Linked by Thom Holwerda on Sun 14th Nov 2010 22:41 UTC
Legal About time! Google has responded to Oracle's amended complaint in the big Oracle v Google patent and copyright hoedown, and it's a contradictory grab bag of various defences, basically throwing everything and seeing what sticks - a normal and common course of events in cases like this. There are some juicy claims in there.
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RE[11]: PolicyNodeImpl
by ricegf on Mon 15th Nov 2010 12:12 UTC in reply to "RE[10]: PolicyNodeImpl"
ricegf
Member since:
2007-04-25

If it is distributing


Putting code in a repository accessible by others is clearly distributing. I think your "If" is unnecessary here.

and that is indeed the complaint


The complaint (I think) is that said distribution was done not in accordance with the offered license, and thus is a copyright infringement.

then all that Google needs to do is remove the files from their git repository, and carry on.


If the judge or jury agrees. Or Google may well be liable for substantial damages, if the commercial value of the unlicensed file is determined to have been damaged or Google is determined to have acted recklessly. In Jacobsen v. Katzer, for example, the damages were $100,000, although the case was quite a bit more complex than our "simple" discussion here (is the law ever really simple?). It also involved patent counter-claims, cyber-squatting claims, abusing cute kittens claims, and as much confusing language as legal minds could render. Kind of like Oracle v. Google. :-D

Look at it this way. Say I put all 7 Harry Potter novels on gitorious. Ms. Rowling sues my butt. Do you really believe that if I simply remove the files, I have no further liability?

Or do you mean to argue that distributing in violation of the GPL can be cured by simply not distributing any more? But that's incorrect, too - if you distribute in violation of the GPL, then you are violating *copyright*, not the GPL (because you are distributing without a license - the GPL thus doesn't apply, because the GPL is a license, not a contract).

And you can most certainly win damages for copyright violation. Happens with distressing frequency.

Now I have no idea whether Google violated Oracle's copyright, of course, and I'm not a lawyer, but having studied copyright as it relates to open source software for many years now, I'm fairly certain the above isn't terribly inaccurate (can you tell I've dealt with lawyers for far too long :-D ).

The only way that it makes sense is if Oracle believe they will get a cut of Android.


Or an obscenely large lump sum of money. Or they are in league with another company that makes competing smartphones that is having their butt kicked by Android (and really, who isn't?), and are hoping to damage Android's reputation, market share, or profitability for smartphone manufacturers. Or they have motives we haven't discerned, because we don't know their trade secrets. Or...

Oracle's problem lies in the fact that the files in question are not part of Android.


Whether the files are distributed on a smartphone is irrelevant in a copyright lawsuit. Simple distributing (if indeed that happened) is sufficient to cause problems for Google and potential income for Oracle.

Reply Parent Score: 2

RE[12]: PolicyNodeImpl
by lemur2 on Mon 15th Nov 2010 12:50 in reply to "RE[11]: PolicyNodeImpl"
lemur2 Member since:
2007-02-17

"If it is distributing


Putting code in a repository accessible by others is clearly distributing. I think your "If" is unnecessary here.
"

A matter of opinion, but OK ...

"and that is indeed the complaint


The complaint (I think) is that said distribution was done not in accordance with the offered license, and thus is a copyright infringement.
"

Fine. There are levels of this. Although it is by no means a given, let's assume for the moment for the sake of discussion that there was indeed copyright infringement.

"then all that Google needs to do is remove the files from their git repository, and carry on.


If the judge or jury agrees. Or Google may well be liable for substantial damages, if the commercial value of the unlicensed file is determined to have been damaged or Google is determined to have acted recklessly.
"

Oracle/Sun released the file as GPL. The GPL requires that if you re-distribute the code, modified or not, then you must make the source code available.

This Google did. The only possible non-compliance was that Google did not offer downstream recipients the same license as the code had when Google got it. Hence the only possible damage is to downstream recipients ... not to Oracle.

In Jacobsen v. Katzer, for example, the damages were $100,000, although the case was quite a bit more complex than our "simple" discussion here (is the law ever really simple?). It also involved patent counter-claims, cyber-squatting claims, abusing cute kittens claims, and as much confusing language as legal minds could render. Kind of like Oracle v. Google. :-D


Except for the crucial bits that you left out. The original code in Jacobsen v. Katzer was not licensed GPL, but merely open source. The problem here was that the recipient of the code tried to close it, charge downstream recipients, applied for patents for elements within the code that the recipient did not invent, and then tried to sue the original author as having violated the patents!

Oracle vs Google involves nothing of the kind. After all, remember that the GPL license requires that Google make the source code available, which is what Google did. Precisely the opposite of Jacobsen v. Katzer.

Look at it this way. Say I put all 7 Harry Potter novels on gitorious. Ms. Rowling sues my butt. Do you really believe that if I simply remove the files, I have no further liability?


Ms. Rowling, the copyright owner, requires that you do NOT copy & redistribute her work without her permission.

To get their full permission, Sun/Oracle, as authors of the code at question in this case, requires that you DO make the source code publicly available if you do redistribute it.

Just a teeny tiny bit of difference in the details there, don't you think? Hmmmm?

Or do you mean to argue that distributing in violation of the GPL can be cured by simply not distributing any more? But that's incorrect, too - if you distribute in violation of the GPL, then you are violating *copyright*, not the GPL (because you are distributing without a license - the GPL thus doesn't apply, because the GPL is a license, not a contract).


No. I mean that: if you distribute the code, the GPL requires that you also make available the source code to downstream recipients of derived works. Google did make available to downstream recipients the source code of the derived work. Where is the damage?

And you can most certainly win damages for copyright violation. Happens with distressing frequency.


You have to establish that there was a copyright violation, and that there was damage. In the circumstances, given what Google have shown about the code, both of those are going to be very difficult for Oracle to prove.

Now I have no idea whether Google violated Oracle's copyright, of course, and I'm not a lawyer, but having studied copyright as it relates to open source software for many years now, I'm fairly certain the above isn't terribly inaccurate (can you tell I've dealt with lawyers for far too long :-D ).


It isn't terribly inaccurate as a description for some kinds of copyright cases ... such as Ms. Rowlings type of cases, for example. Unfortunately it misses the most fundamental of important details about the particular case of Oracle vs Google. The detail that Google complied with everything required in the GPL except putting a GPL notice in the header is one such detail. Perhaps Google will need to add such a notice to the header. OK, so? How does that help Oracle to such a degree that a lawsuit is worthwhile?

"The only way that it makes sense is if Oracle believe they will get a cut of Android.


Or an obscenely large lump sum of money.
"

Google didn't make any money from the files in question. Therefore, under any reasonable evaluation, damages = zero.

Sorry Oracle, but there is no pot of Android gold here for you.

Or they are in league with another company that makes competing smartphones that is having their butt kicked by Android (and really, who isn't?), and are hoping to damage Android's reputation, market share, or profitability for smartphone manufacturers. Or they have motives we haven't discerned, because we don't know their trade secrets. Or...


The damage to reputations is most likely to happen to Oracle's reputation, suing other companies over nothing.

Oracle don't make smartphones. The code in question is GPL.

Google didn't commit industrial espionage and send "agents" into Oracle offices and somehow "steal" trade secret code ... which Oracle had released as open source! Get real! At least try to make some sense! Sheesh.

"Oracle's problem lies in the fact that the files in question are not part of Android.


Whether the files are distributed on a smartphone is irrelevant in a copyright lawsuit.
"

Au contraire, it is entirely relevant to the question of damages. Precisely on point for that question, actually.

Simple distributing (if indeed that happened) is sufficient to cause problems for Google and potential income for Oracle.


Sigh! Maybe you will get it one day. Oracle released the code in question as open source. OK? Got it? Think about it for a second. Mull on it. Let the concept seep into your head.

Not only just open source, but under the GPL, which requires Google to make the source code available if Google re-distribute it.

Ponder on that for a while, and get back to me.

Edited 2010-11-15 12:57 UTC

Reply Parent Score: 2

RE[13]: PolicyNodeImpl
by Hiev on Mon 15th Nov 2010 15:13 in reply to "RE[12]: PolicyNodeImpl"
Hiev Member since:
2005-09-27

Watch out your statements dude, cause if a propietary company decompiles GPL code and relicenses it like google and using the same distribution trick google is using then I bet you would go ape shit.

Reply Parent Score: 2

RE[13]: PolicyNodeImpl
by indieinvader on Mon 15th Nov 2010 22:02 in reply to "RE[12]: PolicyNodeImpl"
indieinvader Member since:
2009-08-11

Hold on, what's the problem here? What Google did is perfectly legal: There is nothing in the GPL that says you can't decompile GPL'ed binaries or redistribute said decompiled code; it's still licensed under the GPL.

I would also mention that putting code in the same source tree doesn't make all of the code part of the same work. For example, in one of my projects I have rhino.jar and closure-compiler.jar in my build directory. Rhino is MPL/GPL'd and Closure Compiler is Apache Licensed but my project is New BSD licensed; the same goes for jQuery. Am I infringing on Mozilla and Google's copyrights to their respective works? No. These tools are in my source tree for testing and minifying, nothing else.

Reply Parent Score: 1

RE[13]: PolicyNodeImpl
by ricegf on Tue 16th Nov 2010 02:53 in reply to "RE[12]: PolicyNodeImpl"
ricegf Member since:
2007-04-25

I'm afraid you've completely missed the point (and with a remarkable number of words, too).

You see, the GPL grants the right to copy only if you conform to its terms. If you don't conform to its terms (which is what Oracle is alleging about Google, I believe), then the GPL's remaining provisions (about which you write with such passion and at such length) don't actually matter a whit. They don't apply.

I have no idea if Google screwed up or if they complied with the terms of the license just fine. But IF Google didn't abide by the GPL, they've violated Oracle's copyright and are liable for whatever remedies the court decrees (which is, of course, the relevance of Jacobsen v. Katzer despite the other differences you list).

It really is just that simple.

Reply Parent Score: 2