Edible Apple

If you haven’t been paying attention to every Android-related lawsuit, who can blame you? With upwards of 50 separate cases currently in play, it’s decidedly challenging, if not impossible, to keep tabs on every single case.

But one of the more important cases is Oracle’s suit against Google for including copyrightable java code in Android without a license. Consequently, Oracle is suing Google and is hoping for a payout in the billions of dollars for what it claims was willful infringement from Google along with, potentially, a high licensing fee per each Android handset sold.

At the heart of the ongoing dispute between Google and Oracle is an email from Google engineer Tim Lindholm which reads:

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.

Well that’s sure as much of a smoking a gun as you tend to see these days. Google clearly knew it had to license Java for Android yet wasn’t able to reach an amicable licensing agreement with Sun (which was subsequently acquired by Oracle). Nevertheless, Google decided to infringe away and deal with the ramifications later.

This attitude of nonchalance was evident in another Google email, this one from Android founder Andy Rubin where he suggested that Google “Do Java anyway and defend our decision, perhaps making enemies along the way.”

Rubin further noted that if Google abandoned Java due to licensing issues, the Android team would have to abandon their work and switch to .NET/C#.

Note that Rubin’s email is from 2005 whereas Lindholm’s is from August 2010. So even if one were to try and give Google the benefit of the doubt, it seems abundantly clear that they were willing to play a dangerous game of patent roulette and forgo a license that by all accounts their Android team felt they needed.

Looking at Google’s actions from a wider lens, FOSS Patents writes:

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?

Now Google has sought to suppress these emails claiming attorney client confidentiality, motions that Judge Alsup (who you might remember from the Psystar case) has summarily dismissed.

“Attorney-client privilege protects communications made between an attorney and his or her client for the purpose of obtaining legal advice,” Alsup explained in his ruling. “Google states that the addressee field of the draft message is blank, indicating that the draft never was sent to anyone. Thus, the document is not a communication of any type, much less a communication protected by the attorney-client privilege.”

Google, for its part, argued that the email in question was a draft that eventually turned into a final version that was sent to Google’s in-house lawyers with “attorney work product” markings. Alsup, though, wasn’t swayed and stated that merely marking something attorney work product does not make it so.

Indeed, it’s become common practice amongst companies and law firms to label all email correspondence as attorney client privileged. Again, that in and of itself is not sufficient. Rather, attorney client privilege protection only arises when a communication either seeks or dispenses advice of a legal nature.