Florian Mueller:

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.