Android Is Unstoppable: Why Sun CEO Jonathan Schwartz’s Blog Comment Could Lose Oracle The Android Case

Google is starting to send message to companies wishing to sue the search giant: If you sue us, you had better not have used the Internet in the past couple of years. This is the second time Google has seemingly turned a lawsuit completely around with information found on the good ol’ interwebz. Remember not too long ago that Viacom case against Google? When it seemed like Google was all out of options and all hope was lost, Google dropped a case-changing bomb. Google was able to prove that Viacom employees had been secretly uploading the infringing videos in question to YouTube in order to frame them. Sounds like something out of a TV drama, doesn’t it? Google should look into selling dramatic novels because it has another story for the ages with this Oracle case.

Prologue

For those of you unaware, Oracle is suing Google for a (currently) whopping $2.6 B USD. That’s not small change for even a company as large as Google. This all started when Oracle sued Google of violating some of their IP they got when they bought Sun Microsystems. Google used a bit of code that was not protected by the Gnu Public License (GPL) created by Sun. Oracle took note of that and has been suing Google ever since. This has been repeatedly called an odd move from Oracle seeing as Android is its biggest supporter. Whatever the reason is, Oracle wants money from Android and lots of it. Google has fought tooth and nail against this lawsuit all year and seemed to be in real trouble when a judge ruled that Google appeared “brazen” in the alleged infringement. In laymen’s terms Google decided to use the code in question despite knowing that they shouldn’t. Oracle’s big piece of evidence was an email sent by Android’s own Andy Rubin in 2005.

If Sun doesn’t want to work with us, we have two options: 1) Abandon our work and adopt MSFT CLR VM and C# language – or – 2) Do Java anyway and defend our decision, perhaps making enemies along the way

Can’t say I disagree with the Judge’s decision that Google was knowingly using protected code. The war was over. Google didn’t seem to have another leg to stand on. Spoiler alert: There’s a big plot twist ahead.

Chapter 1

In a very strange turn of events, Sun’s CEO Jonathan Schwartz may have given Google verbal permission to use their code (remember, it is Sun’s code, bought by Oracle). How legal site Groklaw came about this post from 2007 I don’t know, but I’m willing to bet Google is very happy they did. The reason this is such a big turn around is because Oracle has been claiming that Sun forbid Google to use Java. Usually when you forbid someone to use something there are key phrases like “under no circumstance,” “do not have permission,” and the even more obvious “no.” Tell me how many of these you see in the quote taken directly from Jonathan Schwartz on the company blog (important).

I just wanted to add my voice to the chorus of others from Sun in offering my heartfelt congratulations to Google on the announcement of their new Java/Linux platform, Android.  Congratulations!

I’d also like Sun to be the first platform software company to commit to a complete developer environment around the platform, as we throw Sun’s NetBeans developer platform for mobile devices behind the effort. We’ve obviously done a ton of work to support developers on all Java based platforms, and were pleased to add Google’s Android to the list.

And needless to say, Google and the Open Handset Alliance just strapped another set of rockets to the community’s momentum – and to the vision defining opportunity across our (and other) planets.

Today is an incredible day for the open source community, and a massive endorsement of two of the industry’s most prolific free software communities, Java and Linux.

In an awfully strange “coincidence,” Oracle has deleted the blog entry from Sun’s servers; perhaps in an odd attempt to bar the evidence from court. This move seems even less likely to work considering the presiding judge in the case has openly rode Oracle for trying to block evidence.

The big companies do not own the U.S. District Court, When it comes to a public hearing I’m not going to resort to Morse code to figure out what you are saying This is not a wholly-owned subsidiary of Oracle. Nobody is going to put my word under seal even if I refer to your secret documents.

So despite being told not to try and prevent evidence Oracle seems content with trying to do just that. You don’t need a defense against information that isn’t used, right? Too bad for Oracle the chances of the Sun CEO’s statement not being allowed to be presented are slim to none.

Chapter 2

All of this comes down whether or not the Judge decides that Sun did not give any sort of verbal permission to use Java. Based on the blog post Sun seemed not only willing to work with Google, but damn happy to be doing it. Google now has a very strong case claiming what is known as “reliance based estoppel.” A company can’t give you permission or show approval for you doing something and then sue you for it later. If this does happen the case is usually dropped almost immediately. Google will claim that Sun showed no signs of suing them for “infringing” on their IP. Now Oracle is suing on that same IP.

Epilogue

So what does this entire mess of info mean? First, Google is really invested in Android and that it has no plans for letting it go away soon. Secondly, whether it has divine power, the best law team the world has ever seen, mastered sorcery, or the luckiest rabbit foot in existence, Google knows how to get out of a hole. For a company as new as Google (meaning a very small IP portfolio), this is something you want others companies to know. Google may not be the biggest fighter in the ring, but they damn sure are scrappiest. With Apple’s recent interest in fighting Android on a legal battlefield instead of in the market, this might send a stern message to Apple and other benefactors wanting to try and pick apart Google’s mobile child. And lastly, this means absolutely nothing in regards to what relationship Oracle and Google have. With only an odd verbal contract from several years ago and Oracle openly disapproving of Android’s Java use, Android will more than likely have to either redo the code in question or buy licensing rights from Oracle. So Oracle “wins” no matter what, it just won’t be able to cripple Android financially and win at the same time.

Side Story

Oracle’s CEO Larry Ellison is a rather confusing person. He openly spoke for open source projects and made a lot of people believe that the Sun acquisition was for a good purpose. After getting the companies he wanted he seemed to have done a 180. His attack against Android is being viewed as an attack on open source. While I don’t want to point fingers, I can’t help but remember an old English Teacher’s words: “Many a good cause has been thwarted by the greed of a few.”

» See more articles by Andrew Greenfield


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