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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.