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.

David Ruddock
David's phone is whatever is currently sitting on his desk. He is an avid writer, and enjoys playing devil's advocate in editorials, and reviewing the latest phones and gadgets. He also doesn't usually write such boring sentences.

  • http://schoonsplace.blogspot.com Schoon

    It appears that Google is in trouble here. Having not delved into the code myself, I'm assuming the poor attempt at concealment is like changing variable names and such. That does not constitute rewriting code. The thing that really bothers me about this is how long Oracle took to react. It's almost as if they waited for Android to be successful then pulled this out of their bag. I don't think this will Kill the Android platform at all but it certainly will change the picture. Oracle has made their mark in the world by mostly buying competing technology so they themselves don't have to compete, could this mean we'll soon be seeing an Oracle phone?

    • matt smith

      Here is the problem. Under CAFC 2008-1001 - the so called $0 copyright law, Google does not have a defense, as well as those others that have violated any copyrighted product. Prior to Aug 2008, the copyright law required a value, which reduce the lawsuit under copyright law (as congress intended it). The problem, is that the EFF in conjunction with DLA, wanted to get the $0 copyright law to protect open source.

      In the copyright case, oracle has already won, and can get a permanent injunction against Google and force Google to recall all infringement devices (over 300M of them), and have them destroyed. For Google to win this, then need to take it to the supreme court.

      So you have a copyright case that Google lost (copyright stops future damages) and a patent case which requires past damages in the form of license fees. These will be license fees that Google will need to pay on top of the Copyright damages.

      Imagine that, force to destroy all droid devices, and pay a licenses fees on top of that?

      Should be interesting to see Google quarterly results with a 20 - 40 Billion reserve… Google has no license defense, they have already lost.

      my 2 cents.

  • Samus

    And the winner is ... HP!

    With Android in trouble that leaves room for HP and WebOS to squeeze into the smartphone market (again)

    If HP can pull off Web OS on Smartphones, Tablets, and NetBooks (and maybe even laptops, AND DESKTOPS!!) then they will have a even more integrated platform that Apple (with iOS and OS X.)

    It's time for change! The time of multiple OS's with sync problems is gone!

    • AlleyGator

      Yeah, because the only thing holding WebOS back is Android. Certainly not HP's nonexistent ability to launch a software -product-, let alone a platform.

      HP can barely produce the buggy driver for my printer. Trusting your operating system with them is laughable.

      • Keith

        Yeah and if HP is waiting to jump into the smartphone market until this case is resolved, it could be 10 years.

        Well, maybe HP is waiting for the case to be over, that would actually make a lot of sense considering how awful this company has been run for the last 10 years.

        "All we have to do is wait for Oracle to win that patent suit, and bam! we're on top of the world. We will own the smartphone market," says whoever the current HP CEO is.

      • abeee

        I agree with you - HP really do suck at software !

  • Jarcikon

    What happened to Java being open source? I mean are they claiming that Google stole closed-source code? I really don't understand the details surrounding this but I hope Google wins. Oracle didn't even make Java, why should they benefit from Android, which they surely didn't contribute to?

    • Keith

      Open source software can still be copyright protected and patents can still be filed for it.

      Open source software is free as in freedom, not free as in "free beer."

      • Brian

        But Android is free. Google is not making money off of it. Or am I wrong?

    • Kane

      Oracle now owns Sun, which essentially means they are acting on behalf of Sun, protecting whatever IP Sun used to have.

  • Keith

    This case is far from over. It will drag on for years and years, and it's not clearly a slamdunk for Oracle.

  • Greg

    I read the code. I personally think Oracle will need to find a better example. Granted there are a lot of similarities, but most of the identical code are for 3 line methods. The "implements PolicyNode" refers to interface, most of the method names are likely defined in there and a class must define all methods from the interface it is implementing. If the PolicyNode interface is open source, that explains why at least 70% of the code look so similar. I'd need to see more code or know the architecture and methodology to explain the final vs public, while loop vs for loop, and exception handling is different. It code be negligible differences, security related, hardware optimization related, or something else.
    The names and order of the private variables and objects is the biggest suspect of copying to me. Maybe the authors have a connection (same person, or same teacher, or use the same reference materials). Maybe one blatantly copied from the other. I am not going to rule out the chance that they both copied it from code in another language, like C++.
    I believe this code could be used as supporting evidence, but it is not poof of infringement (at least to me). I'd like to see other programmers options. Patriotically, form someone that understands the code and legal aspect.

  • Ed

    Oracle doesn't want to kill Android. They just want a piece of the profit it's generating.

    • James

      True, but in the end it will hurt Android anyways. I hope Google is found guility. It serves them right.

  • Jobeus

    This code is straight from OpenJDK, which is licensed under the GPL and thus should be fully legal for Google to copy into another GPL project like Android, no?


    • k

      @Jobeus: I believe they changed the license from GPL to Apache, which they are not allowed to do

  • M

    I don't get it. Even seeing the code comparison (and they do look hideously similar, with terrible variable renames which are in no way convincing), I find it very hard to believe that Google would deliberately infringe like that. They CANNOT be that stupid, surely. I interviewed with them, and everybody I encountered was really really smart, from the recruiters to the receptionists to the programmers. I don't see how they'd ever think that kind of infringement would be a good idea.

  • CraigL

    From Google's response:

    “Google further denies that the document attached to Oracle’s Amended Complaint as Exhibit J contains a true and correct copy of a class file from either Android or “Oracle America’s Java.” Google states further that Oracle has redacted or deleted from the materials shown in Exhibit J both expressive material and copyright headers that appear in the actual materials, which are significant elements and features of the files in question,” wrote Google."

    The bits that do look alike are very small methods with natural variable names...I think many software engineers would create these same methods sight unseen.

  • Walter

    This code in dispute is apparently NOT in any distribution of android. It is solely in some java compatibility test code, which is exactly the purpose Sun wrote it and distributed it for. Android Central has an updated article on this. Relax guys. Oracle has no case. It's all a bunch of smoke and mirrors. Makes me wonder if Mueller shorted some Google stock just before he published his load of BS ....

    • James

      Proof (links), please? This isn't something little to scoff at, troll.

      • Usman

        Who's the troll? There are numerous links... and he specifically said Android Central. Get off your ass and look yourself, hater.

        • Anti-Sam

          Don't let USMan or Walter get you down, James. They are trolls. Android Central has NOT made a new comment on this. And anybody who thinks Larry Ellison and Oracle would just launch a copyright infringement case against Google on the fly is not only ridiculously stupid, but ignorant about the tech industry as a whole.

  • SlidVendetta

    Oops: No copied Java code or weapons of mass destruction found in Android


    • David Ruddock

      See the update above.

  • shadowjin
    • David Ruddock

      We addressed this. See the update.

  • Carlo Broglia

    I found this part of Burnette's reply very difficult to believe.

    "I did find one odd thing about the first 7 files. Sun published those files on its web site to help developers debug and test their own code. For some reason, the Android or Harmony developer who was using them decompiled and rebuilt them instead of just using the ones from Sun. Later an Apache license got incorrectly pasted to the top of the files, perhaps by some automated script."

  • rodney11

    Well Oracle could focus on making themselves known for more than fighting over silly code fragments. What about producing a credible Android competitor platform for mobile devices that they can sell to giants such as Microsoft, Nokia and RIM ?

    Well that would be something to become known for. They need to seriously shape up on the Java ME story that has been lagging behind for so long.