Google fights to hide incriminating emails Google is fighting to hide an email in which it seems to admit to knowingly infringing the Java patents, but with the text already public it will be a hard fight to win. Both companies have filed their arguments, with Oracle putting the case for exposing the email, while Google argues that it is privileged communication. The …
"with the text already public it will be a hard fight to win"
Not really, it can still be dismissed as evidence regardless of how widespread it is - common knowledge can be excluded from trials if its deemed to have been obtained. The (now) ease-of-access is irrelevant to the argument and jurists can be instructed to ignore facts they know from outside the trial. Whether they do or not, or are subconsciously influenced is another matter...
"Not really, it can still be dismissed as evidence regardless of how widespread it is - common knowledge can be excluded from trials if its deemed to have been obtained. "
What exactly are you trying to say here?
And no, it can't be excluded unless the communication was considered privileged. (Which its not, btw)
"What exactly are you trying to say here?"
Well it was written in plain English and even I understood him.
When the judge sums up, he can direct the jury that a piece of publicly known information is not relevant to the case and should not sway them in their deliberations.
It's not rocket science.
No read what he wrote again. Slowly. He didn't make a complete thought.
As to what you thought he said...
Yes, the judge can tell a jury to ignore a piece of evidence even though its been put out in the public eye. An example would be if the police caught a serial killer but all of the evidence they found was based on an illegal search. The judge could tell the jury to ignore the evidence even though that the evidence is already known.
However, this isn't a jury trial and they are still in the discovery phase of a trial. So what's more amazing that this idea is even mentioned. Clearly neither of you have been involved in court cases. His comment had no relevance to issue at hand.
The issue is that somehow the drafts of the e-mails were saved and were handed over to Oracle in the first place. (At least that's how Google puts it.) The truth is that they should have been handed over.
If you bother to read the link to the document written by Oracle's lawyer you will get a better picture of the 'he said/she said' situation.
So it will be interesting to see what the judge has to say.
Note also that if the judge does grant the motion to compel, Google had better not drag their feet. Judges don't like that.
Courts routinely exclude hearsay evidence. Unless the court deems it appropriate for Oracle to discover the document through legal means, that is what the email would be.
The argument over the email being questioned in the title is interesting. If it was in Drafts and never sent, is it actually a communication? Lots of people write drafts and toss them or greatly modify them before sending the actual communication. Moreover, if it was addressed to a bigwig and he never received it, there is no proof he actually heard the argument being presented in the email. So I'd say legally this should be excluded. While the draft gives plaintiffs cause to dig deeper in email looking for other messages similar to the draft, the draft itself is meaningless.
All that being said, I'd say the more problematic email would be the other one mentioned in the article. That one I would say does show willful intent to knowingly violate IP law, and it IS coming from someone who is both in charge and ought to know better.
Sorry no.
This isn't hearsay evidence.
That's my point in that Annihilator's point makes no sense. There is no jury to instruct one way or another. This is an issue of discover and a motion to compel.
To your point... the auto save feature saved several copies of the draft.
All of this is in fact evidence that should have been turned over to Oracle because its a saved copy sitting on the hard drive.
Should this be considered privileged because the intent was to cc their in house counsel? That's one ruling that will go against Google if only for the reason that it would set a very bad and dangerous precedence.
Your logic for excluding this falls flat. Suppose it were a handwritten draft that a secretary has not yet transcribed? Or a dictaphone recording? Or a short hand dictation that hadn't been transcribed? Putting the technology aside the information contained in the drafts are important and while they themselves may not be evidence, they are information that Oracle can use to guide their depositions. Oh yeah, even when you're not on trial, going through a deposition isn't fun.
Just because Oracle doesn't present the draft in court doesn't make it meaningless. ;-)
And yes, you are very correct that the other letter is very problematic to Google.
You'd have to make a pretty creative argument to convince a jury (and a judge) that those excerpts show that they know they're infringing a patent.
One says go the MS route or perhaps niggle a few people, the other says they should maybe consider negotiating a license for their needs which are unspecified in the excerpt and could be anything.
Expect Oracle to interpret it as proof of kitten-murdering regardless, though.
Each side will hand-hold the jury through their interpretation of events. And juries are surprisingly effective at seeing through smokescreens.
I sat jury on a multi-hundred-million $$$ (US) case involving complex organic chemistry, arcane licensing rights, fiddly contracts, and multiple nations' laws. The lawyers made damn sure to stay close to the real facts, 'cause any slip-up would be leapt upon by the competition, and they gave us a detailed, behind-the-scenes education on what really goes on technically and legally in the industry.
Our verdict held up all the way through ultimate appeal in two different national court systems.
I anticipate that Google and Oracle will be similarly advertent in their courtroom proceedings.
Um... perhaps I'm missing something, but why would Oracle need a 'smoking gun' e-mail proving that Google 'willfully infringed' a patent they held on Java? Are Google seriously claiming that they had no idea that Java contained patented technologies, that they didn't do any kind of due dilligence about the licensing/IP issues regarding Java at all, and that it came as a bolt out of the blue? Come on guys - you're not a bedroom coder knocking up a neat little toy project, you're the worlds leading technology company basing the entire technical structure and ecosystem of a platform on IP you don't own, and it's a bit disingenuous to plead ignorance.
Knowing something to be true and being able to prove it are two different things.
<Insert an OJ reference here... >
Oracle needs this letter to show mens rea. That Google acted with a 'dirty mind' or rather they knew what they were doing was in fact illegal (civil not criminal).
If you read the linked document, it goes to show that these documents were already discussed in court where Google, after the fact attempted to claim that they were privileged. Oracle's hired guns in plain English walk through the reasons why they are not privilege.
Also in the document there's a comment from the judge that says...
"Judge Alsup warned Google that at trial “you are going to be on the losing end of this
document” with “profound implications for a permanent injunction.” (Id. 41:5-12)"
and then this...
"After arguing the substance of the Lindholm document at two separate hearings; after asserting
on the merits that the document related only to the Java programming language; after
representing to Judge Alsup that Mr. Lindholm was writing in response to a “question from the
CEO,” not at direction of counsel; after being told by the Court that a good trial lawyer could use
the simple combination of the Lindholm document “and the Magna Carta” to win Oracle’s case
and get an injunction (id. 41:1-4); Google reversed course and claimed that the Lindholm
document was privileged."
Hence this is the smoking gun that pretty much should bring Google to the table to settle this case.
"Oracle needs this letter to show mens rea. That Google acted with a 'dirty mind' or rather they knew what they were doing was in fact illegal (civil not criminal)."
In fact Oracle needs this unsent email to fall through a timewarp and have been written *before* Oracle accused Google of patent infringement. Right now it proves Google engineers knew Oracle had made that claim, not any belief they were infringing before then.
Odds are, despite the judges current stated opinion, a jury will never see this. Engineers aren't qualified to interpret patent law, the opinion that matters will be what Googles lawyers said.
Google have certainly finessed the law to bypass various licence issues and you and others have bitched relentlessly about it. Determining whether there's wilful infringement will come down to whether a jury believes Google believed they'd lawyered and re-engineered their way round the problem identified in that 1st email.
Looking at today's court filing Oracle are well on the way to a spoilation charge over 'vanishing' the Sun website in any case. Taking it down the moment Google started finding interesting posts really wasn't the smartest idea, given spoilation can get cases dismissed.
Right now I stand by my earlier comment: Google can reach court in 5 years time, lose but still end up paying less than if they'd licenced Java up front. Don't forget, the case isn't about billions any longer, the court has already suggested $100mil as a more realistic starting point.
I'm sorry, but when was the memo written?
Are you sure that it was written after the lawsuit was filed?
Also there's the exec's e-mail from 2005 which is also subject to the same argument too.
No need for a timewarp.
As to your
"Google have certainly finessed the law to bypass various licence issues and you and others have bitched relentlessly about it. "
You call it finessed. Others, namely Oracle find it to be illegal.
You do realize that if Oracle gets these documents, then files for a TRO based on them along with other evidence, and its granted... Google will be in a world of hurt.
Even if they settle with Oracle, the hardware manufacturers will then have their bite at the apple so to speak.
You can only tread so far along the razor's edge before you cut yourself or worse.... so much for 'finesse'
Anyone who has ever done anything more than hacking 5-liners KNOWS that there quite possibly might be an "Intellectual Property" attorney in some office somewhere in the world who might well have your name on a cease-and-desist letter in a not-too-distant future.
But you have to ignore that and hope like hell there isn't any.
Yes, this is the state of the business landscape.
If Google needs a license and didn't pay it - FINE!
But this patent stuff should just lead to public burnings of the naked, mutilated bodies of the legal professional involved as well as the CEOs, CIOs, CTOs pushing that kind of crap.
That email doesn't really say very much. All it says is that at some point, other ways of doing it were not viable. Doesn't say that they didn't have more ideas later, or that they are actually infringing now.
And if they're fighting a software patent, "don't be evil" entirely covers it. If Satan himself was fighting a software patent, I'd be carrying his spare pitchfork for him.
@Sam: Sun were probably pleased when Microsoft licensed it for Windows, too ... until they broke the license and tried to fork their own Windows-specific variant, then Sun lawyered up and barred Microsoft from using Java at all, forcing them to go down the CLR/C# route instead. That all sounds awfully familiar somehow...
Actually, that was a *completely* different case.
Microsoft signed a license to put Suns JVM on Windows, but instead put their own almost-but-not-quite compatible VM in Windows, therefore breaking compatability with Java. This is the exact same tactic they used in IE6, which were almost-but-not-quite compatible with the HTML standard. People had the choice of writing for IE6 *or* other browsers, and the often chose IE6.
Sun sued in order to stop Microsoft from completely breaking the Java ecosystem.
What Google has done is almost the opposite. They use their own VM which has nothing to do with the JVM, but they use the Java *language*.
...from both sides.
Google's claim that "it's privileged communication because he might have intended to send it to our lawyer" seems absurd.
Nevertheless, it sounds like they're discussing the need to license Java from Sun. If they chose not to do that, then surely that's just evidence of wilfully breaking license terms?
Not patents.
AFAICT, Oracle are just fishing for wilful patent infringement. Which *might* up the damages claim, but will always be spectacularly hard to prove...
Look,
Here's the simple argument.
The document shows that Google didn't want to pay licensing fees. So they decided to look at alternatives. so that they don't have to pay licensing fees. The document shows that they tried several and they were all failures. (Paraphrasing)
This then leads Google to commit patent and copyright infringement in their efforts to bypass the licensing fees.
The document shows that Google knowingly committed the acts and it wasn't done by some 'rogue programmer'. (That was a reference to Google's WAR Driving activities...)
Google's argument is that they inadvertently provided this 'privileged' document to Oracle and that they didn't waive privilege in court.
Somehow I doubt that its going to fly.
The email fragment doesn't mention licensing fees. It shows they looked at alternatives to Java, but doesn't say why. They might have been looking for something technically better. Indeed, they eventually built their own virtual machine which they believe /is/ technically better for their applications (being register-based instead of stack-based). If something like Dalvik had been available off-the-shelf they might have licensed that instead of rolling their own.
Although you say, "This then leads Google to commit patent and copyright infringement", it's yet to be proven that they did infringe, and this email does not show that any such infringement was knowing. Even if they did avoid Java because of licensing fees, building their own non-infringing system is a legitimate way to do that.
"The document shows that Google didn't want to pay licensing fees. So they decided to look at alternatives. so that they don't have to pay licensing fees"
Agreed. So what has that got to do with wilful patent violation? These weren't necessarily patent licenses - just software licenses.
Wilfully trying to avoid paying software licensing fees is NOT the same as wilfully violating a patent.
"Google claims that the mail was a draft, autosaved by its systems, and was about to have the attorney's name appended to the "to" field. If true that would make it privileged communications and beyond the reach of the court. Oracle, rather delightfully, points out that the first line of the mail read "Hi Andy" which it calls "a reference to Andy Rubin, the business executive in charge of Android". That would make it a business mail, and thus outside privilege."
This is the smoking gun.
Regardless of which side of the peanut gallery you're sitting on, Oracle should win its motion.
First, 'auto saved' or not, the memo is not to legal counsel and thus not privileged. Just CC'ing an email to counsel should not be made or considered privileged. If this were the case then automatically cc'ing everything to counsel would mean all e-mails sans 3rd party communications would be privileged. That's nasty precedence.
The fact that its written 'Hi Andy', shows that even if it were cc'd to legal, the intent was communication to Andy Rubin and not counsel thus should not be considered privileged. Thus the contents of the e-mail is in fact admissible.
Its really bad for Google because it does show that their actions were planned and it is an admission of guilt. Add to this Oracle's other evidence of code being reversed engineered... It could open the door to punitive damages.
Because of the number of Android phones and tablets on the market... with punitive damages... It could bankrupt Google. Well maybe not. All they would have to do is to ramp up their ad machines to print more cash...
My guess is that it will force Google to settle and still pay a shit load of cash to Oracle....
Gumby, do you do any honest research or just spout the what you're paided to spout?
8 consecutive autosaves of an email *with no destination* followed by the final saved copy *with the lawyer CC'd in*. Can you guess which copies Oracle surprised Google and the court with and which one they didn't mention?
Can you guess if the court really ruled against Google yet or Oracle and their friend Florian just made that up?
Right now Boies,Schiller&Flexner is pulling the same stunts they tried with SCO vs the world. Which I'm assuming includes paying shills.
Oracle is asking for the return of at least 12 document which Google now claims to be privileged.
Ignore Florian and focus on the document written by Oracle's counsel. You know the one where Google's lawyer also agreed to the content? (It was linked to the story.)
Google's argument for privilege is joke and it sends a bad precedence. (I liked the post where the guy says he was about to send all his child pornography to his lawyer so its privileged.) But the point I made earlier along with Oracle's writing is that just cc'ing the legal counsel on an e-mail that said 'Hi Andy!' doesn't give it privilege. (And yes, you need a judge to rule.)
I just love your comment about 'paid shills'. I think we both know that both sides aren't above such tactics. But I make a lousy shill. And Google has deep pockets and can afford to buy a few out of their loyal fan base.
So I suggest you just wait and see.
I'm going to bet Oracle wins this one.
If we're all lucky, Oracle gets the TRO. But I doubt you see what that's actually the best thing for everyone involved.
Dude!
Did you bother to read the linked article?
Here's a snippet:
"Ten of the documents at issue here are purportedly drafts of an inculpatory email written by TimLindholm, a Google engineer and former Sun employee, in August 2010; two are copies of the version of that email that was eventually sent. One of the drafts has already been discussed withYour Honor and in open court at Judge Alsup’s insistence. Google did not object on privilege orother grounds either time.Judge Alsup has
twice held that document not privileged. (Dkt Nos. 255, 271). In anextraordinary act of defiance of Judge Alsup’s orders, Google has repeatedly refused to re-produce it, or any others. In light of Judge Alsup’s orders, Oracle should not have to bring thismotion at all, and accordingly reserves its right to seek its fees."
Do you not understand that Google's attorneys are trying to claim privilege after the fact?
Google definitely stepped in to it and I don't mean Chocolate Goo...
So, as I understand the case, this might not as bad for Google as it appears to be.
The case is for Oracle suing over patents related to the Java VM, not Java the language.
Oracle say that Google are violating these patents in the Dalvik VM, Google disagree.
The email says that they've come to the conclusion that they need to get a Java license. This could mean different things, possibly including the licensing of JVM related patents. It might not mean that, I have no idea.
Since Google have their own VM, and don't run Java bytecode on their VM, it can be argued that they aren't using Java at all on Android. The only Java part is the source code in use by the developer, which is then translated into dalvik bytecode.
So, there is no Java copyright violations, no use of Sun/ Oracle developed binary code, no use of the TCK (one of the main pieces of the Java license, see apache harmony) and no unauthorised use of the Java trademarks.
This is a patent case, pure and simple. These emails are wanted to prove wilful infringement, which increases damages; they are of no use to prove the infringement itself.
Whether Google win or lose this case will be decided based on what is inside Dalvik, not some email trail.
"This is a patent case, pure and simple. These emails are wanted to prove wilful infringement, which increases damages; they are of no use to prove the infringement itself.
Whether Google win or lose this case will be decided based on what is inside Dalvik, not some email trail."
I believe its been said that these are enough to also get an injunction against Google and stop the sale and shipment of any more Android devices until the trial has been concluded.
That is to say... HTC, Motorola, Samsung, etc ... will have to idle any production of their tablets and smart phones for the next couple of years as the patent fight continues.
You can do the math on that one.
The clear winner here are HP (Palm OS) and Apple.
You can also include Nokia, and Microsoft along with RIM too...
In terms of losers... AT&T, Sprint, and the other Telcos around the world who will have to pull Android phones from their online shops and wait it out too.
Unless a US court/ trade body has suddenly gained jurisdiction over a Taiwanese/ Japanese/ European company selling in Europe/ Taiwan/ Japan then an injunction will only affect imports and sales into the US.
This is serious for the companies involved, certainly, but that doesn't stop Orange UK (for example) from selling android phones made by HTC.
Nokia survived for years as the worlds biggest phone company without any serious presence in the US. So its certainly possible to get by without a US presence.
I would also suspect that any injunction on US import would be difficult to enforce on android generally (rather than Google licensees) given that some of the manufacturers will have just downloaded the code and modified it to work without putting the google stuff on.
They aren't party to this case, so, (to my understanding) they wouldn't be bound by it. Follow on cases citing this one would have to be brought against those companies.
Also, given that Google manufactures nothing, with everything being done under license, its not as clear cut as simply banning google from import. Since they don't actually import, their partners/ licensees do.
IANAL and now you're getting in to an issue of international law.
I think the short answer is that if the US courts allow a TRO injunction against Google, since both Google and Oracle are in the US it would have a world wide impact.
I don't know what's in the licenses between Google and the manufacturers. Do you?
At the same time, if a TRO was granted, and HTC, Samsung, and Moto all do business in the US. (Moto is HQ'd in the US btw) Do you honestly think that they will go against such an injunction?
Note: This is hypothetical because I don't know even if Oracle will take this route or if it will be granted if they do.
The bottom line. The TRO will hurt Google. It also sends the message to Google that the odds are if going to trial, then they would lose. It would send a clear message to Google that they would be better off negotiating a settlement than go to trial. Which is what we all want as innocent bystanders.
Handing over to the Fucking Brain Inspectors (FBI) people's emails w/o a court order, as they have done in the US and voered in the papers.
They're a US regulated company, and as such under NASD 17.4 and SOX rules, but to name a few. Whilst not all legislation stipulates archiving, it does stipulate production.
"The filer ate the email intended for the Worm".....is the new Battle Cry of Shoreline Drive eh?
Gotta love our legal system.
Someone can call the cops saying im beating my wife or abusing my children and i'll be guilty first with questions later.
These corporations and elite could have a dead body in their lap with the police on scene having witnessed the entire thing and they would still find a legal loophole to get out of it.
Our legal system works for the rich while those of us that can't pay people off are stuck with it.
I reference Mr Ted Kennedy and his lady in the water. Or the recent elites with women hanging from ceilings with the cops saying it "may be suspicious".
Yep maybe the women tied themselves up and threw themselves off a balcony; that sort of thing does happen all the time ya know.
I remember watching on tv once, can't remember what it was on. Criminal ditched a gun in the backseat of a squad car. He knew if he told the cops he'd have extra charges on him but he didn't feel right knowing there was a gun in a patrol car that could endanger another.
So he consulted with his attorney and the attorney was able to put forth the information without getting the criminal in trouble. In cases like this I don't have a problem with it. But when you look at corporate america and the elite if they were faced with a situation like this you know darn well that gun would of been left in the patrol car without a peep being said because they only care about themselves.
Why don't Oracle subpoena the alleged recipients of these incriminating emails?
"Google is fighting to hide an email in which it seems to admit to knowingly infringing the Java patents..The mail was sent by one Tim Lindholm, of Google, in August last year"
According to the preciding Judge there was no indication the draft had been "communicated" to anyone. And Oracle's request that Judge compel Google to produce the Lindholm document was also denied.
"Adding a lawyer’s name as a recipient to the final version of the document does not alter the status of the draft, as the Court has already held"
I'm not sure if the legal profession has caught up with the autosave feature yet, but surely the final addressee is the only one that counts.
http://www.scribd.com/doc/61754518/11-08-05-Oracle-Google-Joint-Letter-Re-Lindholm
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