Update: In response to the ZDNet article, it seems like Mueller may well have been incorrect about the "additional instances" of possible infringement he claims to have found. Exhibit J (linked as "6 pages of code") from Oracle's amended complaint is not addressed in the ZDNet article. We make no claims as to the validity of Oracle or Mueller's assertion; we are merely commenting on the situation.
Many people are confused about what it is Mueller is saying about copyrighted code, and it's an understandably complex topic, one I don't claim to fully comprehend. Those who offer evidence that "debunks" Mueller's additional files clearly know a lot more about code than I do. Regardless, once the case goes (if it goes) into the discovery process, Oracle will probably offer up numerous additional code comparisons in evidence - Oracle isn't going to make a case on 6 pages of code.
The Morning Java
It has been a while since we last covered the Oracle lawsuit (I suggest you read it if you haven't heard much about the case) against Google for infringement on Java code in the Android OS. Admittedly, there hasn't been much news on the suit since then. But a respected tech patent blogger, Florian Mueller, has weighed in on the issue numerous times over the last couple of months.
Before I go any further, Mueller is a software patent activist from Germany as well as the founder of the "NoSoftwarePatents" campaign. So you might guess the guy isn't exactly friendly with the idea of Oracle being able to assert authoritarian control over Java code. And he's probably using this purportedly damning evidence against Google to further his own belief that software patents shouldn't exist in the first place. Just putting things in perspective.
This morning, Mueller published an article that continued and expanded on one he posted a couple of months ago regarding evidence Oracle presented in its amended complaint after Google's original answer had been filed. Google has since filed a reply, though it doesn't bring up any new or interesting tidbits.
Oracle's evidence is pretty concrete: 6 pages of code, side by side, comparing Google's code in Android's Java implementation to Sun's Java. Even as someone who isn't a programmer, I can see the striking similarity. Mueller seems convinced the two are practically identical, and himself delved into the Android OS and found 6 similar instances Oracle did not present in its complaint. Mueller went so far as to call the Sun code "professional... while the Android version of those files looked like an attempt to conceal an infringement." Again, I'm not a programmer (feel free to chime in on the code comparison if you are), but for the sake of moving on, let's assume Mueller is right.
On The 'Fringe
Sorry, I promise the next heading won't be a pun. If Mueller is right, Google is using copyrighted Oracle code without permission. This is pretty much the definition of copyright infringement. Google has prepared a litany of defenses, but it's sounding like the most convincing one - "No, we didn't" - just disappeared. Mueller's observations are just mutilating the corpse of that argument at this point.
Google's second amended answer to Sun's complaint should be coming soon. Its first amended answer indicated a couple of the primary arguments it would present against Oracle's evidence -namely, that Sun altered its own code to appear more like Google's, and that Google took the code in good faith from the Apache Software Foundation's open source Java Harmony project. Mueller doesn't buy that for one second - and apparently Apache is denying that the code in question was ever part of Harmony. Apache is probably not keen to become joined as a party with Google, and an empty chair defense blaming Apache could severely damage Google's reputation in the developer and software communities.
I can't say I'm exactly convinced by those counterpoints, either. Google's best defense at this point will be to quash the related patents, or to show that Oracle slept on its rights. Those are among Google's twenty or so defenses presented, and its amended answer should provide a little more insight into how they hope to defend those arguments.
First up would be the doctrine of laches - if Google reasonably believed Oracle had "sat on" its right to sue for too long, and believed Oracle would not sue, the lawsuit may be barred. Whether or not Sun's behavior towards Google and Android should be considered is a question for the judge. A similar defense stemming from that evidence would be one of equitable estoppel, whereby Google would need to show that Sun and Oracle's previous conduct indicated they wouldn't seek to enforce the particular rights they are now suing on.
The strength of Google's defenses will become clear as the discovery (gathering of evidence) process begins, but it seems clear that Google is willing to take this to trial if they can't get Oracle to back down. Oracle is probably equally unwilling to settle, as it wants the court to assert its total authority over the patents and copyrighted code in question.
What's It To You?
If Oracle were to win this suit at trial, almost every application for Android would become an infringing piece of software. This isn't the sort of thing that makes developers or manufacturers feel secure about the Android platform. Google would likely be forced to pay a hefty sum for lost profits to Oracle, and handset manufacturers would probably start having to pay licensing fees (essentially, a royalty), whether to Google as an Android licensing fee or directly to Oracle, since that's where it would end up anyways. Google would also become subject to using that software under Oracle's licensing terms.
This means higher phone prices, and might scare manufacturers into spending more time with alternative mobile operating systems. Developers would probably also have to comply with an Oracle licensing agreement.
We're still rooting for Google here, but this lawsuit could be very bad for Android.