Saturday, August 6, 2011

Oracle and Google keep wrangling over potentially impactful Lindholm draft email

During this month of August, Oracle's lawsuit against Google is mostly about Google's renewed attempt to have Oracle's copyright infringement allegations thrown out as well as a variety of discovery issues, such as Oracle's new court filing in Illinois in order to compel Motorola to testify on its Android application development and related matters.

Around midnight Friday/Saturday, several new documents related to this case were filed with the U.S. District Court for the Northern District of California, and the most important one of those filings is a joint letter by Oracle and Google concerning the so-called Lindholm email. I have uploaded that joint letter to Scribd.

I had not previously blogged about that discovery dispute because I thought it was going to be resolved quickly in Oracle's favor, but Google has apparently withdrawn the bone of contention from its discovery disclosures, prompting Oracle to demand that Google reproduce it (meaning that Google make it available once again). This is an urgent matter because it appears that the author of that document, a Google engineer and former Sun employee, is scheduled to make a deposition in the very near term.

Judge Alsup -- the federal judge presiding over this litigation -- attaches a great deal of importance to that particular document. At a recent hearing, he essentially said that 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. The judge told Google that "you are going to be on the losing end of this document" with "profound implications for a permanent injunction". Let me add that a finding of willful infringement would not only make an injunction much more likely than otherwise. It can also result in a tripling of whatever damages will be awarded.

The two potential killer emails: the Lindholm draft email and the Rubin email

This is the content of the Lindholm draft email:

"What we've actually been asked to do (by 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."

The judge's assessment of the importance of that document may be based in no small part on the psychological impact that he believes it would have on a jury. As far as the hard facts are concerned, that email is undoubtedly also very interesting, but I, for my part, found a certain email written by Android founder Andy Rubin even more revealing. In that one, Rubin outlined two options, the second one of which was apparently chosen: it amounted to going ahead with Java on an unlicensed basis, despite being fully aware of the risk of blowback at a later point in time ("Do Java anyway and defend our decision, perhaps making enemies along the way").

The Rubin email is almost five years older than the Lindholm email. At the time of the Rubin email, Android had not been released yet, but quite some development work had already been done at that point, so if the Android team had decided to switch to a non-Java programming language, it would have had to rewrite large parts of its software (the Rubin email describes this as "[a]bandon our work and [switch to .NET/C#]". By contrast, the Lindholm email was written in August 2010, shortly before Oracle's lawsuit against Google. At that point, the Android team had already developed far more Java-related code than five years earlier, but even more importantly, a huge number of Android applications had already been written in Java. Android's developers were way beyond the point of no return, and the assessment that all other alternatives "suck" has to be seen in light of that circumstance. There were significant switching costs (including a very significant delay) at the time of the Rubin email, but switching costs at the time of the Lindholm draft email were prohibitive.

It's certainly remarkable that those two emails show a consistent attitude: the Android team basically says "let's just infringe" whenever an intellectual property issue comes up. If they did this to Oracle, what about the intellectual property of other companies like Apple, Microsoft, eBay and Skyhook?

With respect to the suitability-to-task of non-infringing alternatives, the Rubin email suggests that the primary reason for which they forged ahead with Java on an unlicensed basis was just that they didn't want to drop a fair amount of code they had already written by then. That's not the same as believing that other platforms would have been less suitable-to-task in technical terms than Java.

For the determination of damages, the lack of a non-infringing alternative is a key question. The Lindholm draft email certainly gives that particular impression, but the point in time at which the lack of a non-infringing alternative can increase a damage award is actually the one at which a hypothetical licensing negotiation would have taken place if Google had tried to steer clear of infringement (i.e., prior to the launch of the product) -- not the circumstances shortly before the lawsuit was filed.

Of course, the combination of the Rubin email and the Lindholm draft email is very strong -- far stronger than any of the two documents on its own. Rubin's email contains more technical terminology -- perhaps too much of it to be easily understood by a jury the way industry experts would understand it. The Lindholm draft email with the expletive "suck" may indeed be more impactful at a jury trial.

By virtue of being just about a year old, the Lindholm draft email is also a powerful way to counter any claims that the situation in 2005 (at the time of the Rubin email) was different because of technical decisions made thereafter. The Lindholm draft email shows that there was awareness of an ongoing infringement even in August 2010. Furthermore, the Lindholm draft email shows that Google apparently didn't believe that Jonathan Schwartz, Sun's last CEO before its loss of independence, precluded Sun (now Oracle) from bringing any claims under an estoppel theory because of a 2007 blog post. On Slashdot, Chris Adamson (who was working with Sun on the site at the time, through a contract with O'Reilly) explained quite well why that blog post shouldn't be overrated. But the Lindholm draft email is a simpler way of showing that Google was aware of its infringement all the time.

Google's additional motives for fighting to suppress this piece of evidence

Google's lawyers go to extreme lengths to fight for the suppression of the Lindholm draft email from the public record. On July 28, they filed a motion for leave to move that the hearing transcript be redacted. That motion for leave was opposed by Oracle and, on August 1, denied by the judge, who said that there was no point in letting Google file a motion for the stated purpose since the document was not protected by attorney-client privilege for two reasons: it had not actually been addressed to a lawyer (though Google argues the final version was), and its substance doesn't warrant that privilege. On August 3, Google's lawyers tried again, asking Judge Alsup for "an opportunity to provide the Court with evidentiary support showing that the Lindholm draft is subject to the attorney-client privilege and/or the attorney work-product doctrine". The following day, Judge Alsup denied that request, too, stating that if Google had wanted to attach evidence to its July 28 motion, the offer was now "untimely", and if Google wanted the court to reconsider an order that had been issued (the one issued on August 1), it would fail to meet the criteria for reconsideration. There's obviously a significant hurdle if someone wants a judge to change mind on something on which he's already issued an order.

It seems that in between those two short shrifts from Judge Alsup, Google withdrew (or, as Oracle, calls this, "clawed back") the document from the evidence record. This resulted in Oracle asking the court to force Google to reproduce (in terms of "put back") that document. Oracle wrote to Judge Alsup on August 3, who declined that request because Oracle did not explain why it "has twice asked Google to re-produce the Lindholm document" even though it had previously been produced. Judge Alsup also pointed Oracle to the fact that Magistrate Judge Ryu handles all discovery disputes in this lawsuit at this stage. The joint letter that Oracle and Google now filed (dated August 5, but filed electronically shortly after midnight) is addressed to Magistrate Judge Ryu and raises this issue again. Google vehemently opposes Oracle's request for reproduction.

Why so much effort?

The potential impact of the Lindholm draft email on a possible trial (as discussed before) is undoubtedly huge. But that's not the only reason. I can imagine at least two additional reasons.

Google's lead trial lawyer wants to correct a mistake

It seems that Google's lawyers want to correct a mistake they made at a recent hearing. There were two hearings on the same day (July 21). One of them was a conference call with Magistrate Judge Ryu, and the other one was a court session chaired by Judge Alsup -- in public, with several journalists in the audience. Apparently, the Lindholm draft email was quoted by Oracle on both occasions. Google's lawyers now claim that Oracle didn't have the right to quote from that email in those hearings. But Oracle holds against Google's lawyers how they -- and especially their leader, Robert van Nest -- reacted to Oracle's quotes from that document. I guess van Nest now regrets what he said because it was counterproductive. He essentially admitted that the Lindholm document was a response to a question raised by Google's CEO, which undermines any claim that the document was attorney-client communication. Apart from not saying anything like that, he should have raised some other objections to the use of that document in a public hearing, but he didn't think of it until after the public hearing. As a result, Oracle is now in the position to accuse Google of shifting positions concerning the purpose of the Lindholm document:

"Third, Google's inconsistent positions about why the document is supposedly privileged demonstrate the bankruptcy of its argument. Although the privilege log entry for the final version of the document states that Lindholm was 'seeking advice of counsel', Google has since (including in its response below) provided inconsistent bases for a claim of privilege: that it 'reflects' the advice of counsel (privilege log entry 5512) 'seeks' advice from counsel (privilege log entries 5513, 2551), or was 'prepared at the direction' of counsel (as asserted to Judge Alsup in its précis), or was a response to a 'question from the CEO' (as asserted to Judge Alsup at the hearing). Google's inconsistency undermines its claim of privilege as to any and all of the documents."


Fifth, even if the Lindholm document were privileged – which it is not – Google has waived any privilege claim. Google produced the Lindholm document and others like it four months ago, in April 2011. It failed to object to the document at either of the July 21 hearings, when it had a full and fair opportunity to do so. Failure to timely object waives the privilege. [...]"

By suppressing the Lindholm document, he would not be able to undo his mistakes but he could at least render them inconsequential.

I honestly feel a bit sorry for van Nest. Google apparently placed a lot of faith in him. The lawyers of the King & Spalding firm who used to do most of the work on this case during the first ten months have apparently been sidelined and van Nest's firm is now in charge. But one of the risks with bringing in a new lead trial lawyer so late in the game is that he may not know everything about the history of the process and, in this particular context, the discovery that took place before.

In a proceeding like this one, there are countless documents in the record. Tens of thousands, maybe hundreds of thousands. It's impossible to memorize all of them. But the Lindholm draft email appears significant enough that all of Google's lawyers should have been aware of it and should have objected to its use by Oracle in a public hearing.

Willful infringement reduces all assertions of antitrust violations to absurdity

On Wednesday, Google's chief legal officer, David Drummond, posted to Google's corporate blog an article entitled "When patents attack Android". That one contains a number of antitrust allegations (without any evidence presented so far) against Apple, Microsoft, Oracle "and others" asserting intellectual property rights against Android.

Any claim that other companies act anticompetitively is completely undermined by a finding of willful infringement. It's not just a credibility issue such as in connection with Google's newly-minted general criticism of software patents. It's worse than that. Antitrust law simply wasn't designed to provide immunity to reckless infringers who just decide to infringe rather than rewrite code to adopt a different programming language.

I have no idea what kinds of antitrust complaints Google may have in mind to file in the future, but Drummond's blog post looks like they have either already done so or plan to do so if the patent issues surrounding Android linger on. In that case, the question of whether the Lindholm document is in the public record or under an attorney-client privilege might again play a role. And if it's in the public record, then Google may very well be found by a court of law to have infringed willfully, which would also have to be taken into consideration by regulators.

Decision should be handed shortly

I'm sure the court will decide very quickly -- in light of the upcoming deposition of Mr. Lindholm -- on the issues raised by the new joint letter.

Google's lawyers may have a point if it's true that the Lindholm document is actually just an auto-saved draft of an email that ultimately was protected by the attorney-client privilege. But so far the court doesn't seem to buy Google's arguments that the Lindholm draft email is subject to the attorney-client privilege.

The truth is out there anyway. The question is only whether this particular piece of evidence will have legal weight.

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