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Google found distributing Oracle's Java code within Android project

post #1 of 278
Thread Starter 
Files originating in Oracle's Java have been discovered within the Android open source project managed by Google, emboldening Oracle's copyright infringement claims against the company.

Florian Mueller, an "intellectual property activist" who writes a blog on the subject of software patents and how they relate to free and open source software, posted a description of dozens of files that "Oracle might present to the court as examples of copyright-infringing material in the Android codebase."

Mueller wrote that the examples include 37 code files "marked as 'PROPRIETARY/CONFIDENTIAL' by Sun and a copyright notice file that says: 'DO NOT DISTRIBUTE!'," setting off new discussions about the case. Oracle, which acquired Sun last year, has brought suit against Google claiming that Android illegally infringes upon its Java intellectual property.

Oracle appears intent to charge Google a licensing fee for distributing Android if it prevails in the case. Android has largely replaced Oracle's Java ME as the target platform for mobile manufacturers who lack their own software platform, in part because licensing Oracle's Java costs money, while Google is offering Android for free.

By forcing Google to pay licensing fees to distribute Android, Oracle will at least benefit from its newly acquired Java indirectly, and may also be able to continue to sell Java as a mobile platform if it is not forced to compete against Google's free alternative, which Oracle maintains is only free because it is not original work but rather an infringement of its own intellectual property.

In defense of Google

Following the discovery, a report by Ars Technica detailed that most the discovered files were part of a third party component's audio software that does indeed include code from Oracle, but which was never distributed as part of the Android OS on actual devices.

The report notes that the file archive in question is "hosted in the Android code repository, but its contents are not part of the Android codebase itself. These finds demonstrate a need for more rigorous code auditing to avoid such cases of incidental infringement, but don't support the contention that Android itself, in the form that is shipped on devices, is cribbing from J2ME."

A more scathingly-worded defense was posted by ZDNet, which similarly described some of the files in question as being internal unit test tools that would not ship on Android devices.

The other 37 files were dismissed under the explanation, "somebody uploaded it by mistake and it should simply be deleted."

Doesn't look good for Google

Responding to those defense arguments, Engadget wrote that, "from a technical perspective, these objections are completely valid," but that, "from a legal perspective, it seems very likely that these files create increased copyright liability for Google."

That report concluded, "the single most relevant legal question is whether or not copying and distributing these files was authorized by Oracle, and the answer clearly appears to be 'nope' -- even if Oracle licensed the code under the GPL.

"Why? Because somewhere along the line, Google took Oracle's code, replaced the GPL language with the incompatible Apache Open Source License, and distributed the code under that license publicly. That's all it takes -- if Google violated the GPL by changing the license, it also infringed Oracle's underlying copyright."

This all happened before

If Android is found to have improperly distributed code that belonged to Oracle, whether or not it actually was used on handsets, it could be found liable for damages related to Google benefitting from using Oracle's code against the terms of the license(s) it was originally distributed under. That may force Google to pay Oracle licensing fees, royalties or a lump sum settlement, and would likely force Google to remove all infringing code in order to continue to offer a non-infringing version of Android for free.

A similar copyright case between Unix System Labs and BSDi in the early 90s resulted in the creation of a non-infringing version of BSD Unix, which was later incorporated by Apple in the development of Mac OS X in order to avoid needing to license the commercial version of Unix.

At the same time, the original USL vs. BSD trial and the removal of infringing Unix code from took so long to complete that development of BSD as a free version of Unix was surpassed by Linux, a parallel free workalike operating system that began just as BSDi was getting sued. The same could potentially happen to Android, were it held back by legal disruptions that gave an advantage to competing platforms that aren't encumbered with legal issues.

A similar case for WebM

While Google's Android case continues, the issues being raised also suggest similar potential problems for WebM, the VP8 codec Google acquired and released as royalty free software as an alternative to the open, but not free, H.264 specification backed by Apple, Nokia, and other hardware makers.

The company delivered WebM almost immediately after obtaining it, raising questions about how thoroughly the company reviewed its new code for possible intellectual property issues.

Regardless of how well Android and WebM hold up to scrutiny, the cases may likely change how companies, in particular Google, manage the distribution of their free and open software projects. Other companies, including Sun, Apple, Mozilla and others, have spent years reviewing code before making it available as open source, in order to avoid such problems.

The need for a clean room

Compaq, one of the first modern tech companies to create a copy of existing intellectual property (in its creation of a non-infringing, yet compatible version of IBM's original PC), similarly went through great pains to set up a "clean room" environment intended to replicate the functions of IBM's embedded software without incorporating any actual code or in any way "contaminating" those creating the copy with knowledge of how IBM's own original implementation worked.

In contrast, Google's development of Android occurred after hiring Sun's chief technology officer, Eric Schmidt, to serve as its chief executive in 2001. According to Google's own bio, Schmidt let the development of Java at Sun through 1997; Google has subsequently hired large numbers of former Sun employees, many of whom worked on Java.

Android itself originated from Danger (below), a licensed Java platform. After acquiring Android, Google decided to design Androids's virtual machine to run apps written in the Java language using the Java SE class library (take from Apache Harmony) using a modification of Sun's Java VM that the company believed would free it from having to pay Sun for a Java license in order to distribute it legally.

It appears there is considerable room for criticizing how Google has managed Android's source code, a problem that may complicate the future of the company's free platform just as it strives to take on competitors in the fast moving smartphone and tablet markets.
post #2 of 278
I never knew this was GoogleInsider. You'll need a new logo.

Anyway, since it doesn't "look good" for Google, I suppose they'll be run out of business, right? That'll happen.
post #3 of 278
Hardly surprising.

But hey, it's "open", so it's all good.
post #4 of 278
Quote:
Originally Posted by AppleInsider View Post

Following the discovery, a report by Ars Technica detailed that most the discovered files were part of a third party component's audio software that does indeed include code from Oracle, but which was never distributed as part of the Android OS on actual devices.

I'm not reading the headline "Google found distributing Oracle's Java code within Android project" as being accurate. The article itself says the code wasn't distributed to any devices. I guess it is technically "within the project". I don't see them removing the code as being a huge deal. Exactly how much would this kind of infringement cost them in damages based on the previous cases? How exactly was the code being distributed by Google? Was it buried in their code repository somewhere?
post #5 of 278
Quote:
Originally Posted by veblen View Post

I'm not reading the headline "Google found distributing Oracle's Java code within Android project" as being accurate. The article itself says the code wasn't distributed to any devices.

Regardless, the lawyers gonna love Google for this, keeps them busy.
post #6 of 278
Android does pride itself as the first to have "Copy and Paste" in a mobile OS.

Google's new motto: "CTRL-C, CTRL-V"
post #7 of 278
Dan, with all of the Google hate when do you post the article taking Apple Insider to task for having Evo, Xoom and Chrome ads running on the site? I mean, if Google is the enemy and Android is an evil ripoff of iOS then why run ads for their stuff right?
post #8 of 278
Could someone please take DED's keyboard away before he embarrasses himself any further?

"After acquiring Android, Google decided to design Androids's virtual machine to run apps written in the Java language using the Java SE class library (take from Apache Harmony) using a modification of Sun's Java VM that the company believed would free it from having to pay Sun for a Java license in order to distribute it legally."

WRONG. The Android platform uses the Dalvik VM, which is not a Java Virtual Machine. It's not a modification of the JVM. The Dalvik VM has a different instruction set than the JVM. Dalvik is register-based; the JVM is stack-based.

Can't DED get the basic facts right? He should at least read the bloody Wikipedia page before banging out his fanboy screeds.
post #9 of 278
This Engadget article has already been debunked. What a horrible story.
post #10 of 278
Quote:
Originally Posted by veblen View Post

I'm not reading the headline "Google found distributing Oracle's Java code within Android project" as being accurate. The article itself says the code wasn't distributed to any devices. I guess it is technically "within the project". I don't see them removing the code as being a huge deal. Exactly how much would this kind of infringement cost them in damages based on the previous cases? How exactly was the code being distributed by Google? Was it buried in their code repository somewhere?

Even if the software was not distributed with any handsets, it's the fact that Google took license software and distributed it under a different open-source and incompatible license. This example is extreme but it would be like taking excel and posting it as open-source and distributing it under a new open-souce license, deleting Microsoft's license in the process.
post #11 of 278
Quote:
Originally Posted by veblen View Post

I'm not reading the headline "Google found distributing Oracle's Java code within Android project" as being accurate. The article itself says the code wasn't distributed to any devices. I guess it is technically "within the project". I don't see them removing the code as being a huge deal. Exactly how much would this kind of infringement cost them in damages based on the previous cases? How exactly was the code being distributed by Google? Was it buried in their code repository somewhere?

Was Oracle's copyright code published by Google, without the express permission of Oracle?

As the code exists or existed in repositories managed by Google the answer is yes.

Now it's up to a judge to determine if Google is guilty.
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Better than my Bose, better than my Skullcandy's, listening to Mozart through my LeBron James limited edition PowerBeats by Dre is almost as good as my Sennheisers.
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post #12 of 278
Quote:
Originally Posted by Radjin View Post

Even if the software was not distributed with any handsets, it's the fact that Google took license software and distributed it under a different open-source and incompatible license. This example is extreme but it would be like taking excel and posting it as open-source and distributing it under a new open-souce license, deleting Microsoft's license in the process.

I read you Radjin. But how did they distribute it if it wasn't in the code base that vendors and customers were downloading and compiling on their android headsets? Where was it distributed? I'm not saying it wasn't distributed.

I think your example of Excel is an extreme case. What we are talking about here are some test files that aren't even central to the distributed product. To me if this is the best stuff that Oracle has to sue Google with I think the suit is pretty petty.
post #13 of 278
Quote:
Originally Posted by hill60 View Post

Was Oracle's copyright code published by Google, without the express permission of Oracle?

As the code exists or existed in repositories managed by Google the answer is yes.

Now it's up to a judge to determine if Google is guilty.

I can put code in a repository and not distribute it to anyone else without violating a license can't I?
post #14 of 278
Quote:
Originally Posted by Radjin View Post

Even if the software was not distributed with any handsets, it's the fact that Google took license software and distributed it under a different open-source and incompatible license. This example is extreme but it would be like taking excel and posting it as open-source and distributing it under a new open-souce license, deleting Microsoft's license in the process.

Google didn't take the code and place it in the source tree, a third party did. Does that remove liability for Google? No, it doesn't but Daniel's wet dream that Google will have to fork over truck loads of cash or possibly even abandon Android is far from certain.

I'm not a or a lawyer and oddly enough neither is Daniel. A Court will decide if Google's use of Java to code and compile Android applications is infringes Sun patents or not.

To this very day I am stunned that Google let Oracle get Sun. Perhaps they tried and failed but it was a gigantic miss regardless of the circumstances.
post #15 of 278
Quote:
Originally Posted by hill60 View Post

Was Oracle's copyright code published by Google, without the express permission of Oracle?

As the code exists or existed in repositories managed by Google the answer is yes.

Now it's up to a judge to determine if Google is guilty.

I think if the code existed in Google's repositories and people downloaded from there they are guilty of distributing some of Oracle's code in violation of their license. But what would the damages be? Don't you need to show that you were financially harmed to get a decent amount in damages? If the code wasn't widely distributed and wasn't actually used in the code that Google received money from how high could the damages really be?
post #16 of 278
And here we go again.

That's it, Appleinsider feed is off my reader. Goodbye.
post #17 of 278
Regardless, Oracle has a reputation for fiercely protecting it's IP. Look at what they just did to SAP? My guess is that Larry Page will decide it's not worth the liability and legal fees and settle with Oracle. Google took a huge risk by providing a non-licensed implementation of Java. RIM choose to license JVM, from Sun, several years ago while Apple decided to forgo Java, on iPhone, altogether. When Microsoft tried to ship a non-Sun version, of Java, they sued by Sun and eventually settled out of court (for billions). What makes you think Google is going to get away with no penalty? In any case, in order for a copyright to be enforceable the holder must demonstrate a willingness to protect it. This is a no lose for Oracle and probably a huge payout for Google. This is only my personal opinion. In the spirit of full disclosure I am an ex-Sun employee (I don't work for Oracle)...
post #18 of 278
Quote:
Originally Posted by dualaub2006 View Post

Dan, with all of the Google hate when do you post the article taking Apple Insider to task for having Evo, Xoom and Chrome ads running on the site? I mean, if Google is the enemy and Android is an evil ripoff of iOS then why run ads for their stuff right?

I wouldn't question Dan, but I've also noticed this a long time ago.

Most recently their annoying 'sound always on' adds... Thankfully only happened for one day. At least that I noticed.
post #19 of 278
Quote:
Originally Posted by veblen View Post

I can put code in a repository and not distribute it to anyone else without violating a license can't I?

No you cannot.
post #20 of 278
Quote:
Originally Posted by veblen View Post

I'm not reading the headline "Google found distributing Oracle's Java code within Android project" as being accurate. The article itself says the code wasn't distributed to any devices. I guess it is technically "within the project". I don't see them removing the code as being a huge deal. Exactly how much would this kind of infringement cost them in damages based on the previous cases? How exactly was the code being distributed by Google? Was it buried in their code repository somewhere?

Let's say it's $1.00 per activated device. Then those activated devices per day add up pretty quick don't they? Even if it's $.50 per device....
post #21 of 278
Quote:
Originally Posted by Aeolian View Post

Let's say it's $1.00 per activated device. Then those activated devices per day add up pretty quick don't they? Even if it's $.50 per device....

Sorry, forgot to mention that most of these rulings are "retroactive."
post #22 of 278
Quote:
Originally Posted by dualaub2006 View Post

No you cannot.

Can you explain further please? The brief snip of the license I saw in the article stated not to redistribute the code. Can't you have the files containing the code on your system? My understanding is that most source code repositories just link to existing files or copy them to new locations and track changes. Most also aid in distribution of the code, but distribution isn't always necessary. If the license says I can use the code but not redistribute it how am I violating the license by simply having the code in multiple locations and tracking changes to it? Wouldn't it be at the point at which I redistributed the code be where the license is violated?
post #23 of 278
Quote:
Originally Posted by veblen View Post

Can you explain further please? The brief snip of the license I saw in the article stated not to distribute the code. Can't you have the files containing the code on your system? My understanding is that most source code repositories just link to existing files or copy them to new locations and track changes. Most also aid in distribution of the code, but distribution isn't always necessary.

I'll try to explain. Say you write a book that sells millions. A NYT best seller. Then some one takes a chapter of yours and writes a whole book based on it. This is very similar to CopyWright laws. Trying to explain this to the judge is where it all gets messed up. IMHO.
post #24 of 278
From the articles I've read, the code in question wasn't part of any distributed version of Android. If this is true, then I don't see how Android can be found to infringe them.

If Google was distributing these files from their servers contrary to the original license the files were subject to, then that has nothing to do with Android.

If I wrote some source code, licensed it to Microsoft under terms that they not re-distribute it, and then Microsoft posted it to the web but didn't actually use it in any of their products, I couldn't then turn around and ask for a cut of Microsoft Office profits. One has nothing to do with the other.
post #25 of 278
Quote:
Originally Posted by Aeolian View Post

I'll try to explain. Say you write a book that sells millions. A NYT best seller. Then some one takes a chapter of yours and writes a whole book based on it. This is very similar to CopyWright laws. Trying to explain this to the judge is where it all gets messed up. IMHO.

In this instance Google didn't take a chapter of Oracle's code and write a whole book based on it. I don't read anywhere that Google actually used the code at all. The code just existed on some branch of a repository they hosted apart from their main codebase. If they had used the code and it was central to the product they shipped I think Google would be in big trouble because Oracle could show they were financially damaged. I just don't see the damage done in this instance.
post #26 of 278
Quote:
Originally Posted by veblen View Post

Can you explain further please?

Google DID distribute the code. Even if the only people that downloaded those files were the bloggers that were looking in to this that is distribution. Google didn't just have them on some internal server. The license was stripped and replaced by the Apache license and they were placed in the source tree of Android. That is a problem for Googke regardless who actually uploaded the files.
post #27 of 278
Quote:
Originally Posted by dualaub2006 View Post

Google DID distribute the code. Even if the only people that downloaded those files were the bloggers that were looking in to this that is distribution. Google didn't just have them on some internal server. The license was stripped and replaced by the Apache license and they were placed in the source tree of Android. That is a problem for Googke regardless who actually uploaded the files.

I asked

"I can put code in a repository and not distribute it to anyone else without violating a license can't I?"

You replied "No you cannot."

Your explaining that Google did distribute the code doesn't answer my question. I agree it was the act of distributing the code under a different license that would be the problem for Google. But how does this explain why I can't put code in a repository, not distribute it to anyone and violate the license.
post #28 of 278
No you can ask for statutory damages. That used to be $100, 000 per infringing copy. Might still be that high, or possibly higher.

Quote:
Originally Posted by veblen View Post

I think if the code existed in Google's repositories and people downloaded from there they are guilty of distributing some of Oracle's code in violation of their license. But what would the damages be? Don't you need to show that you were financially harmed to get a decent amount in damages? If the code wasn't widely distributed and wasn't actually used in the code that Google received money from how high could the damages really be?
post #29 of 278
Quote:
Originally Posted by TBell View Post

No you can ask for statutory damages. That used to be $100, 000 per infringing copy. Might still be that high, or possibly higher.

Thanks I'll take a look at statutory damages. Are there any infringing copies though? The code wasn't in the copies of the software that shipped. There isn't any evidence that Google actually used it.
post #30 of 278
Quote:
Originally Posted by veblen View Post

I asked

"I can put code in a repository and not distribute it to anyone else without violating a license can't I?"

You replied "No you cannot."

Your explaining that Google did distribute the code doesn't answer my question. I agree it was the act of distributing the code under a different license that would be the problem for Google. But how does this explain why I can't put code in a repository, not distribute it to anyone and violate the license.

I missed the not distribute part of your first post. In your second post, you are describing the act of making available which Googke had no right to do. It is licensed code that Googke stripped attribution and license from and then open sourced. In your third post you are back to not distributing the code, merely archiving it.

A) Google did it.
B) Your scenario of non-distribution is not relevant to the discussion.
post #31 of 278
You don't need to show damages for copyright infringement. When the RIAA sues people downloading songs, it obtains huge judgements without showing damages. In those cases, it is impossible to show damages.

Google is likely in trouble because not only did it distribute the Code, but it used the code internally to help build the OS.

It did what manufacturers do with prototypes sometimes. For example, with a concept car generally only the body and interior are new designs. That is what the public sees. To show the concept in operation, companies will use underlining parts (generally their own parts) from other cars to make the vehicle functional. If the car is brought to market, then the borrowed parts are replaced by parts actually designed for the concept. Companies aren't going to design a concept product from the ground up just to show case a potential product.

So, Google was likely borrowing Oracle's Code to save it time putting together a functional version of Android. Google likely started by creating the pretty GUI parts, but borrowed Oracle's code as the engine for testing and showcasing purposes. Google could test a working version of Android and slowly replace the borrowed code.

Since Google's use of Oracle's Code was essentially commercial in nature, it likely is in hot water. Borrowing Oracle's Code benefitted Google commercially because it probably saved Google a lot of time developing Android.



Quote:
Originally Posted by veblen View Post

In this instance Google didn't take a chapter of Oracle's code and write a whole book based on it. I don't read anywhere that Google actually used the code at all. The code just existed on some branch of a repository they hosted apart from their main codebase. If they had used the code and it was central to the product they shipped I think Google would be in big trouble because Oracle could show they were financially damaged. I just don't see the damage done in this instance.
post #32 of 278
If you want, see my other post. Google doesn't need to ship an actual product to be found liable for copyright infringement. The copying and distribution of the code is probably enough. Moreover, the issue likely will center around whether using the code benefitted Google in some commercial fashion. If Google used the code in some fashion that didn't benefit it commercially and that didn't hurt Oracle commercially, Google probably would be OK. However, Google probably did benefit commercially. If the allegations are true, it likely used the code to both expedite the development of Android and show a concept without having to have the whole product finished. Both activities commercially benefitted Google.

Quote:
Originally Posted by veblen View Post

Thanks I'll take a look at statutory damages. Are there any infringing copies though? The code wasn't in the copies of the software that shipped. There isn't any evidence that Google actually used it.
post #33 of 278
Quote:
Originally Posted by dualaub2006 View Post

I missed the not distribute part of your first post. In your second post, you are describing the act of making available which Googke had no right to do. It is licensed code that Googke stripped attribution and license from and then open sourced. In your third post you are back to not distributing the code, merely archiving it.

A) Google did it.
B) Your scenario of non-distribution is not relevant to the discussion.

No worries on missing the distribute part.

In reference to B) I believe one of the arguments Google was making was that some of the files were only used on internal test devices and were not distributed to external parties.

You mentioned that even if the only people who Google distributed the code to were bloggers who just analyzed it for copyright issues that Google was guilty. I agree, but in this scenario what financial damage did this do to Oracle and what did Google gain from the infringement? This just looks like a little nit picky error that lawyers are going to make a big deal about. Little mistakes like this happen all the time. To me this just makes Oracle look like a patent troll.
post #34 of 278
LOL. Java code is not the only thing Google (allegedly) stole for Android.

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post #35 of 278
Quote:
Originally Posted by Wurm5150 View Post

Android does pride itself as the first to have "Copy and Paste" in a mobile OS.

Google's new motto: "CTRL-C, CTRL-V"

Nice.

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post #36 of 278
If you do an Internet search of copyright and statutory damages, you will get quite a few relevant hits. Wikipedia breaks it down nice. The formula is a bit more involved then I suggested before. For willful infringement, if Wikipedia is currently correct, a court can award up to $150, 000 for one instance of infringement (I think it may have been upped to $250, 000, but I am too lazy to dig through the copyright code right now).

Generally it is lower though, ranging from $750 to $30, 000 for each instance. Keep in mind the lower amounts are when you didn't intent to violate the copyright. Yes, that is right, intending to violate the copyright law isn't a requirement to be found liable.

Quote:
Originally Posted by veblen View Post

Thanks I'll take a look at statutory damages. Are there any infringing copies though? The code wasn't in the copies of the software that shipped. There isn't any evidence that Google actually used it.
post #37 of 278
Quote:
Originally Posted by dualaub2006 View Post

Dan, with all of the Google hate when do you post the article taking Apple Insider to task for having Evo, Xoom and Chrome ads running on the site? I mean, if Google is the enemy and Android is an evil ripoff of iOS then why run ads for their stuff right?

Um, because the ads on this site are served by Google Ads, actually. And those Android products need all the advertising they can get

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post #38 of 278
Quote:
Originally Posted by TBell View Post

If you want, see my other post. Google doesn't need to ship an actual product to be found liable for copyright infringement. The copying and distribution of the code is probably enough. Moreover, the issue likely will center around whether using the code benefitted Google in some commercial fashion. If Google used the code in some fashion that didn't benefit it commercially and that didn't hurt Oracle commercially, Google probably would be OK. However, Google probably did benefit commercially. If the allegations are true, it likely used the code to both expedite the development of Android and show a concept without having to have the whole product finished. Both activities commercially benefitted Google.

Those are all good points. You explained yourself very well. I think where we disagree here is in the commercial benefit of the code in question. If I'm understanding correctly these were simply test files uploaded by a third party (not google) which were not central to the product and which could simply be deleted from their repository because they were included by mistake. Simple mistakes like this happen. I haven't read that these files were used to expedite the development and show a concept without having to have the whole product finished. I guess we'll see.
post #39 of 278
Google has a history of infringing on IP. Didn't they and they alone try to distribute all books for free without any consideration for the publishers and authors?
post #40 of 278
Quote:
Originally Posted by TBell View Post

You don't need to show damages for copyright infringement. When the RIAA sues people downloading songs, it obtains huge judgements without showing damages. In those cases, it is impossible to show damages.

Google is likely in trouble because not only did it distribute the Code, but it used the code internally to help build the OS.

No, Google didn't use that code on Android never. This was a zip file from a 3rd party Open Handset Alliance used by them for testing before they submitted to Android code base. It's explained on Ars Technica post
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