...from: http://fosspatents.blogspot.com/2011/08/oracle-and-google-keep-wrangling-ove...
AUG 6, 2011 Oracle and Google keep wrangling over potentially impactful Lindholm draft email Florian Mueller [...] Around midnight Friday/Saturday, several new documents related to this case were filed with the U.S. District Court for the Northern District of California, and the most important one of those filings is a joint letter by Oracle and Google concerning the so-called Lindholm email.
[...] Judge Alsup -- the federal judge presiding over this litigation -- attaches a great deal of importance to that particular document. At a recent hearing, he essentially said that a good trial lawyer would just need that document "and the Magna Carta" (arguably the origin of common law) to win this case on Oracle's behalf and have Google found to infringe Oracle's rights willfully. The judge told Google that "you are going to be on the losing end of this document" with "profound implications for a permanent injunction". Let me add that a finding of willful infringement would not only make an injunction much more likely than otherwise. It can also result in a tripling of whatever damages will be awarded.
The two potential killer emails: the Lindholm draft email and the Rubin email
This is the content of the Lindholm draft email:
"What we've actually been asked to do (by Larry [Page] and Sergey [Brin]) 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. [...] [a second email message -] a certain email written by Android founder Andy Rubin may be even more revealing. In that one, Rubin outlined two options, the second one of which was apparently chosen: it amounted to going ahead with Java on an unlicensed basis, despite being fully aware of the risk of blowback at a later point in time ("Do Java anyway and defend our decision, perhaps making enemies along the way"). The Rubin email is almost five years older than the Lindholm email. At the time of the Rubin email, Android had not been released yet, but quite some development work had already been done at that point, so if the Android team had decided to switch to a non-Java programming language, it would have had to rewrite large parts of its software (the Rubin email describes this as "[a]bandon our work and [switch to .NET/C#]". By contrast, the Lindholm email was written in August 2010, shortly before Oracle's lawsuit against Google. At that point, the Android team had already developed far more Java-related code than five years earlier, but even more importantly, a huge number of Android applications had already been written in Java. Android's developers were way beyond the point of no return, and the assessment that all other alternatives "suck" has to be seen in light of that circumstance. There were significant switching costs (including a very significant delay) at the time of the Rubin email, but switching costs at the time of the Lindholm draft email were prohibitive.
It's certainly remarkable that those two emails show a consistent attitude: the Android team basically says "let's just infringe" whenever an intellectual property issue comes up. If they did this to Oracle, what about the intellectual property of other companies like Apple, Microsoft,eBay and Skyhook?
[...] Willful infringement reduces all assertions of antitrust violations to absurdity
On Wednesday, Google's chief legal officer, David Drummond, posted to Google's corporate blog an article entitled "When patents attack Android". That one contains a number of antitrust allegations (without any evidence presented so far) against Apple, Microsoft, Oracle "and others" asserting intellectual property rights against Android.
Any claim that other companies act anticompetitively is completely undermined by a finding of willful infringement. It's not just a credibility issue such as in connection with Google's newly-minted general criticism of software patents. It's worse than that. Antitrust law simply wasn't designed to provide immunity to reckless infringers who just decide to infringe rather than rewrite code to adopt a different programming language.
[...]
Decision should be handed shortly
I'm sure the court will decide very quickly -- in light of the upcoming deposition of Mr. Lindholm -- on the issues raised by the new joint letter.
Google's lawyers may have a point if it's true that the Lindholm document is actually just an auto-saved draft of an email that ultimately was protected by the attorney-client privilege. But so far the court doesn't seem to buy Google's arguments that the Lindholm draft email is subject to the attorney-client privilege.
The truth is out there anyway. The question is only whether this particular piece of evidence will have legal weight.
Wayne Billing Classroom Technology Support Audio Visual and Classroom Technology Support 130 Machray Hall Building 474-6649 474-7625 (fax) Wayne_Billing@umanitoba.ca