Android OS bombshell: Did Google illegally lift copyrighted code?

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

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.