Apple and Google routinely have discovery disputes. Apple's second California action against Samsung, which includes a motion for a preliminary injunction against the Galaxy Nexus, is already the eighth U.S. lawsuit in which Apple subpoeaned Google, and it's no surprise that Apple would like to receive more information than Google is willing to provide. Typically, the court will resolve such a dispute by narrowing the discovery requests. But what's particularly interesting this time (even if not completely new) is that Google puts its attitude toward "open source" on display.
One of Apple's requests that Google opposes is a demand for documents and testimony regarding "[t]he differences, if any", between the code actually used on the Galaxy Nexus and "the Android 4.0 Ice Cream Sandwich code publicly available from https://android.googlesource.com/platform/manifest, or through the process described at http://source.android.com/source/downloading.html".
Google's first objection is that it "has already agreed to produce source code underlying" the Android software running on the Galaxy Nexus. Google disputes the relevance of of the open-source code because it "is not loaded on Samsung's Galaxy Nexus device and cannot be relevant to Apple's infringement claims against Samsung generally or the Galaxy Nexus in particular".
Then Google goes on to complain that "Apple's request would reveal critical Google trade secrets". Yes, the Galaxy Nexus source code is described as a "trade secret":
"Although Google releases some versions of Android through the Android Open Source Project, the internal functionality of Android running on the Samsung Galaxy Nexus is Google's trade secret."
In other words, Google will publish whatever it publishes on open-source terms, but the software running on the lead device for the current generation of Android is a secret.
Google suspects that Apple made this request "for one purpose only – to design claims for other litigation". Whether or not that is Apple's motive is a separate issue. Someone who claims to be "open" can't have his cake and eat it. Of course, being open means that, potentially, someone will look at code to identify patent and copyright infringements. But under open-source rules the one who wants to do so has the same right to inspect the code as someone who wants to fix a bug (possibly a critical security vulnerability), add a feature, or translate the thing to the Klingon language. Open source rules don't discriminate against anyone who wants to look at the source code.
In its effort to claim trade secret protection for the code running on the Galaxy Nexus, Google then cites a discovery ruling from an iPhone antitrust case (In re Apple & AT & TM Antitrust Litig.):
"Because the iPhone source code is a trade secret, plaintiffs have the burden to establish that it is both relevant and necessary."
Google indeed wants to have it both ways. It wants to keep Android closed like the iPhone in some contexts but at the same time demands legal privileges, including the privilege to infringe anyone's intellectual property, because Android is supposedly "open". Google's claim that the Galaxy Nexus source code is just as much of a trade secret as the code running on the iPhone contrasts with what Google told the ITC two months ago in connection with Apple's complaint against Motorola:
"Exclusion of Motorola's handsets and tablets would also threaten Android, the only freely adaptable, open-source mobile platform developed and distributed in the U.S. Android's open, generative platform will facilitate the next round of innovations in mobile computing and fuel the U.S. technology sector [...]"
"Unlike Apple's much less flexible iOS, generative platforms such as Android encourage innovation, promote self-expression, and protect individual freedom, providing consumers and industry with substantial value."
It would be nice if Google could either come clean and admit that it's not really open or (ideally) honor its open-source promise. But if Google buys Motorola, I'm afraid we'll see more "trade secret" claims than ever.
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