Friday, August 21, 2015

Google found its own Java libraries "half-ass at best", needed "another half of an ass", took Oracle's APIs

This morning I found out I had actually missed the funniest piece of evidence in that whole Oracle v. Google Android-Java copyright infringement case. I've been following the case ever since it started (it had its fifth anniversary last week) but just learned this morning, when reading a new filing by Oracle in the California remand proceedings, that a Google-internal email (by Android developer Chris Desalvo to his boss, Andy Rubin) stated the following (click on the image to enlarge or read the text below the image):

Subject: Java class libraries

With talks with Sun broken off[,] where does that leave us regarding Java class libraries? Ours are half-ass at best. We need another half of an ass.


Oracle points to this Google-internal memo (which I found on another blog that covered the 2012 trial but was totally biased in Google's favor, hence got the copyrightability part completely wrong and never wanted to draw attention to this rather telling email) as part of its argument that Google's use of the 37 Java APIs at issue in this copyright infringement case was willful and that Oracle should not be precluded (despite a Google motion in that regard) from telling the jury the whole story about Google's fully-intended infringement. This is the introductory section of the filing (the "ass" part comes after the part I quote here):

"Google is a willful infringer. Google copied and distributed without authorization Sun/Oracle's 37 Java API Packages (and RangeCheck and the eight decompiled files, for that matter). Google knew full well that this was copyrighted material, that it needed to take a license, and that its failure to do so subjected it to legal liability. Indeed, Google's employees were instructed to conceal the scope of the infringement for as long as possible as they 'scrubbed the js' from Android. At no point did anyone inside Google ever suggest that its unauthorized copying was 'fair use'--nor does it have an opinion of counsel justifying its actions.

Google simply didn't care that it was willfully infringing Sun's (and later Oracle's) copyrights. Sun was weak and Google needed to get to market with a mobile solution. When Oracle acquired Sun, Google again had the chance to do the right thing—and this time it faced an opponent that was not hemorrhaging revenue and watching its market capitalization drop through the floor. At that point, Google's executives candidly acknowledged that they needed the Java API Packages, because 'the alternatives all suck.' Google believed it would be 'out of business in 10 years' if it did not succeed in mobile. Still, Google did not do the right thing and take a license. Google stands alone among large companies who commercially exploit the Java Platform without complying with the license terms.

Now Google wants to escape any meaningful consequence for its actions. Google argues that the only consequence of a deliberate wrongdoing that earned it many billions of dollars in profit, severely harmed the Java Platform, and allowed Google to maintain a dominant market share in the search engine advertising market, is the difference between $75,000 and $150,000 in statutory damages. Google tries to convince this Court that it simply makes no difference at all that it knowingly and deliberately took the property of another in violation of the law while earning untold billions in the process.

Google is utterly wrong. Willfulness does matter—even when the infringement is on an epic scale. It matters because for hundreds of years, at law and equity, the courts have consistently recognized that conscious wrongdoers must be deprived of any benefit whatsoever from their knowing choice to disobey the law. The trier of fact has always had the discretion, at law and at equity, to take into account conscious wrongdoing when accounting for profits. The Supreme Court has repeatedly affirmed that rule in numerous contexts, the rule has been applied for decades in all types of intellectual property cases, and Congress legislated that rule when it explicitly adopted the rationale of one of those Supreme Court copyright cases, Sheldon v. Metro-Goldwyn Pictures Corp., 309 U.S. 390 (1940), in Section 504(b) of the 1976 Copyright Act. The jury is entitled to consider it here. Accordingly, Oracle proposes herein both a verdict and a jury instruction that properly address this issue."

The section quoted above makes reference to "fair use," the defense because of which the appeals court ordered a remand. This week Steven Huwig, a professional software developer (who among other things wrote software for a large New York bank), said the following about Google's "fair use" defense on Twitter, which suggests (without him using the same terminology) that he still considers the Android class libraries "half-assed":

"Oracle v. Google in a nutshell: Android is like a parody of Oracle JDK, but there's no fair use exception for this kind of parody."

Parodies in general do fall under the "fair use" exception, but not unintended ones.

If you're interested in more detail on Oracle's lawyers' legal argument as to why they should be allowed to present willful-infringement evidence to the retrial jury, here's the filing:

15-08-20 Oracle Opposition to Google Motion to Preclude Willfulness Evidence by Florian Mueller

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