

Photo by jeff_golden on Flickr. Some rights reserved

Here's Larry Page's first headache as chief executive of Google: figuring out how to handle Oracle's lawsuit against the company in which it is suing over seven Java patents (acquired with its acquisition in 2009 of Sun Microsystems) and some copyrighted material.

The headache may need some extra-strong pills: an analysis by Florian Mueller, whose blogpost about Android's patent weakness we featured here earlier this week, suggests that " evidence is mounting that different components of the Android mobile operating system may indeed violate copyrights of Sun Microsystems".

Mueller says in his blogpost says that he has "discovered additional material that Oracle might present to the court as examples of copyright-infringing material in the Android codebase".

Update: but see the followup, which suggests that this is by no means open-and-shut.)

(Mueller, by the way, is a strong open source advocate , besides being an intellectual property lawyer . But he's also a pragmatist who recognises that software patents are a fact of life, particularly in the US technology industry, and that they can affect the development of many businesses.)

He says that he has found "six more files" in Android that show the same pattern of direct copying as Oracle is complaining about from Sun's original Java code. The files form part of the Android 2.2 and 2.3 (Froyo and Gingerbread) code.

And what may prove extremely difficult for Google:

"In addition, I have identified 37 files marked as "PROPRIETARY/CONFIDENTIAL" by Sun and a copyright notice file that says: "DO NOT DISTRIBUTE!" Those files appear to relate to the Mobile Media API of the Sun Java Wireless Toolkit. Unless Google obtained a license to that code (which is unlikely given the content and tone of those warnings), this constitutes another breach."

Mueller suggests - following up on some comments on Reddit and elsewhere - that some of the early Android developers might have used a decompiler on the Sun Java code in order to generate their own source code.

So the detective work began:

"I downloaded a Java decompiler named JAD. And when I decompiled PolicyNodeImpl.class from J2SE 5.0, the result was pretty much the same source code as Android's PolicyNodeImpl.java code (which Oracle presented in its Exhibit J). My "PolicyNodeImpl synopsis" document shows the similarities."... My synopsis PDF files document the same problem: Android contains, under the Apache license, code that is essentially just decompiled code of Oracle/Sun software that was never licensed to Apache.... A copyright infringement is a copyright infringement, and if Google publishes code under a license for which it was never made available by its rightful owner, that's a serious legal problem.

You can see how it might have made sense, if that's what happened. After all Java was owned by Sun, which was run by a guy with a ponytail who blogged and tweeted and stuff, and so nothing bad could ever happen even if it was sliiiightly wrong to reverse-compile the code. Right? (We're not saying that was how it happened. At all. It's just for illustrative purposes.)

Enter Larry Ellison and Oracle swallowing Sun, and the patent lawyers start to get in. If you want to sir in a bit of conspiracy, Ellison is a longtime friend of Apple chief executive Steve Jobs. Sure, that's why Oracle's suing Android. A terrific conspiracy, except that nobody in Oracle forced anyone in Google or the Apache foundation to grab the Sun code.

Simply copying is, well, copyright infringement, and if proven then it lays the copier open to damages in proportion to the amount of copying - and the distribution of the illicitly copied content.

Which in the case of Android would be millions of times, because it has helped to sell millions of handsets. That in turn means that Oracle can go after both Google, for the initial infringement (demanding damages per copy) and also the handset and tablet makers, on the basis that they have infringed its intellectual property too. Which would mean that they're liable to pay Oracle some money too. Plus legal costs. (We don't often write about Oracle on these pages, but for those who don't know, its founder and chief executive doesn't play hardball - he plays neutroniumball.)

Has Google indemnified those handset makers against any infringement in Android? Likely not. That could make life rather uncomfortable for Page. And it might also explain why LG said recently that it doesn't want to rely solely on Android phones, but is keeping its options open with Windows Phone 7.

Engadget noted back in October that Google's response then to the Oracle lawsuit seemed odd: "it basically accuses Sun and Oracle of not playing fair when it comes to Java's open-source license situation and directly implies that parts of Android are based on code that might require a patent license." That Engadget post is worth (re-)reading in detail, because it describes Google's position rather well. And it draws the conclusions of that position, which it says are:

• Because Apache doesn't have a license to test Harmony [the open source Java runtime] with the JCK [Java Compatibility Kit], it doesn't have a license for Sun's Java patents and copyrights either.

• Part of the reason Apache wants a JCK license is to assure its users they have the necessary IP rights.

• Google knew all this and used parts of Harmony in Android anyway.

Which isn't good.

Ed Bott at ZDNet comments that this latest incident - which will send a shiver through a lot of handset companies, even if Google manages to prevail against Oracle in court - suggests that another Google open source project, WebM, might also see the brakes put on.

Bott writes:

"any large company would be foolish, even reckless to adopt Google's WebM codec for Internet video. As I noted earlier this month, "the patents underlying WebM have been obscure up till now but are about to be catapulted into the mainstream by a company with very deep pockets and very big ambitions." If Google can't even vet its source code for obvious examples of copyright infringement, how can a third party conclude that it has thoroughly reviewed the underlying patents for WebM?"

We noted earlier this week that Google is very firmly not suggesting that YouTube or Android is going to move over exclusively to WebM/VP8 encoding and/or playback any time soon. Possibly not because of patents (lack of good widespread codecs and encoding/decoding hardware might be more to do with it). But it may be wise to be cautious there.

So that's two of Google's big open source projects which should be high in the inbox on Page's desk. It wasn't like this last time he was CEO, back before Schmidt took over in 2001; then the only problem was content spammers (they haven't gone away) and how to monetise the web (solved that one, anyhow).

Assuming, that is, that he has a desk and isn't going to try to run the company from a single Cr-48 laptop running ChromeOS. Welcome to the new old job, Larry.