Oracle’s lawsuit against Google alleging that Android contains copyrighted code from Java has garnered a lot of attention lately. Here’s the situation so far: background on the issues, the salient discussions, what’s next, and some final commentary on how it all relates to Apple.
Oracle has filed a lawsuit against Google (and recently amended it) alleging that parts of Google’s Android OS were directly copied from Java class libraries. The complaint also says that Google’s Android code contains APIs that are derivatives of copyrighted Java API packages. For a description of the original lawsuit, see the report by James Niccolai at IDG/Infoworld on 28 Oct 2010. Back in August, 2010, TMO published “Exploring Oracle’s Lawsuit Against Google,” which provides additional background, especially on the patent issues.
Internet Discussions & Analysis
Jump forward to last week. Florian Mueller, an intellectual property activist who has thoughtfully declined to declare himself an expert, recently dug into the case and looked at code. In his first analysis, published on 21 Jan 2011, he stated that “Google faces a steep challenge in its defense against Oracle…”
In that analysis, and it gets fairly technical, Oracle’s claims and part of Google’s defense are analyzed. Mr. Mueller concludes, “In my analysis I pointed out that Sun’s original source code was structured according to professional standards while the Android version of those files looked like an attempt to conceal an infringement.” During the process of analyzing the Android Code Tree, Mr. Mueller found “37 source files with a Sun Microsystems copyright header” referenced above.
An attorney who is following the case along with me wrote: “If what Mr. Mueller has found, holds up after full discovery … the threat to Android, Android apps, and Google can’t be overemphasized. The threat to Android and its apps is existential: If Oracle wins on its copyright and/or patent infringement claims, Google must pay wickedly expensive, though probably not ruinous, damages, and settle this lawsuit on Oracle’s terms.”
Immediately thereafter, Ryan Paul at ars technica pointed out some items that appear to be in Google’s defense. “It’s not clear how the zip file got included in the [Android Open Source Project] AOSP, but it’s obvious that it wasn’t intended to be there and isn’t actually used by Android in any capacity…. It’s a handful of test cases from an unrelated and publicly available Sun reference implementation that got uploaded by accident to AOSP in a zip archive supplied by a third party. It’s a tacky mistake, but it’s hardly serious or damaging. At worst, it warrants a takedown notice. It’s certainly not a smoking gun as one might assume when viewing the code out of context.”
A more energetic, if not sarcastic, defense was posted at ZDNet which argued that none of the infringing code has actually shipped on an Android device. In that article by Ed Burnette, who took pains to point out that Mr. Mueller is neither a attorney nor a developer “but plays one on TV” proceeded to point out that it was all an innocent mistake and concluded, with bold opinion: “Sadly, while sensational articles like Engadget’s* and Mueller’s will get splashed all over the web and lavished with thousands of views and hundreds of comments, the boring truth will rate no such attention.”
On 23 Jan 2011, Mr. Mueller provided a second round of detailed analysis that our attorney consultant found compelling. It’s here for you to digest, if you care to. Mueller followed that with a detailed rebuttal of Mr. Ryan Paul and Mr. Ed Burnette’s posts. Mr. Mueller wrote, “Six of those files [in the Android code base] were relicensed — apparently without permission — under the Apache license, which allows redistribution to an unlimited number of users and its integration (with or without modifications) into other open source projects (provided they are under a compatible license) or even into closed source (proprietary) products.
“Relicensing someone else’s software on open source terms is not a harmless sport. Third parties may directly or indirectly obtain those files and, in good-faith reliance upon their license headers, use and distribute such software. If the right holder never consented to the terms of that new license, this can result in liability problems. The relicensed code can pop up in any number of places and spread further, and it may not be easy to put the genie back into the bottle once it’s been published on the Internet.”
Mr. Mueller went on to prove his point by demonstrating how the infringing code made its way onto Motorola, LG, and Samsung websites, all users of Android. “I’m sure those companies didn’t intend to infringe Oracle’s rights, ” Mueller wrote. “They probably relied on the presumed legality of the Android codebase.” The upshot is that the compiled code doesn’t have to make it onto a shipping device for there to be copyright infringement.
Previously, Mr. Mueller had pointed out that Google’s patent portfolio is so weak that it likely can’t even invoke a countersuit as a possible defense.
Our attorney consultant summarizes: “Mr. Mueller shows that there is prima facie case, that is, a case presumed to be true until rebutted, of Google having reproduced, distributed, and/or modified Oracle’s proprietary Java code without Oracle’s permission to do so. [Mueller] does that by identifying Java code that Google has put into Android 2.2, Froyo, and Android 2.3, Gingerbread, code bases apparently without Oracle’s license to do so. He also showed that Google appears to have redistributed certain Java code under the Apache license apparently without Oracle’s permission to do so.”
Continuing, “However, Mr. Mueller goes further to show that certain Android OEMs, the ones discussed in his article, have most likely infringed [perhaps unknowingly] by copying and redistributing Java code under the Apache license without Oracle’s permission, and yet further shows that those OEMs most likely include unlicensed and, therefore, presumably infringing Java code in certain of their Android devices, though, as Mr. Mueller states, that can’t be established without examining at least a sample of a particular Android device at issue.”
Why Did Goggle do it?
One possibility is that Google was in a hurry to compete with Apple. It took Apple a decade to start from 4.3BSD + Mach, develop Rhapsody, fine tune Mac OS X from Cheetah to Snow Leopard, build development tools, and culminate with Cocoa touch. Perhaps Google cut some corners, in a rush, to develop Android. Perhaps there wasn’t time, in that development frenzy, for detailed, time-consuming review by IP attorneys at Google. Perhaps Eric Schmidt, under whom Java was developed at Sun, felt a sense of entitlement to the code. Perhaps Google engineers, under time pressure, forgot to attend to details and/or didn’t understand the impact of their edits — which can sometimes get quite automated. This is all speculation. We may never know the “why,” simply the determination of the court as to liability and damages, if any.
What Happens Next?
Our attorney consultant weighs in: “The parties will conduct discovery, that is, the process of gathering the facts relevant to their claims and defenses and conclude that process by the date that Judge Alsup has ordered. As I said [previously], they will then file their respective motions for summary judgment and their respective oppositions to those motions. That’s when we will get to see the strength of the parties’ case or at least as much as we can see, depending on how heavily the parties have redacted their motions. On the motions for summary judgment, Judge Alsup will dispose of that part of the case, the claims and defenses, where he deems that is no genuine dispute as to any material fact for a jury make findings of fact. Any remaining part of the case that isn’t settled will be scheduled for a jury trial.”
Apple was not in great shape when Steve Jobs resumed control of the company in 1998. Even so, Mr. Jobs’s genius was to buy the company valuable time with the iMac, even if it did have the legacy Mac OS. The time Mr. Jobs bought the company with a Jonathan Ive designed iMac gave Apple engineers the precious time they needed to build Mac OS X and its development tools. Years later, in 2006, Apple had the tools and OS it needed to built the iPhone and iOS.
Today, companies are still being taken by surprise by the collective work and sweat-equity Apple put into Mac OS X, Cocoa, Xcode and iOS. That groundwork has enabled Apple to move forward at a much faster pace than competitors, an alarming pace, that, today, frightens both Apple’s competitors and tech writers in opposing camps.
Google, however, has hardly been fighting for its very life. The company is flush with cash. Google could have taken its time and developed a brand new mobile OS from scratch and license it any way it pleased. That might have taken five years. Partners in that OS would have full confidence in Google’s intellectual property. It appears, however, and this is just a guess, Google got anxious, overly eager to compete, didn’t invoke a lot of adult supervision via in-house attorneys, and rushed Android to market. In the end, that may be one reason why Eric Schmidt lost his job.
*Nilay Patel, a copyright lawyer, launched a discussion at engadget.com that Mr. Burnette didn’t agree with.