of Google’s Android on a variety of Android devices, putting them through their paces, and then we would run the same versions of Android on the same devices, but this time with the Linux and modified Linux components removed.  And, at that point, I would love to hear the response of Google’s counsel, as the Judge asked him how he can possibly continue to argue that Android is a functionally independent program that is capable of functioning independently of Linux and which is not based on Linux, when the removal of Linux components and modified Linux components from every version of Android causes every Android device running them to cease to function, period.  Jurors would not even need to ask that question; they would simply conclude that Google’s lawyers have been forced to absurdly argue that Android is not a derivative work of Linux, when it so patently is.

As the schematic that you offered shows, Android is not merely based on Linux; Linux, as Android’s kernel, is the foundation upon which every other component and layer of Android is built, removing that Linux foundation causes the rest of Android to collapse.

daemon:  You are right: I probably should remove the Latin terms from my arguments, though they are convenient shorthand for lawyers.  I thought that our interlocutors could easily enough find the definition on the Internet, and might benefit from doing so.  But it is not Latin that I hope impresses our interlocutors but the soundness of my arguments.  However, you and Bosco might try a little Latin, since you have nothing else to cover the naked absurdity of your view that Android is not a derivative work of Linux within the meaning of copyright law.

daemon

And what would synch it would be a simple demonstration for the court, where we would run production versions of Google?s Android on a variety of Android devices, putting them through their paces, and then we would run the same versions of Android on the same devices, but this time with the Linux and modified Linux components removed.

/facepalm You really don’t understand, do you Nemo?

daemon

As the schematic that you offered shows, Android is not merely based on Linux; Linux, as Android?s kernel, is the foundation upon which every other component and layer of Android is built, removing that Linux foundation causes the rest of Android to collapse.

In much the same way that Unix is the base of OS X, yet Apple has no issues with not publishing the source code for all of OS X, only Darwin.

Can you tell me how that’s legally viable from your point of view Nemo?

RonMacGuy

I feel sorry for the dead horse that everyone is still beating the crud out of. Not much left of it.

This will never be solved unless a lawsuit on it appears in the courts. Until then, we agree to disagree.

RonMacGuy

In much the same way that Unix is the base of OS X, yet Apple has no issues with not publishing the source code for all of OS X, only Darwin.

You’re generalizing.

Nemo

Dear daemon:  As I explained, supra, Apple does not have to release the code for OS X, even though it is a derivative work that is based on BSD Unix, because the BSD license permits a licensee to create modification that are proprietary to the licensee, so Apple owns the copyright in its modifications to BSD Unix.  That difference between the BSD and GPL licenses is one of the primary reasons that Apple decided against using Linux as the basis of OS X.

While Steve Jobs was still mentoring Larry and Sergey, before they stabbed him in the back, they should have asked him why he didn’t use Linux as the kernel for OS X.  They might have learned to avoid Linux, because of its GPL license.  But now that I come think of it, if you don’t intend to honor Linux’s GPL license, there is no reason, except fear of a court’s judgement, not to use Linux in Android, while ignoring the provisions of the GPL that Google finds inconvenient.  But, fortunately for Google and as I also explained, supra, a plaintiff with the will and means to sue Google for infringing on Linux is unlikely to appear.  So GPL and Google’s fake commitment to open-source be damned.

quentin

In much the same way that Unix is the base of OS X, yet Apple has no issues with not publishing the source code for all of OS X, only Darwin.

Apple intentionally chose a software that was licensed in a way that would not force them to release the source code. The unix core of OSX is not licensed under the GPL.

Lee Dronick

I feel sorry for the dead horse that everyone is still beating the crud out of.

Yes, it is an impasse. I am going to unsubscribe from this story.

Nemo

Sir Harry:  You are right.  We’ve long passed the point where further discussion will be useful.  I am out.

daemon

even though it is a derivative work that is based on BSD Unix, because the BSD license permits a licensee to create modification that are proprietary to the licensee, so Apple owns the copyright in its modifications to BSD Unix.

If that’s true, then why does Apple release the source for Darwin?

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