I just learned that the operating system I use on my Galaxy Note smartphone was in part developed by subcontractors whom some Google employees, at the time, considered "super shady". And no one at Google decided to address the problem. One of the problems those "super shady" external members of the Android development team created resulted in a decision by Judge Alsup on Friday to overrule the jury and hold Google to have infringed eight more Java files. Almost 15 months ago, this blog was first to show (and accuse of infringement based on a table comparing the infringing material and the original works) six of those files.
Over the weekend, the parties continued their debate over how to proceed with the case. Phase One (Copyright Liability) resulted in a plurality of infringement findings, Phase Two (Patent Liability) is underway and (I guess) will add some more, and Phase Three is supposed to deal with damages and disgorgement issues. A little later today I'll talk about the parties' reactions to each other's proposals. For now, suffice it to say they disagree completely on how to proceed except for moving up the question of willful patent infringement from Phase Three to Phase Two.
One item on which the parties disagree strongly is how to address the disgorgement of copyright infringer's profits that Oracle is entitled to under the law, not only with a view to the structure, sequence and organization (SSO) of the 37 asserted Java APIs (with respect to which Google's liability also depends on resolution of copyrightability and unanswered "fair use" questions), but also for the eight decompiled files and the frequently-invoked rangeCheck function. Google disputes the relevance of those secondary infringement findings and wants the court to throw the related disgorgement claims out by summary judgment. However, in its reply (filed late on Sunday by local time) Oracle reiterates why it believes to be entitled to disgorgement, and in connection with the eight decompiled files says this (red rectangle added by me; click on the image to enlarge or read the text below the image):
"The Noser developers 'had access and used the Oracle installation and copied from it, in this case by using a decompiler to produce source code by this quick and easy method.' Mitchell at RT 1260:8–1261:3. Google claims that its subcontractors decompiled Sun code in violation of their contract with Google, as if this was a surprise, but the evidence shows that Google employees thought the Noser engineers were 'super shady' at the time (TX 281), but did nothing about it."
In his testimony, former Google CEO Eric Schmidt said he didn't personally hear anyone say this about the Noser people, but Oracle's filing quotes from a trial exhibit, so there must have been some internal communication at Google (presumably an email) that describes those external members of the Android development team as "super shady".
Google would be liable for its subcontractors anyway (it could, at best, sue them for indemnification). But the fact that people at Google just continued with a key development project despite feeling that some of the external developers working on it were "super shady" shows that the overall Android development process was characterized by a cavalier attitude, and in some cases a reckless infringement mentality, toward third-party intellectual property rights, as opposed to having constituted "clean-room development".
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