Android OS bombshell: Did Google illegally lift copyrighted code?

Android OS bombshell: Did Google illegally lift copyrighted code?

Summary: In a lawsuit filed last summer, Oracle accused Google of patent and copyright infringement in the development and distribution of the Android OS. Today, a prominent expert on intellectual property revealed evidence that Android may indeed violate those copyrights. Here's why this lawsuit is not like the others.

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See update at end of post for a concurring opinion by an experienced copyright lawyer.


Last summer, Oracle announced it had filed a complaint against Google, Inc. for patent and copyright infringement. In the lawsuit, Oracle claims that Google "knowingly, directly and repeatedly infringed Oracle's Java-related intellectual property" in the development and distribution of the Android operating system.

Today, in a bombshell post on his FOSS Patents blog, Florian Mueller, an expert on intellectual property law and open source code, reports that "evidence is mounting that different components of the Android mobile operating system may indeed violate copyrights of Sun Microsystems, a company Oracle acquired a year ago."

Oracle provided one example in its original complaint showing line-by-line copying of its code. Mueller's new work looks at a completely different set of files that were not previously disclosed. He found examples of at least six files in one directory that show a "pattern of direct copying." Those files are part of Froyo (Android 2.2) and Gingerbread (Android 2.3). In addition, he found a significant number of files in the Android codebase that are clearly marked as belonging to Sun:

I have identified 37 files marked as "PROPRIETARY/CONFIDENTIAL" by Sun and a copyright notice file that says: "DO NOT DISTRIBUTE!" Those files appear to relate to the Mobile Media API of the Sun Java Wireless Toolkit. Unless Google obtained a license to that code (which is unlikely given the content and tone of those warnings), this constitutes another breach. [Emphasis in original]

Mueller's findings are documented in a collection of nine PDF files, totaling 46 pages. In addition to the copyright notices, he found examples where the Android OS code was virtually identical to code originally written and copyrighted by Sun:

In those synopsis files, lines with differences (in content, not just layout) are marked up in red. The amount of differences is minuscule. In most of the files, those differences are limited to comments or to a few lines having a different position without any impact on program logic.

Software companies sue each other all the time, right? And patent lawsuits in particular can take years to work their way through the legal system. So what's the big deal this time?

First, this is not a squishy claim of patent infringement. The allegations here are of copyright infringement, in which the actual code is copied without permission and reused. That sort of allegation is much more damning and, at least in this case, easier to prove.

Second, a huge number of third parties have used the Android code in their devices. According to Google, more than 300,000 handsets running Android are being activated every day. Dozens of hardware makers and mobile carriers have picked up the Android code for use in their phones, and another wave of Android-based tablet devices are on the way this year. I would imagine many of them are on the phone with Google's outgoing CEO Eric Schmidt today demanding answers.

Finally, it explains why any large company would be foolish, even reckless to adopt Google's WebM codec for Internet video. As I noted earlier this month, "the patents underlying WebM have been obscure up till now but are about to be catapulted into the mainstream by a company with very deep pockets and very big ambitions." If Google can't even vet its source code for obvious examples of copyright infringement, how can a third party conclude that it has thoroughly reviewed the underlying patents for WebM?

Update: My ZDNet colleague Ed Burnette has an alternative take on this information. He argues that the files in question were simply test files that never shipped with Android. He also takes a cheap shot at Mueller, saying he "by the way is neither a lawyer nor a developer although he plays one on TV."

Maybe Ed should have talked to an actual copyright attorney. Engadget's managing editor, Nilay Patel, has a law degree and practiced as a copyright lawyer before he took his current job. He looked at Ed's post and had the following reaction:

[F]rom a technical perspective, these objections are completely valid . The files in question do appear to be test files, some of them were removed, and there's simply no way of knowing if any of them ended up in a shipping Android handset. But -- and this is a big but -- that's just the technical story. From a legal perspective, it seems very likely that these files create increased copyright liability for Google ...

Whether or not these files are a "smoking gun" isn't the issue -- it's whether Android infringes Oracle's patents and copyrights, since the consequences either way will be monumental and far-reaching.

His entire post is worth reading.

Topics: Hardware, Enterprise Software, Google, Laptops, Legal, Mobility, Oracle, Tablets

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165 comments
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  • If google did steal the code is was for the benifit of the

    open source community and the world but absolutely NOT for themselves.
    just ask s.j. vaughan-nichols chris dawson garet rodgers ect if you dont believe it
    Ron Bergundy
    • RE: Android OS bombshell: Did Google illegally lift copyrighted code?

      @Ron Bergundy
      gowish
      • If open source gets a free pass from stealing ....

        @gowish ... then wouldn't that be a green light to steal from open source?<br><br>I use open source every day in my work. But saying that just because a project is open source it should be exempted from the law is just stupid.
        wackoae
      • RE: Android OS bombshell: Did Google illegally lift copyrighted code?

        @gowish Oh yes, that definitely makes sense. If you didn't write it and don't have a right to it, go ahead and steal it. It's for the greater good anyway, right? This is why open source people are looked upon with suspicion so often. If you don't have any respect for the rule of law, you are not an asset to business or society as a whole.

        Google is NO exception!
        Tiggster
      • RE: Android OS bombshell: Did Google illegally lift copyrighted code?

        @gowish and @Ron Bergundy The implication of your statements shows some of the the dumbest logic I've ever read. If I steal it to set it free and not enrich myself then that somehow makes it okay? Are you sure your not working for WikiLeaks?<br><br>If it's proprietary and you take it that's called STEALING. I don't care what you did with it and I don't care how many bazillions of dollars the guy you stold it from has.
        Michael L Jones
      • I have a feeling that Ron Bergundy was being sarcastic..

        @gowish... just in case you didn't catch that.. i assume that he felt he didn't have to explain that given that his statement (which you agree with.. shaking my head) is so ridiculous that no one would have ever taken it seriously..
        doctorSpoc
      • RE: Android OS bombshell: Did Google illegally lift copyrighted code?

        @gowish Let Me Clarify Wat I meant before. I never stealing is good and any stealing should not be prosecuted.. But here the case is different. Do you guys understand what does this stealing means. The Statement stealing itself is incorrect. All Oracle is saying that google is using propriety java code. Means core java classes that come with jdk. When u code in java.. you use class files and libraries provided by Java where in the world does that means stealing. I talking stealing in context to the article which itlsef is wrong.
        gowish
      • the only issue is

        @gowish Google did nothing wrong.
        They just used the code released under GPL by Sun/Oracle
        Oracle has no case.Period!
        Linux Geek
      • RE: Android OS bombshell: Did Google illegally lift copyrighted code?

        @gowish

        So VLC should go back in Apple's App store?
        alsobannedfromzdnet
      • RE: Android OS bombshell: Did Google illegally lift copyrighted code?

        @gowish
        Oh at the same time can we nullify GPL and LGPL?
        Ram U
      • And then relicensed it..?

        @Linux Geek.. you don't understand that they can't do that?
        doctorSpoc
      • RE: Android OS bombshell: Did Google illegally lift copyrighted code?

        @Linux Geek If you copied a code under GPL you have to distribute your code under GPL, not redistribute it under another license, and thats what Google didn't do

        There is a reason why Sun released JaveME under GPL license to guarantee the compatibility of all Java applications.
        NaderBelaid
      • All copyright has to be respected. Even the junk.

        @gowish

        You were probably having a Linksys/Cisco moment. God I hope Mozilla kicks Google to the curb. Otherwise there will be a Larry tax on everything.
        osreinstall
      • Public held companies generally use open source to disrupt.

        @gowish Google, IBM, Sun and others use open-source as a disruptive technology to deal with competitors. Google is going after Apple. By doing OSS they can compete more cheaply. But the products that they directly make money off of like their search engine they do not open source.

        Google has to answer to the investors who expect a profit. If they don't make a profit, the board will eventually be voted out and replaced with members who will. The executive staff to the chairman of the board are all doing what they are doing to make the business succeed. And rightfully so as long as they stay legal.
        DevGuy_z
      • RE: Android OS bombshell: Did Google illegally lift copyrighted code?

        @gowish
        Just stick with WM, RIM OS, Symbian or Apple IOS until all get hashed out. From my run-in with companies with similar issues, they say the best way is the underhand way but just don't get caught and have excellent lawyers. My problem with this is America in general operates in a similar way. The flip side to it is they almost always get caught and starts back peddling.

        Hope Google has good sneakers to start their back peddling. LOL!
        Free Webapps
    • RE: Android OS bombshell: Did Google illegally lift copyrighted code?

      @Ron Bergundy If they swiped the code, then they deserve to pay a whopping fine, followed by one pricey license, but, and this is a big but, this case against Google is a long way from being done.

      Steven
      sjvn
      • RE: Android OS bombshell: Did Google illegally lift copyrighted code?

        @sjvn@...

        Read through these from Android source code and tell use where Sun gives permission to do whatever you want.

        http://www.docstoc.com/docs/69703120/9-SJWT-copyright-notices

        Google was too lazy to even strip them out.
        alsobannedfromzdnet
      • RE: Android OS bombshell: Did Google illegally lift copyrighted code?

        @sjvn@...

        You make a valuable point Ed Bott seems to want to sweep under the rug: it is as you say, a long way from being done.

        As for "whopping fine", I too am shaking my head in disbelief at the way they left the notices in, but making them pay a whopping fine just to indulge Oracle's greed would be very bad for the whole software industry.

        If it hadn't been for Google's carelessness, this case would instead have been a good chance to overturn some very bad precedents in software patent law and bring some sanity to it. But now I am beginning to doubt that is possible.
        mejohnsn
      • RE: Android OS bombshell: Did Google illegally lift copyrighted code?

        @mejohnsn If they are in violation why shouldn't they pay a "whopping fine"? This isn't an anti Google position, it's about consequences. If Google is as blatantly in violation as it appears they are, there needs to be consequences. When companies or people do something wrong and get little more than a slap on the wrist they don't learn and will continue this activity knowing the little slap on the wrist will cost them less than doing the right thing. Not only does that company/person not learn but the next company/person learns they can do the same with minimal consequences. What is an appropriate fine, I have no idea but it would have to be large enough to deter them or any other company from doing the same thing down the road.
        non-biased
    • RE: Android OS bombshell: Did Google illegally lift copyrighted code?

      @Ron Bergundy

      Just checking - can you confirm that it's OK for me to rob the liquor store or the bank as long as I give the money to charity? I would be very careful not to keep any of it for myself, just as Google gives away Android for the good of all, not to place their search onto ever more devices for the purpose of generating ad revenue.
      1DaveN