“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.”
That sentence is still vague and open to interpretation. He could just be talking about the open source Java language, but other emails reveal that Google was wary about using Java technologies in Android and knew it needed a license but failed to follow through.
Google's Android Devs Knew They Needed a License...
Another 2005 email between Larry Page and Andy Rubin revealed that Rubin was going to make Java the core of Android and that Google should get a license. Much later in the game in 2010, Google still hadn't gotten a license and Larry and Sergey were pushing back against Rubin's suggestion:
“What we’ve actually been asked to do (by Larry and Sergey) is to investigate what technical alternatives exist to Java for Android and Chrome. We’ve been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need.”
If This Evidence Goes to Trial...
Would this evidence motivate Google to settle? Maybe not, but Judge Alsup seems pretty confident in Oracle's chances. Alsup commented after he had read these emails that it seemed like Google would rather "roll the dice" on litigation with Java:
“You know what they used to say about Joe Alioto,” Alsup said, (Alioto was a highly successful anti-trust lawyer). “In a big case like this, he only needed two documents: He needed a document like this, the one I just read, and the Magna Carta. And he won every case. And you are going to be on the losing end of this document with Andy Rubin on the stand. … If willful infringement is found, there are profound implications for a permanent injunction. So you better think about that.”
These documents could easily sway a jury in favor of Oracle, given the right conditions. This ordeal may have squelched the high hopes of Google just after receiving some good news that the Judge had forced Oracle to scale back their damages claim, which was between $1.4 and $6 billion, down to a baseline of $100 million (an old figure that Sun offered to Google in the past for a 3 year royalty license). Oracle also has to decide clearly which patents they want to pursue in the trial, or there could be delays and problems with their case.
While it's easy to point out the hypocrisy of some of Oracle's public facing statements and actions—just read about Oracle's removal of Jonathan Schwartz's blog post in which he's excited about Android's launch, or see the video below (skip to 7:00)—it is still not likely that these points will sway a jury as much as the emails.
Google may yet have some new cards to play before this trial (tentatively) begins on October 31st (Halloween, Spooky! ). However, things are looking gloomy right now. Maybe Glyn Moody was right. Maybe the best defense for Google is to fund a campaign for the abolition of software patents. Although that hope seems bleak in a country where the idea of patents are firmly embedded in the social psyche.
I posed some questions to Mark Webbink about the validity of Google's defense in light of these emails. Mark is an editor at Groklaw.net and he and the other legally-savvy folks at that site have been following this case very closely. Here's the response he gave me:
First, the Rubin quote would be troubling but for the fact that GoogleSo of course, we are reminded that the case is far from over. But as I said, in the right context and the right influence over the jury, these documents could be extremely damaging to Google's case. Remember, neither the judge, nor the jury will probably have any knowledge of the fundamentals of software development.
ended up pursuing a third option, i.e., a non-Java JVM - Dalvik. It is
Google's contention that Dalvik, while it is written in the Java
programming language, is not Java bytecode but rather Dalvik byte code.
Mark Murphy describes this better here.
In addition, Google has other defenses to the Oracle claims, probably
first and foremost of which is the assertion that the Oracle patents are
invalid. The patents are already in reexamination, and initial actions
by the US Patent and Trademark Office support Google's assertion. We
won't know for sure until either the USPTO completes its reexamination
or the court case goes forward and the court evaluates the merits of the
Oracle claims. [This is why Google would like to delay the trial]
There has also been some evidence that Sun/Oracle induced Google to
infringe, and that Oracle could be estopped from now claiming
infringement. This is supported by statements from Larry Ellison
(here) and Jonathan Schwartz (here). This is not the strongest argument,
but it may tip things in the balance.
At this juncture this case could go either way, but we certainly don't
perceive it as been strongly in the favor of one party or the other.
See sources below:
"Judge orders overhaul of Oracle's damages report but maintains Halloween trial date," by Florian Mueller
11-07-22 Oracle Google Damages Report Overhaul Decision