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Mueller is forced to back off Android copyright infringement claims

Echos Microsoft's message
Mon Jan 24 2011, 17:45

THE FALLOUT from Florian Mueller's claim that files and comments in Google's Android source archive show that parts of the code were copied and released without licence has left Mueller struggling to defend his allegations.

Over the weekend, a number of commentators posted their analyses of Mueller's claims, with Groklaw doing its usual forensic legal dissection of the matter and pouring cold water all over Mueller's accusations.

The reports at other websites led Mueller to attempt to justify his comments and provide more 'evidence' to back up his claims. While claiming one report "refers to something I didn't write, and what's worse, displays a fundamental misconception concerning copyright infringement", he whinged that another website's debunking had a "sensational but grossly inaccurate title".

Mueller repeated his claim that a number of files in Oracle's Exhibit J were relicensed, "apparently without permission" to the Apache Software License. The noisy proprietary software advocate said that "relicensing someone else's software on open source terms is not a harmless sport. Third parties may directly or indirectly obtain those files and, in good-faith reliance upon their license headers, use and distribute such software." He apparently hoped that readers wouldn't notice that the files in question had been licensed by Sun Microsystems under the GPL, and were merely relicensed by an Open Handset Alliance member, and not by Google, under the Apache Software Licence, a licence that is widely recognised as being compatible with, or like a subset of, the GPL.

If that sentiment sounds somehow familiar, then cast your mind back to August 2010, when Microsoft claimed that Android wasn't free for the smartphone makers that choose to install the operating system. The following month, Tivanka Ellawala, a financial officer at Microsoft, made what can now be seen as a precursor to Mueller's comments, saying, "It does infringe on a bunch of patents, and there's a cost associated with that." That was merely Microsoft bluster, of course, because she didn't identify any patents to support that threatening claim.

Mueller added, "I'm sure those companies didn't intend to infringe Oracle's rights. They probably relied on the presumed legality of the Android codebase." But he wasn't specific.

Against charges that he had claimed all Android devices contain source code that infringes Oracle's copyright, Mueller wrote, "I never claimed that every Android device out there contains the code I identified," adding, "I just referred to the Android software, and if the code offered on android.kernel.git.org doesn't constitute Android, what else does?" It had apparently never occurred to him to actually examine the Android software that's loaded on any devices, as opposed to the tools provided to developers. Some of these, like the files he found, were distributed under the GPL by Sun long ago. No matter though, as his goal apparently is to paint Google and Android in a bad light in the press, without any regard to the actual legal validity of his allegations, which he's not competent to know with certainty.

Mueller asserted that the code he decompiled did come from the general branch of the Android source tree, and not from a testing branch as one commentator had claimed. It had been said that the files referenced by Mueller in his original article had been removed from the source tree on 14 January 2011, but Mueller claimed that he could still download them from some location after his original blog post appeared, which was published on 21 January 2011.

By going after professional members of the IT industry press, Mueller is only likely to have opened up his allegations to even more intense scrutiny. It is likely that this sideshow to the actual Oracle v. Google litigation will ramble on as long as Mueller can keep it in play, even though no one knows when the two firms involved will see the inside of a courtroom.

Perhaps Groklaw's legal analysis of Mueller's attack piece expresses the most appropriate summary of this story so far. As Pamela Jones wrote, "It's complex analyzing copyright infringement claims, in other words, and no one with the necessary expertise at this point has done that analysis." µ

 

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