by Jin S. Kim
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 particular document is the “Lindholm document”, an email written by Google engineer Tim Lindholm in August 2010. Mueller uploaded a joint letter by Oracle and Google concerning the Lindholm document to Scribd. The Lindholm document:
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.
It is clear from this email that Java for Android and Chrome was used without a license. Mueller points to an email written by Andy Rubin in October 2005:
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
Google chose option #2, and five years later led to the Lindholm document. Mueller:
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?
A permanent injunction would be devastating for Android, and device manufacturers like Samsung and HTC.