Guest post by “Sometimes the sheer wrongness of what is posted on the web leaves us speechless. Especially when it’s picked up and repeated as gospel by otherwise reputable sites like Engadget. ‘Google copied Oracle’s Java code, pasted in a new license, and shipped it’, they reported this morning. Sorry, but that just isn’t true.”
Since when is Engadget reputable?
Apparently i’m not allowed to mod your insightful.
It’s high time people realize which sites are actually knowledgeable and how to take EACH information from any site with a grain of salt (aka, think on their own.. oh ok, I’m told I’m just dreaming out loud)
Well when Nilay Patel finally did a review of the situation it ended up a good unbiased and nonsensational view of the situation.
The guy that published his ‘findings’ (engadget links to his blog) used to be easily found on lwn.net kicking things out of proportion.
The current article brings what is known back to Earth. Read also the comments, as the original FUD thrower (seems to be) kicks in and try to defend his thought lines.
As was pointed, his is not a lawyer, or developer or tried to follow-up the use of the files and theirs origin very well.
Edited 2011-01-21 23:13 UTC
Alas, there is a difference between technical and legal implications of the case, well summed up by a level-headed engadget:
http://www.engadget.com/2011/01/21/android-source-code-java-and-cop…
Google can remove the infriging files at once and Android will still run fine, but Oracle is going to win the case.
But, Oracle still has to prove they willfully intended to violate the copyright… (which could definitely still happen)…
Pardon my comparison to real, tangible property, but it’s sorta like discovering someone has stolen goods in their car, which they claim they didn’t know were there, never saw before, and have never used – but would gladly give them back to the rightful owner now that they know about it.
Ultimately, someone is responsible for wrongdoing, but it can be fuzzy. In this case, “possession” is a pretty powerful circumstance, and will be the major point that Oracle uses to prove Google’s alleged wrongdoing – but there are always gray areas. In the case of the “stolen goods” – perhaps someone else threw them into an open car window and the owner didn’t notice when they got back to the car… How might that play out in court?
Why? AFAIK willful copyright infringement attracts higher damages awards, including statutory damages, but copyright infringement can still occur whether the act is willful or not. Oracle wins either way. The question now is all about damages.
well a lawsuit between two companies as big as google and oracle is going to cost a hell of a lot of money win or lose. So how much money you can get from an infringement is a huge issue. They need something much much bigger than a small one time infringement in non-shipping code. They want something they can use to get a piece of every android device sold. Otherwise the cost/benefit analysis of their case doesn’t work out. Remember the legal costs of this case may very well reach the level of 100 hundreds of millions of dollars (numbers based off the viacom/youtube suit) So they need something that will make them more than that. This is not it.
I’m still betting this ends in settlement though.
Oh, Oracle will get this one 100%. It’s just not a big deal, because Google have already removed the files and these files haven’t exactly created financial losses to Oracle(the code is/was freely distributed by Oracle with limitations).
Oracle’s lawyers will have to find some really obscure legal hook that will hit Google financially.
Copyrighted works are accidentally redistributed all the time, most of the time compliance with a take down notice is enough.
Ignorance of the Law is not a defense in the US. It was incumbent on Google’s part to scour the IP it was buying before they bought the code base.
Ignorance isn’t an excuse, but US law treats accidental and willful infringement differently.
In the end, it’s only going to really matter if the infringed bits were actually shipped in Android, and so far it sounds like none of it was.
Otherwise all Google is going to get is a “slap on the wrist” for re-releasing code in a public repo that Oracle owned the copyright on – some of which was already freely available under GPL anyway, some which may not have been.
Oracle is still going to have to demonstrate that there was a monetary loss as a result of the infringement if they plan to actually get anything out of Google.
Except that stealing has nothing to do with copyright. The key is “distribution”. Copyright infringement is not theft.
Distribution does not have to be product. It seems Google makes their unit tests available to lots of folks. That is “distribution” regardless of what some developer thinks. I cannot use Mickey Mouse in my presentations whether they are internal only or not.
For another example, imagine that you make a product available as open source and make the code available publically via a Git repository. Now try loading the source to Microsoft Windows into a subdirectory in that repository. The Windows code is not part of your build and is not shipped in your product but anybody can use Git to download it to their local machines.
Are you in trouble or is this just a minor or irrelevant matter?
You are in a shitload of trouble is what you are.
Now think again of the Google example.
What Google seems to be distributing may prove to be unimportant but it sure does not sound legit.
Do you remember the Caldera/SCO Group claims that being in possession of copyright infringing materials made the possessor liable for copyright infringement? Do you also recall that that’s not how the law works?
The perpetrator of the infringement is liable, not the possessor, unless they are identical, of course. Even if the programmer is a Google employee Google is not liable for the infringement unless someone in Google’s management team authorized and directed it. And then that person (or persons) is guilty of conspiracy to infringe and the infringer is the only one guilty of actual infringement.
This is different from patent infringement where anyone who uses the patented functionality without a license infringes and is therefore liable.
Mr. Patel isn’t the only person who had trouble getting the details right in stuff like this.
This is 100% factually incorrect. If an employee inserts copyright infringing code into their employer’s codebase, the employer is most definitely liable. It is irrelevant whether they acted with management’s direction or authorization. Largely this is because the entity doing the infringing is the one distributing the work. In this case it is Google through their source repository that is doing the distribution. Thus, Google is directly infringing and liable.
Second, everyone worrying about whether it is willful, or included in Android is missing the big picture. If it is shown that Google is infringing on Oracle’s copyright’s, even largely irrelevant ones in the grand scheme of things, it is going to make this lawsuit much more difficult for them. Starting out a judge is likely to give you the benefit of the doubt. Once it is obvious you are doing something wrong, that benefit goes away. See the Psystar case to see how quickly this can happen and how badly the results can be. And since Google seems unable to bring counterclaims against Oracle, this is a very, very bad development for Google.
In this case, the attorney has it right.
Doh!
I retract my assertion.
I believe that you are correct that if the programmer is an employee the company is liable ; it does not require management-level involvement. I apologize for my error and thank you for posting a correction.
Yes, but as Nilay has pointed it out himself, Psystar case is not exact match. It turns sour quick, but do you really think that Google will have the same argument as Psystar did? They should be smart enough to state that it was accidental, infringing material was removed and it wasn’t shipped with any product.
Accidental infringement happens every day. Photos and images are published on the internet. But most of the times a take down notice is where it stops.
So the whole lawsuit will again come down to patents.
Totally agree, and Google’s entire business model isn’t predicated on copyright infringement. But see below…
And this is where even accidental copyright infringement hurts you in a complex lawsuit. If Oracle shows conclusive proof that, accidentally or through negligence Google is likely committing copyright infringement, it will be much harder to get aspects of Oracles lawsuit thrown out quickly. The judge is going to want to take a hard look at the evidence before trusting a company that has shown to be negligent in one aspect of intellectual property. And the long the lawsuit drags on and the worse it looks for Google, the bigger the cloud that will hang over Android.
So while I agree with everyone saying that it’s not as big a deal as showing that the core of Android includes copied code, it is a big deal as far as the litigation goes, a very big deal.
Well from my training on the patent matter(I work for a very very large patent filer in US
), we are actively discouraged searching for patents on the matter when we are asked to evaluate our work for “patentability”. Thank God, I can just say “I live in a country where software patents are not legal” and stop there.
Why is that? Apparently negligence in patent infringement is treated lighter than knowing of such patents in US.
It’s never been distributed for monetary gain, and the violation seems to consist of a license change.
How can it affect devices, if it’s not in them?
So Oracle might get some cash from Google, I see it as reaching into the millions, but that’s a drop in the bucket for Google.
I can sum up the situation with a single sarcastic comment: Big fscking deal.
There is more on this: http://www.engadget.com/2011/01/21/android-source-code-java-and-cop…
Since I have already fatmouthed about copyright infringement I will offer a link to what someone who has much more experience has to offer on the point. (o;)
http://www.groklaw.net/article.php?story=20110122054409107
She covers a lot of points that have been addressed here and elsewhere: what the role of fact checking and subsequent analysis is (Doh!) ; how to establish that copyright infringement has actually taken place ; willful, as opposed to inadvertent or unintentional infringement ; what the potential economic impact of any infringement might be and how that might affect any ruling(s) ; links to the court filings so you can see what they actually claim as well as what is not there ; how discovery plays out in terms of supporting or refuting claims.
Make some tea, coffee if you prefer. (;)