Originally Posted by Prof. Peabody
First, you are making an irrelevant distinction between criminal illegality and contract breaking or infringement, when in the colloquial sense of the term (the way most people use in every day), both are "illegal." So while your distinction is technically accurate it is also irrelevant to what's being discussed. You are just doing your usual thing of running people over the coals for inaccurate speech.
The problem is that the inaccuracies build up. Once you accept infringement as theft, then it is indeed immoral and indeed criminal rather than merely illegal. I'm not running anybody over any coals, I'm just trying to keep some pretty significant distinctions clear.
Secondly, morals, ethics, and law are all inextricably intertwined. In many cases, things are made "illegal" expressly because of the fact that many people find the behaviour immoral. While I personally would agree that just because something is immoral (a necessarily subjective assessment), it doesn't have to be also illegal, the fact is that most of the time it is.
Things that are immoral are often illegal, things that are illegal are often immoral, some things are universally considered immoral, some things are universally considered illegal. I would agree that things that are universally considered immoral are also universally considered illegal - murder is the obvious example - but trying to take it further you get into very very sticky territory. There are too many exceptions for it to be a good argument.
As to the substance of the argument, what we are talking about here is clear evidence of wilful infringement. Google did what they did intentionally, and for clearly stated reasons that fail your standard. The evidence indicates rather clearly that Google knew they should develop their own language, but "didn't have the time" in their view to do so. That's not a legal defence and basically amounts to saying that they just couldn't be bothered to follow what they knew was the law.
Ok, there are some key points here. First off the problem isn't that Google didn't develop their own language. As far as I am aware there is no legal issue with the fact that the language front end to Dalvik is identical to Java, any more than there is an issue that Objective-C is a superset of C. The problems are more subtle than that.
The evidence definitely indicates that Google knew that they were infringing Sun/Oracle's patents, and if the patents end up holding up then that will indeed constitute wilful infringement, but we're not at that stage yet. The patents may well be invalidated in whole or in part, the rulings on them so far have not been in Oracle's favour. Can we really call wilful infringement of a patent which the USPTO has issued a preliminary ruling against inethical let alone evil?
They've also shown evidence of guilt in terms of the machinations they performed to cover things up.
They have a legal right to counsel, and they have a right to attorney client privilege. Whether or not the letter is admissible, Google's attempt to claw it back will almost certainly not be admissible as evidence of guilt. Their 'machinations' are entirely legal. By the way Oracle deleted a SUN executive's blog posting that had a potential negative impact on their case, but I didn't see any cries of cover-up from you then. Does that deletion indicate that they really did grant Google permission? Of course not, any good lawyer would have sought to remove it from view to avoid muddying the waters. Good legal tactics should never be mistaken for nefarious machinations.
Finally, your argument that supposes (without any evidence I might add), that the Googler's were coming from some moral high ground where they eschewed patents altogether, and were thus okay doing what they did because they did it in light of their belief that patents shouldn't exist, is just silly. In the first case there is ample evidence that they did not in fact believe this in the way they handle their own patents, and in the litigations they have been in in the past. Secondly, "wishing the laws were different" is not a defence, just as ignorance of the law can never be a defence either.
No, my argument only supposes that they felt that these particular patents were plausibly invalid. Given the USPTO's recent first office actions, that's not an entirely unreasonable argument now is it?
I don't think that there's any way that Google can claim that they've a historic opposition to software patents, though I would certainly like it if in future they lobbied hard against them. However I also don't think that one can ever call infringement, even wilful infringement of a patent immoral - because infringing - even wilfully - is often a reasonable legal tactic in the modern patent minefield.