Google to Android Developers: ‘Do Not Develop in the Open’

In a legal filing in U.S. District Court in San Francisco this morning, a copy of which was obtained from Oracle by RWW, attorneys for Oracle Corp. tell the judge in the ongoing infringement lawsuit against Google that it’s willing to reopen negotiations for a settlement. Minutes ago, Google responded to that notice by telling the court it’s willing to make executives available for settlement talks.

These events after documents filed yesterday in the case, and first uncovered by journalist Florian Mueller, reveal internal Google strategy briefings where it was suggested that Android should be developed on a course that appears to be open source, but actually is not. Instead, the documents from mid-2009 suggest, preferential treatment should be given specifically to Motorola Mobility and Verizon Wireless for being the first to develop Android phones to Google specifications.

“If we gave it away, how can we ensure we get to benefit from it?” reads a header from one slide in the strategy session, again uncovered by Mueller. Bullet point #2 in that slide responds, “Do not develop in the open. Instead, make source code available after innovation is complete.”

Then bullet point #3 suggests that Motorola and VZW be given “non-contractual time-to-market advantage” for being the first to develop phones to Google’s specification.

According to Mueller, who has been covering the Oracle v. Google case in-depth for his FOSS Patents blog, the strategy session document was one of those which Judge William Alsup declared should be made public over Google’s objections. The extreme likelihood of the authenticity of this document could effectively torpedo Google’s defense of its actions in engineering a virtual machine system called Dalvik for Android based on Java, which was then a product of Sun Microsystems.

The Dalvik conspiracy?

When Google originally developed Dalvik, it was with the intention of producing a smaller, faster, more nimble interpreter of Java bytecode that could more easily be deployed on smartphones. In May 2008, while attending a Google I/O conference where a presentation on Dalvik was being held, Sun engineer John Rose publicly expressed excitement and enthusiasm about Dalvik, even giving Google’s engineers advice as to how to proceed.

So as far as those two companies perceived it, no secrets were being stolen because there were no secrets to steal. But since there was no legal agreement to that effect, the question to this point has been whether that mutual understanding necessarily passes to Sun’s successor company, Oracle. However, if the mutual understanding between Sun and Google had been based around Google’s intention to deploy Dalvik in a purely open source manner, this document discovered today flies in the face of that agreement, casting doubts on Google’s intentions.

The news is just the latest string of bad revelations to descend upon Google. A deposition entered into the record from Google engineer Joshua Bloch, who may have even held the title Chief Java Architect, contains testimony indicating that Bloch may have copied algorithms from Sun code into Google code. This, from Bloch’s perspective, may not only have been legal but encouraged. Nonetheless, it now plays into an emerging Oracle theory that Google may have had more proprietary plans for leveraging Sun technology for its own purposes.

But journalist Mueller now sees a second torpedo, headed straight for Google’s proposed takeover of Motorola Mobility. Antitrust regulators will undoubtedly be interested in these revelations. “If Google already intended to give privileged access to Motorola in the past,” Mueller writes, “how can anyone seriously believe that if the acquisition of Motorola Mobility was closed, a wholly owned Google subsidiary named Motorola Mobility would not enjoy key privileges over its competitors?”

An endgame may be in sight

In Oracle’s statement to the court this morning, it suggests that Judge Alsup’s suggestion that Google sit down and talk settlement before the case begins, is a good one:

Oracle concurs with the Court’s view that an additional attempt at settlement of the case through mediation before a United State Magistrate Judge is warranted. Oracle has found previous efforts at settlement, including private discussions between the parties, frustrating for lack of follow-through, and believes that those efforts have not exhausted the possibilities for resolving the case.

As suggested by the Court, Oracle considers it essential that both parties bring top-level executives. Accordingly, Oracle’s executive representatives in the mediation before the Magistrate Judge will be Safra Catz, President of Oracle Corporation, and Thomas Kurian, Executive Vice President of Oracle Product Development.

Oracle will strive to make its representatives available as necessary and proposes that the mediation occur before the end of September.

In Google’s response to Oracle’s request, obtained by RWW from Google just moments ago, the company says it is willing to negotiate, and will make executives available for that purpose.

Google welcomes the Court’s suggestion that the parties participate in a mediation of this case before a Magistrate Judge. Google does not object to participating before a Magistrate Judge who is not otherwise involved in this case.

Google recognizes the importance of having top executives of the parties attend the Court-ordered mediation. Google proposes that Andrew Rubin, who is Senior Vice President, Mobile and reports directly to the Chief Executive Officer, attend for Google together with Kent Walker, Vice President and General Counsel of Google. Mr. Rubin’s executive responsibilities include all of Google’s mobile business, of which the Android business is a part. Mr. Rubin is knowledgeable regarding the issues in this case and he is fully empowered to resolve this matter on reasonable terms.

Google also understands from counsel for Oracle that they propose that Safra Catz and Thomas Kurian attend on behalf of Oracle — and Google agrees with this choice. Ms. Catz is one of two Presidents of Oracle who, like Mr. Rubin, reports directly to Oracle’s Chief Executive Officer. Mr. Rubin and Ms. Catz were involved in previous discussions involving the subject matter at issue in this case.

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