James Lee Phillips
Oct 24, 2011

Who wins in delay for Oracle vs. Google?

Last week, Judge Alsup gave us two new reasons to view the Oracle vs. Google case in a new light.

 
Citing an upcoming (and unrelated) criminal case, the self-described "overworked" Judge announced on Wednesday his intention to vacate the Halloween trial date, several weeks after having originally warned of this possibility. Judge Alsup asked attorneys from both sides to consider alternate possibilities, which included getting a new Federal judge, getting the case reassigned to a magistrate court, and/or separating the case into individual patent and copyright cases.
 
However, Judge Alsup made time on the following day to rule on a particularly significant email from Google engineer Tim Lindholm. Not long before Oracle filed suit against Google, Lindholm had been asked about alternatives to potentially proprietary elements of Java. 
 
"We've been over a bunch of these, and think they all suck," wrote Lindholm. "We conclude that we need to negotiate a license for Java under the terms we need."
 
Lindholm's email had been made available to Oracle as part of the discovery process, but Google later attempted to assert privilege, apparently (and understandbly) believing that this was too close to an admission. 
 
In August, Magistrate Judge Donna Ryu had already ruled against Google's assertion, and Judge Alsup ultimately upheld this ruling.
 
 "Simply labeling a document as privileged and confidential or sending it to a lawyer does not automatically confer privilege," Alsup wrote.
 
The email in question is simply the latest in a number of statements that portray Google as clearly recognizing the thin legal line upon which Android rests. From the very beginning of its mobile operating system aspirations, Google actively sought to build Android upon a Java framework.
 
During the late 1990s, Sun Microsystems took several steps to reassure open software proponents about its "write once, run anywhere" Java framework (whose lurking nonfree elements were famously referred to as the "Java Trap" by open source pioneer Richard Stallman). Sun established the Java Community Process in 1999, offerred 1,600+ Solaris OS patents to the global open source community in 2005, and ultimately announced plans to release all Java source code under an open source license by 2007.
 
Sun's Harmony Project worked to create Java SE (J2SE, for Standard Edition), an implementation of Java that fully satisfied the 'copyfree' Apache 2.0 license.  At the same time, Google was in the initial stages of its Android project, which included class libraries from Harmony (J2SE), but did not use J2ME (Java mobile) runtime, compilation mechanism, or bytecode format. Sun seemed largely unconcerned of the patent aspects of Google's work, although there was significant worry that this would result in an increased risk of a 'fractured environment' for Java.
 
Sun had some reason to worry; approximately 10 years earlier, in the pre-open-source days, Microsoft had licensed Java but then added a number of features specific to Windows implementation. After a period of decreasing interopability, Microsoft's licensing deal with Sun expired -- and work on Java in any form was curtailed in favor of Microsoft's own .NET framework.
 
Google has claimed during the trial to have turned down an offer to pay $100 million for J2ME, and more recently admitted that they and Sun were close to a three-year, $28 million cross-licensing deal to develop the mobile platform. In return for certain elements of Java, Sun would have received "the right to use substantial Google IP," according to Google. 
 
When Oracle bought Sun in January of 2010, it bought Java -- in fact, it has been theorized (albeit without significant evidence) that Oracle was attracted by the prospect of asserting Java (as well as mySQL) patents.  Sun's prior openness had certainly created a vast playing field of potentially lucrative targets; Java made up a considerable portion of Windows Phone, BlackBerry, and Symbian. But none had quite the appeal of a certain cash-rich company whose mobile operating system had recently rocketed up in market share.
 
So on August 12, 2010, Oracle sued Google (Oracle of America Inc v Google Inc, in U.S. District Court for the Northern District of California). In addition to a (then-vague) copyright infringement claim, the patent infringement claim references seven patents including US Patent No. 5966702 ("Method And Apparatus For Preprocessing And Packaging Class Files"), US Patent No. 6910205 ("Interpreting Functions Utilizing A Hybrid Of Virtual And Native Machine Instructions") and US Patent No. RE38104 )"Method And Apparatus For Resolving Data References In Generated Code").
 
Google's defense was largely built around the fact that its implementation of Java, the Dalvik Virtual Machine, was a "clean room" implementation -- i.e., that Google preserved only the elements of Java that were demonstrably open-source under the Apache 2.0 license, while developing alternate solutions for the proprietary closed-source Java runtime, compilation mechanism, and bytecode format.
 
Over the course of the next several months, the open source community responded positively to Google's defense, and an unexpected boon came in June of 2011, when the US Patent and Trade Office (USPTO) ruled that a number of Oracle's patents were invalid. For a time, with the brunt of Oracle's claims blunted, many observers predicted a favorable licensing settlement from Google as the likely outcome. But then Google's own emails began to turn the tide against them.
 
"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." -- from a 2005 email by Google's Andy Rubin.
 
"'What's mine is mine and what's yours is negotiable,'" Judge Alsup interpreted in July of 2011, characterizing this as "Soviet-style negotiation...The test is not what the infringer actually bargained for but what reasonable parties would have negotiated. Google may have simply been brazen, preferring to roll the dice on possible litigation rather than to pay a fair price."
 
Still, the judge's ruling dismissed Oracle's attempt to conflate the Android OS as a whole -- including speculative future damages -- with the much smaller number of allegedly infringing elements of Android. By September of this year, Oracle's initial figure of $6.1 billion was revised to $2.3 billion, although nearly half of this still assumed $1.2 billion in damages for 2012. 
 
Google has yet to countersue, which has been interpreted as a weakness in its case. However, the company maintains that its latest Android release effectively satisfies Oracle's claims, or at the very least negates any future damages. 
 
"Only nine lines of allegedly copied code was even enabled on Android devices and all the allegedly copied code has either already been removed or disabled or will be removed from the imminent next release of the Android software," said Google, referring to last week's "Ice Cream Sandwich" release, which brings together the separate smartphone and tablet versions of Android into a single product.
 
Ironically, the much-lauded 'open' status of Android has resulted in a situation in which Google is becoming an increasingly minor stakeholder in their own product. In addition to Oracle's claims, Microsoft is jockeying to reap many of Google's rewards. Although simultaneously struggling to compete in a mobile OS market that is largely a duopoly between Google and Apple, Microsoft has also asserted patents to the point where Redmond takes a hefty cut of every Android phone that is sold.
 
Because Java (like Android itself) attracted many developers and companies by virtue of its open nature, many are following Google's fortunes in this arena. If forced to pay a hefty cost to Oracle as well as Microsoft, Google is certain to be exploring possibilities that minimize Java implementation in the future -- and undoubtedly other developers who work with Java are paying close attention.
 
To extend Judge Alsup's Soviet metaphor, Google has seemingly allowed itself to become simply a third-world country in the Intellectual Property Arms Race, unable to leverage its own patent portfolio to fend off the aggressive encroachment of less visible but more heavily armed opponents (e.g., Apple, Microsoft, Oracle). Having been shut out of the crucial Nortel auction, Google may have been positioned to ultimately be a  victim both of Android's open source ethos and its own success.
 
Google will have to pay more in development, and hardware partners will make less and less as revenue is diverted to licensing and legal challenges. Partners are suing each other in addition to competing with each other -- including the now-Google-owned Motorola Mobility -- and if the Apple vs. HTC case is any indication, the hardware partners can no longer count on receiving licensing or legal support from Google.
 
Even if Google does secure favorable Java licensing and a cash settlement that the company's reserves can easily handle, the precedent looks unfavorable for Android's stability. With Symbian and RIM's BlackBerry both falling quickly off the map, the gorilla in the room is Apple -- who has shown no sign of relinquishing its grasp on the smartphone and tablet market for the foreseeable future. The escalating patent wars may be the leverage that will render Google largely on the defensive for perhaps years to come.