Thursday, May 26, 2011

Google hires third law firm to defend against Oracle

With a view to a possible trial in five months, Google just added a third law firm to the legal team defending it against Oracle's patent and copyright infringement claims. That firm is named Keker & van Nest LLP. Given its reputation and specialization, and considering that the related notice of appearance for six of that firm's lawyers was filed the day after Judge Alsup issued his case management order for the next months, this is a clear sign that Google is getting ready for a possible trial, which will (unless there are delays or the case is stayed) begin on October 31, 2011 and last three weeks.

Oracle has been represented from the start by two firms: Morrison & Foerster and Boies, Schiller & Flexner. I believe Oracle is pleased with the progress it has made, which is why we see so much continuity on their side.

For the first eight months, Google relied exclusively on King & Spalding. Earlier this month I noticed for the first time that Google added Greenberg Traurig's Heather Meeker. She's a specialist in open source legal matters (who accurately pointed out in her book The Open Source Alternative that the GPL is "irretrievably ambiguous" in connection with what's called the copyleft border dispute) and outside counsel to the Mozilla Foundation. She furthermore advocates the patentability of software, by the way.

Given that open source issues already came up in Google's answer to Oracle's complaint, it would probably have made sense to have Meeker involved even earlier.

Generally, the best lawyers will be total professionals and always cooperate well with additions to the team. It's not unusual for big corporations to hire two or three law firms in connection with a major dispute. It may sometimes make sense to bring in additional expertise for different stages of a litigation, or depending on what the priority issues turn out to be as the case unfolds. But it can also be a reflection of unease and of a lack of faith in the original litigation team's abilities as the decisive stage is nearing.

A firm for tough make-or-break cases

Now Google brought in a third firm, and this is how that firm describes its focus on its homepage:

"We take the tough cases -- the make or break cases where companies, careers, and reputations are riding on the result. True to our roots as trial lawyers, we relish the courtroom battles. Still, whether we go to trial, settle, or just make the problem go away, what matters is obtaining the best result for our clients."

The first sentence about "make or break" and companies and careers being on the line raises the question of how much is at stake for Google here. Obviously, any somewhat realistic worst-case scenario would still enable Google to stay in business. But the stakes are high indeed. Maybe Oracle will want Google to make technical changes that would require rewrites of many applications. In case the only way Google can settle with Oracle involves a high per-unit royalty, Google may feel forced to determine that it can no longer publish any Android code on open source terms in an economically viable way. There comes a point when patent licensing costs are so high that Google can no longer give Android away in order to generate revenues through mobile advertising and services.

Google does not adhere to open source rules religiously. It gave Android version 3.0, codenamed Honeycomb, only to select device makers without publishing the source code or even specifying a date for its publication. Google also habitually removes GPL copyright/copyleft notices from header files. But many open source thought leaders are inclined to turn a blind eye to Google's actions, essentially saying that (as Linus Torvalds did) while they haven't even looked at the details, they trust everything's fine. Not one of them actually stood up and guaranteed that there's legal certainty regarding Google's compliance with the GPL. But a lot of people look at Android as an open source success story even though the way Google bullies its hardware partners became particularly evident in the ongoing Skyhook case (accurately called an "Android not open" suit by The Register's Cade Metz) and was summed up very well by FastCompany:

"Open" just ain't the word.

Oracle's lawsuit has implications that go way beyond philosophical debates that mostly take place within the open source community. Just that one lawsuit could force Google to depart from its open source business model for Android (and there are many other Android-related patent infringement suits, 42 so far by my count).

While Android isn't even truly open now, the economic implications of this could become the final nail in the coffin of Android's positioning as an open source mobile operating system. Google might have to pass Oracle's royalty on to device makers and charge them, putting Android exclusively under a commercial license. The possible end of Android's already questionable openness is a make-or-break situation of the kind Keker & van Nest's lawyers love to take on.

Keker & van Nest's past work for Google and Oracle

That San Francisco litigation firm has done some work for both parties before. I found this article, which declared Google's legal department the best one of its kind in 2011 and mentions Keker & van Nest's involvement with a case related to "orphan books". Another article reports on a spin-off from Keker & van Nest, which resulted in the creation of the Durie Tangri firm. Google is mentioned among companies that would be expected to continue to use Keker & van Nest (though they now also work with Durie Tangri). The Legal 500 directory lists both Google and Oracle among Keker & van Nest's clients, and describes as one of the highlights of John Keker's work his "2005 representation of Google against Microsoft in a high-profile trade secret case."

Apparently Keker & van Nest believes that the work it previously did for Oracle doesn't create a conflict in connection with this case. Maybe those cases were about different patents and copyrights than the ones at issue in the Google case.

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