Google fighting to suppress evidence Android willfully infringed upon Oracle's Java

Posted:
in iPhone edited January 2014
Apple's primary competitor in smartphone platforms is facing critical new evidence that indicates Google willfully infringed upon Java to develop Android, a finding that could damage Google's efforts to defend Android from additional patent claims from Apple and others.



According to reports by Florian Mueller of FOSS Patents, the evidence in question centers around two emails, including one from Google's Andy Rubin, the original founder of the Android startup Google acquired to begin its smartphone platform.



Rubin first founded Danger as a mobile Java platform and subsequently started work on Android before it became part of Google, where Android shifted from a full Java platform to a modified version that Google intended to be different enough to avoid paying Sun any licensing fees.



Andy Rubin's other definition of open



Back in 2005, well before Android was released, Rubin wrote, "If Sun doesn't want to work with us, we have two options: 1) Abandon our work and adopt MSFT CLR VM and C# language - or - 2) Do Java anyway and defend our decision, perhaps making enemies along the way."



Regarding that email, Mueller noted that the judge overseeing the case observed, "Google may have simply been brazen, preferring to roll the dice on possible litigation rather than to pay a fair price [to license Java]."



Rubin's email suggests that the Android group was fully aware that it had already invested a lot of work into its Java-related platform, too much so to shift to the adoption of Microsoft's alternative language and runtime.



However, Google also rejected a deal with Sun to pay for Java licensing, and Rubin's comments make it clear that the company planned to just keep going and see what would happen, inviting "enemies," and, presumably, their legal response.



"We need to negotiate a license for Java"



Nearly five years later, a second internal Google email known as the "Lindholm draft" stated, "What we've actually been asked to do (by [Google founders] Larry [Page] and Sergey [Brin]) is to investigate what technical alternatives exist to Java for Android and Chrome. We've been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need."



That email caused federal judge Alsup to observe in a hearing that, as Florian reported, "a good trial lawyer would just need that document 'and the Magna Carta' (arguably the origin of common law) to win this case on Oracle's behalf and have Google found to infringe Oracle's rights willfully."



Publicly, Google has accused Oracle (which now owns Sun's Java) along with Apple and Microsoft, of "a hostile, organized campaign against Android [?] waged through bogus patents," without ever acknowledging that the company itself had determined that Android legitimately needed to license Java and yet simply refused to do so.



Google attempted to bury the documents in question in its case with Oracle, claiming that the Lindholm message was protected by attorney client privilege. Instead, Judge Alsup denied Google's request, noting that it was "an incomplete draft of an e-mail message? which ?never was sent to anyone," according to a report by Bloomberg .



When pressed to explain the email by Bloomberg, Google spokesperson Katelin Todhunter-Gerberg, stated, "We aren?t commenting on this.?



Google's willful infringement could ease suits against Android by Apple, others



While Oracle is unlikely to be awarded the staggering $2.6 billion damages claim it originally demanded for Google's infringement of Java by Android, the fight between the two is almost certainly going to be aimed at determining a workable settlement, rather than questioning whether Google's Android actually infringes upon Java.



Such a settlement would likely involve steep, ongoing Android royalties for Oracle, which like Microsoft, has largely been shut out of the smartphone market by Google's dissemination of the freely available Android. Once the primary development platform among mobile phones, Oracle's Java (still licensed by Nokia's Symbian and RIM's BlackBerry) has been bumped down into third place behind all Android licensees combined and Apple's iOS.



While the judge overseeing the case has instructed Oracle to rewrite its damages report, the court did not agree with Google that its advertising revenue should be off the table in determining Oracle's damages. Instead, the judge accepted Oracle's "network affects theory," stating that Oracle "may take into account at least some of Defendant's non-mobile, American-based businesses in formulating its damages assessment."



A finding that Google willfully infringed upon Java would also enable Oracle to demand triple its actual damages. Such a ruling could also help establish that Google has a history of willful infringement of rival companies' intellectual property, a finding that would make it easier for others, including Apple and Microsoft, to seek damages from Google and potentially its Android licensees.



Additional sources of pain for Google



Google's vast revenues from Internet advertising would likely allow the search giant to easily pay off such damage claims, but Android licensees may balk at enmeshing themselves with Google and its ostensibly open software because of the legal liability involved with it.



As Google itself has feared, adding royalty fees to Microsoft and Oracle into Android licensing may prevent potential licensees from seeing any benefit to using Google's version of the Linux/Java/Flash mobile software platform, and encourage some companies to develop their own unique platforms instead, as Samsung as already done with Bada, as HP has opted to with with webOS, as Nokia has with its involvement with Microsoft, and as Motorola has in its custom Linux platform efforts.



The appearance of multiple mobile platforms would likely benefit Apple, which has always performed better within a competitive market as opposed to battling a single large monopoly platform. A legal dispute that holds back Android could also give a competitive edge to the joint partnership of Nokia and Microsoft, as well as promote Oracle's legitimate JavaME as a stronger contender. In the high end smartphone space, however, a blow to Android would clearly be a tremendous opportunity for Apple, given the distant, flagging positions of Nokia, RIM, HP/Palm, and Microsoft.







Legal issues surrounding BSD Unix in the early 1990s similarly helped to pave the way for the unobstructed growth of Linux, giving that platform a head start that blunted interest in BSD for decades until Apple's rise in prominence over the last five years helped to again establish BSD as one of the largest deployed UNIX kernels.



Oracle's case against Google continues to carry an October 31 trial date, which may push the companies toward a settlement. On the other hand, Oracle is unlikely to want to give up easily, and may push for a stay in the case for an opportunity to expand its damage claims. Additionally, Oracle could opt to bring action against Google before the ITC, where it could threaten to win an injunction against the US import of Android phones, a bargaining technique that would be devastating to Google's mobile aspirations.
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Comments

  • Reply 1 of 353
    "where it could threaten to win an injection against the US import of Android phones, a bargaining technique that would be devastating to Google's mobile aspirations."



    I think you mean injunction.



    I am a big fan of appleinsider for tracking apple more accurately than any other source of which I am aware. Still, shouldn't someone be proofreading these articles before posting?
  • Reply 2 of 353
    Google's whole "Don't be Evil" edifice is crumbling.



    The hypocrisy of Google's attack on the patent system is breathtaking. Google, like most companies, attract early investors by having patented IP, and their continued success is based on their search IP that protects its advertising revenue.



    Google, if it is ok to steal everyone else's IP surely you won't mind if others steal your search IP and erode your revenue?
  • Reply 3 of 353
    There's an irony to be found here. If Google should happen to win, it'll be a massive blow to open-source. To my recollection, the violating code was open-source licensed, but they removed the license. A win for Google sets precedence that this can be gotten away with, pretty much destroying any legal strength behind open-source licenses for good.
  • Reply 4 of 353
    lamewinglamewing Posts: 742member
    I am not a big fan of Apple (the company), but I am a fan of their hardware and software. So I have a love/hate relationship with Apple.



    After reading more and more about Google's actions I am seriously considering dumping everything Google in my life. Why does Google's action's bother me more than if another company were to to the same thing? Because of Google's motto "Don't be Evil". If they choose to use this motto (unofficial or not) I expect them to follow through.



    Transitioning to a Google-free life will not be an easy process. My email is 100% Google. One of my smart phones is a Sony Xperia X10a running Gingerbread. I use Google Voice/Google Docs/Google Maps/Google Translate...etc. My browser of choice on both Mac and PC is Chrome.



    All Google would have to do (for me) is to admit what they did wrong and then make the appropriate actions to fix the situation. Yes, it would cost money to pay the licences, but they should have done this long ago.
  • Reply 5 of 353
    asciiascii Posts: 5,941member
    How does the Go programming language fit in to this picture? If you look at the Go download page it says it can compile to ARM Linux (though not yet optimised). http://golang.org/doc/install.html



    I wonder if it is their long term fallback position if Java gets too expensive.
  • Reply 6 of 353
    tundraboytundraboy Posts: 1,611member
    Are those emails/draft emails the veritable smoking guns that all prosecutors and plaintiffs counsels dream of?
  • Reply 7 of 353
    Quote:
    Originally Posted by tundraboy View Post


    Are those emails/draft emails the veritable smoking guns that all prosecutors and plaintiffs counsels dream of?



    Pretty much, as the judge presiding the case said so. Really, Oracle's lawyers need nothing more than these emails to win a huge settlement from a jury. The Google engineer claiming that all other languages "suck" and recommending licensing Java will tell a jury that Google was simply being stingy/arrogant/above the law.



    The only hope Google has is that the document can be rescinded (they are claiming attorney-client privilege), but that is not very likely.
  • Reply 8 of 353
    cloudgazercloudgazer Posts: 2,161member
    Quote:
    Originally Posted by ascii View Post


    How does the Go programming language fit in to this picture? If you look at the Go download page it says it can compile to ARM Linux (though not yet optimised). http://golang.org/doc/install.html



    I wonder if it is their long term fallback position if Java gets too expensive.



    Go isn't a suitable replacement for Java. Go isn't even object oriented. Go is more about Google's back end technology stack's long term future than it is about android.
  • Reply 9 of 353
    cloudgazercloudgazer Posts: 2,161member
    Quote:
    Originally Posted by mbarriault View Post


    There's an irony to be found here. If Google should happen to win, it'll be a massive blow to open-source. To my recollection, the violating code was open-source licensed, but they removed the license. A win for Google sets precedence that this can be gotten away with, pretty much destroying any legal strength behind open-source licenses for good.



    The copyright part of the case isn't really very important at this point- except as part of the general pattern to show that Google was wilfully infringing IP. They removed the egregious copyright violation and they will probably win their case that they can copy the API prototypes without infringing copyright - it's certainly common enough.
  • Reply 10 of 353
    pokepoke Posts: 506member
    Quote:
    Originally Posted by lamewing View Post


    I am not a big fan of Apple (the company), but I am a fan of their hardware and software. So I have a love/hate relationship with Apple.



    After reading more and more about Google's actions I am seriously considering dumping everything Google in my life. Why does Google's action's bother me more than if another company were to to the same thing? Because of Google's motto "Don't be Evil". If they choose to use this motto (unofficial or not) I expect them to follow through.



    Transitioning to a Google-free life will not be an easy process. My email is 100% Google. One of my smart phones is a Sony Xperia X10a running Gingerbread. I use Google Voice/Google Docs/Google Maps/Google Translate...etc. My browser of choice on both Mac and PC is Chrome.



    All Google would have to do (for me) is to admit what they did wrong and then make the appropriate actions to fix the situation. Yes, it would cost money to pay the licences, but they should have done this long ago.



    I've been following the tech industry for years and Google is by far the most cynical, dickish company the industry has seen. Their whole business model is to use their ad revenue to acquire, copy or steal technology to enter other markets and destroy value. They're worse than Microsoft at its most belligerent. If there was ever a time when Google were the good guys, it was a long time ago, back when they were still operating out of a garage and didn't have any revenue.
  • Reply 11 of 353
    asciiascii Posts: 5,941member
    Quote:
    Originally Posted by cloudgazer View Post


    Go isn't a suitable replacement for Java. Go isn't even object oriented. Go is more about Google's back end technology stack's long term future than it is about android.



    It certainly started out as a back end language, but I was watching a talk by Rob Pike the other day where he said it has turned out to be more general purpose than they expected. And why would they be bothering with an ARM compiler at all if it was just for the back end?



    I'm not talking right now, but if push comes to shove with Oracle I wonder if it could have a touch GUI library added and migrate to the client side. Just a thought.
  • Reply 12 of 353
    jd_in_sbjd_in_sb Posts: 1,483member
    It's just a matter of time until Android becomes very expensive for handset makers to deploy. That makes Windows Phone 7 look a lot more attractive to them.
  • Reply 13 of 353
    poochpooch Posts: 768member
    Quote:
    Originally Posted by scottkrk View Post


    The Google's whole "Don't be Evil" edifice is crumbling.



    plus 1
  • Reply 14 of 353
    john.bjohn.b Posts: 2,717member
    Good luck trying to unring that bell, Google.



    Quote:
    Originally Posted by scottkrk View Post


    Google's whole "Don't be Evil" edifice is crumbling.



    This should finally put a stop to that whole "Don't Be Evil" fiction, since the Lindholm draft "outs" Larry Page and Sergey Brin as being in on it at the highest level. No longer will they be able to hide behind the notion that they had no knowledge of the sleaze going on around them.
  • Reply 15 of 353
    nvidia2008nvidia2008 Posts: 9,262member
    Quote:
    Originally Posted by tundraboy View Post


    Are those emails/draft emails the veritable smoking guns that all prosecutors and plaintiffs counsels dream of?



    To me it doesn't get any more smoking and any more gun than this. If both pieces of evidence continued to be deemed admissible in court then IMO Google will have to negotiate licensing. They can stall for as long as possible, but they will have to license Java at some stage. By then who knows, Android will no longer be "free and open and wonderful for all humanity" (not that it really was) but Google may charge manufacturers to license Android itself.
  • Reply 16 of 353
    nvidia2008nvidia2008 Posts: 9,262member
    Quote:
    Originally Posted by John.B View Post


    This should finally put a stop to that whole "Don't Be Evil" fiction, since the Lindholm draft "outs" Larry Page and Sergey Brin as being in on it at the highest level. No longer will they be able to hide behind the notion that they had no knowledge of the sleaze going on around them.



    Bingo.
  • Reply 17 of 353
    cloudgazercloudgazer Posts: 2,161member
    Quote:
    Originally Posted by ascii View Post


    It certainly started out as a back end language, but I was watching a talk by Rob Pike the other day where he said it has turned out to be more general purpose than they expected. And why would they be bothering with an ARM compiler at all if it was just for the back end?



    FIrst off there are two Go compilers. One is based on gcc and so naturally has an arm backend, along with backends for any other CPU in widespread use today and dozens that aren't. The other only supports ARM along with AMD and x86 and is based on the Plan 9 compiler. Given that ARM is a supported platform for Plan 9, it likely wasn't a big deal to add the backend support.



    Besides ARM makes a lot of sense for the backend, ARM cores have excellent performance/$ and have industry leading performance/watt.



    Quote:

    I'm not talking right now, but if push comes to shove with Oracle I wonder if it could have a touch GUI library added and migrate to the client side. Just a thought.



    They would have to do more than just add a GUI API for it, they'd have to make the language Object Oriented, no modern language for UIs can lack that. That's not a small change, though in principle they could add it as a pre-processor layer the way objective-C did, that probably wouldn't cut it for present requirements. Also would they really want to commit to ARM by going with a native compiled language rather than byte code? I doubt it.



    At this point, a switch like this would require effectively creating a brand new platform.
  • Reply 18 of 353
    paxmanpaxman Posts: 4,594member
    Quote:
    Originally Posted by lamewing View Post


    I am not a big fan of Apple (the company), but I am a fan of their hardware and software. So I have a love/hate relationship with Apple.



    After reading more and more about Google's actions I am seriously considering dumping everything Google in my life. Why does Google's action's bother me more than if another company were to to the same thing? Because of Google's motto "Don't be Evil". If they choose to use this motto (unofficial or not) I expect them to follow through.



    Transitioning to a Google-free life will not be an easy process. My email is 100% Google. One of my smart phones is a Sony Xperia X10a running Gingerbread. I use Google Voice/Google Docs/Google Maps/Google Translate...etc. My browser of choice on both Mac and PC is Chrome.



    All Google would have to do (for me) is to admit what they did wrong and then make the appropriate actions to fix the situation. Yes, it would cost money to pay the licences, but they should have done this long ago.



    Transitioning everything from one service to another, or to a variety of others, is difficult not just because the services may not be as good or mature, but because once you have everything set up in one way and you have gotten comfortable with it, change is a pain. Too many things to re-learn. Too time consuming. But I think you are being a little over dramatic here. Even if you grow to hate Google there is no need to ditch all things Google instantly. Just start to use alternative services and get used to them. Some are very good and when they don't measure up use Google. Stay your course but don't worry too much. In time you may find yourself g-free.
  • Reply 19 of 353
    Go isn't an option for a high-level phone UI development language. C# and the CLR and they would be beholden to MSFT forever, and hey are NOT friendly with MSFT. Mono is a possibility but the patent issues have not been tested in court, it works on Linux quite nice tho. With all the diversity in the Android hardware space, they need a Virtual Machine to abstract that HW layer. Google SHOULD HAVE licenced Java from Sun before the Oracle acquisition, under more favorable terms. They chose to risk it, possibly thinking Dalvik was different enough technology to get them through. The e-mails are definite proof they knew what they were getting into. I'm no fan of Oracle, but given Java's previous run-in with Microsoft ( which led to the development of C# in the first place ), it would have been the cheaper option when Sun needed the money.
  • Reply 20 of 353
    Quote:
    Originally Posted by lamewing View Post


    I am not a big fan of Apple (the company), but I am a fan of their hardware and software. So I have a love/hate relationship with Apple.



    After reading more and more about Google's actions I am seriously considering dumping everything Google in my life. Why does Google's action's bother me more than if another company were to to the same thing? Because of Google's motto "Don't be Evil". If they choose to use this motto (unofficial or not) I expect them to follow through.



    Transitioning to a Google-free life will not be an easy process. My email is 100% Google. One of my smart phones is a Sony Xperia X10a running Gingerbread. I use Google Voice/Google Docs/Google Maps/Google Translate...etc. My browser of choice on both Mac and PC is Chrome.



    All Google would have to do (for me) is to admit what they did wrong and then make the appropriate actions to fix the situation. Yes, it would cost money to pay the licences, but they should have done this long ago.



    You think you are conflicted? My day job is building Rich Client Web Applications for a major financial using Java on the server side, Google Web Toolkit for UI, to display on Desktops, iOS devices AND Android ( and make them look native ), with Oracle as the Database.



    *sigh*



    I have been a Java developer for... ever, since it was pre 1.0 in beta, possibly even Oak days. I should have been one of the first to jump on the Android bandwagon.. something just didn't sit right with the whole thing for me. It just reminded me of MSFT's diversion and subsequent litigation that keept me cautious.
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