An intellectual-property expert says Google may have used copyrighted code owned by Oracle in as many as 43 files in Android 2.2 and Android 2.3 smartphones. Bloggers disagree.
Google may
have used copyrighted code owned by Oracle in as many as 43 files for the
latest versions of its Android operating system, said an intellectual-property
specialist.
However,
tech-savvy bloggers who have studied the issue dispute his claims.
Oracle sued Google Aug. 12 for infringing seven patents
and other copyrights related to Java in its open-source Android operating
system. Oracle acquired the rights to Java software patents in its January 2010
purchase of Sun Microsystems.
Google, which
never secured a licensing agreement with Sun over its Java patents,
incorporates Java software in Android. Oracle claimed, "Google actively
distributes Android and promotes its use by manufacturers of products and
applications."
Florian
Mueller, who has studied intellectual property for 25 years, said he found 43
instances in which Google copied Java code without consent for the last two
versions of its mobile OS: Android 2.2, code-named Froyo, and Android 2.3,
code-named Gingerbread.
Mueller said
that after looking at Oracle's amended complaint, which contained source code
shipped by Google and Sun's original Java code, he found six more files
included in Froyo and Gingerbread that show Google copied Java files.
He also said
he identified 37 files marked "proprietary/confidential" by Sun and a
copyright notice file that says: "Do not distribute!"
"Unless Google
obtained a license to that code (which is unlikely given the content and tone
of those warnings), this constitutes another breach," Mueller wrote in a blog post Jan. 21.
This is where
Oracle's case could pivot to its advantage, Mueller said, adding that some
commentators overrated Google's defense when they interpreted it as accusing
Oracle of manufacturing evidence.
Google in
October denied Oracle's claims and said the company is singling
out its OS after years of supporting open-source software.
Updated: A Google
spokesperson declined to comment on Mueller's claims, but a few blogs came to
Google's defense.
Ed Burnette, a
ZDnet blogger who focuses on open-source software, argued that some of the code Mueller highlighted
is simply test code and wouldn't be shipped in handsets. Other code was simply
included by mistake.
Burnette's
point is that the copied code shouldn't make Oracle's case open and shut. Ars
Technica's Ryan Paul echoed Burnette's argument in a post:
"It's a
tacky mistake, but it's hardly serious or damaging. At worst, it warrants a
takedown notice. It's certainly not a smoking gun as one might assume when
viewing the code out of context."
Paul allowed
that, while this code isn't actually shipped in Android, it "definitely
doesn't look good for Google to have this stuff in the Android code
repository." But nor does it indicate the direct copying of Sun code into
the shipping Android platform.
Engadget's
Nilay Patel, however, sided with Mueller because "the state of our
current copyright law doesn't make exceptions for how source-code trees work,
or whether or not a script pasted in a different license, or whether these
files made it into handsets."
The stakes in
this case are high. If Google is found to have infringed on Oracle's Java
trademarks and copyrights, it would have to pay Oracle licensing costs for each
of the millions of Android handsets shipping with the copied code.
This would
cost Google and potentially handset partners such as HTC, Motorola and Samsung
tens of millions of dollars. This is not what Google envisioned when it
launched Android to open source three-plus years ago.
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