It is huge that a lawyer would disclose in a public setting such important confidential numbers. I even have trouble seeing how something like that could be "accidental". It is basically a force of habit among experienced litigators to think and to say, in any number of contexts, "I know this may be relevant but I can't discuss it because it is the subject of a protective order" or "I know the attorneys know this information but it was disclosed under the protective order as being marked for 'attorneys' eyes only'". In all my years of litigating, I don't believe I have ever heard a casual slip on such information, even in otherwise private contexts (e.g., attorneys are discussing with their own client what an adverse party disclosed and are very careful not to disclose something marked for "attorneys' eyes only"). Certainly willful disclosures of this type can even get you disbarred.
But the significance of this breach is not the only thing that caught my eye.
These litigants have been entrenched in scorched-earth litigation for years now in which the working M.O. for both sides is to concede nothing and make everything the subject of endless dispute. Big firm litigators will often do this. It is a great way to rack up bills. Clients in these contexts do not oppose it and very often demand it. And so a lot of wasteful lawyering happens just because everyone understands that this is an all-out war.
To me, then, it seems that the big problem here (in addition to the improper disclosures of highly important confidential information in a public court hearing) was the resistance by the lawyers who did this to simply acknowledging that a big problem existed that required them to stipulate to getting the transcript sealed immediately. Had they done so, it seems the information would never have made the headlines. Instead (and I am sure because it had become the pattern in the case), they could not reach this simple agreement with the other lawyers to deal with the problem but had to find grounds to resist and fight over it.
I know that we as outside observers have limited information upon which to make an assessment here and so the only thing we can truly say from our perspective is "who knows". Yet, if the surface facts reflect the reality, then it is scarcely believable that the lawyers could have so lost perspective as to take this issue to the mat, resulting in such damage to a party. Assuming the facts are as they appear on the surface, this would be very serious misconduct and I can see why Judge Alsup is really mad that it happened.
Suppose, for a moment, the judge believes that there's at least an open question as to whether the revelations were willful. Can the later conduct, in which they acted in such a way as to double down on the mistake, be used to support a finding that the conduct was willful?
Yes, the entire pattern of behavior is relevant, though I would note that judges are highly reluctant to ascribe bad motives to distinguished litigators (and the lawyer involved here fits in that category) and so I would be surprised if the judge took a super-harsh approach in spite of being upset over this. But, again, who knows?
Taking all the facts given us at face value for now, what is the range of punishments the court might impose here, along with what your gut feeling says the most likely outcome(s) are?
Based on the quotes, one thing the court appeared to contemplate was forcing them to inform all future courts of their conduct in this case.
Hard to say here. Federal courts have very broad discretion to impose sanctions for violations of their orders, including those authorized by the Federal Rules of Civil Procedure and also those based on their inherent powers. We are, after all, dealing with contempt of a court order, which is very serious. I would say it is likely here that the court would refer this to the State Bar with a request that it be investigated and this would pose quite a risk for one or more of the attorneys that ethical sanctions would be imposed (these can range from private to public censure to suspension to disbarment, though here I don't think the more extreme remedies would apply unless evidence surfaced to show that this was somehow deliberate). A standing order to the firm or to one or more of the attorneys that they would have to do a formal filing in future cases (say, for a period of x years) disclosing this misconduct is also something I could envision here. This would cause large reputational harm to the lawyer(s) involved and would be fitting, doable, and probably appropriate for such a serious violation. Monetary awards/fines are also possible, though I cannot imagine an award that could reflect the actual damage caused to Google - such awards are usually limited to attorneys' fees and costs incurred in obtaining the contempt order. Discovery-related sanctions are also often imposed in live cases (e.g., limiting the use of certain evidence or treating some fact as admitted that is adverse to the party causing the violation or some such thing), but I don't think would apply here. Jailing of an offending party is also used in civil contempt but only as needed to compel compliance with an order (e.g., you will stew in jail until you disclose your non-protected sources for the facts in this story as you have been previously ordered to do) - again, these wouldn't apply here. So, I think the main sanctions would likely involve those hitting the reputations of the attorneys, either in future court proceedings or through State Bar sanctions. These, by the way, are not trivial. No matter how good a lawyer or a firm, being seen as tarnished can cost you clients, job opportunities, etc., not to mention public humiliation and embarrassment (no small thing for prominent lawyers).
My civpro prof was a collector of Rule11 stories. He liked judges who observed that the rule's "may" language doesn't forbid inventive sanctions. This isn't a rule11 situation, but if I were the judge, in exchange for not reporting the conduct to the local bar, I'd make them all go without cellphones while in the courthouse .. for a year. There are too many billions being thrown around in this litigation for any fine to matter.
Can you point us to a source on that? Preferably the court's orders, if possible.
I'm wondering if that's on Groklaw somewhere? I've heard there's still 'invisible' activity over there regarding files getting uploaded even though PJ is gone now.
> “Even assuming it’s a violation of the protective order...” Haag began to say, when Alsup interrupted her with an exasperated noise.
> “Your firm is one of the biggest litigators in America,” said the judge. “Next time you go into a court somewhere and you ask for confidential documents, I hope someone raises this and says, ‘Your firm violated that order, and why should we give your firm access?’”
> “She just blurted out the two numbers that mattered. She just blurted it out,” said Judge Alsup. “If she had had the recipe for Coca-Cola she could have blurted it out in this court right now.”
I agree that it's huge, but I am reluctant to agree that it's unheard of for a lawyer to disclose confidential information inside a courtroom, especially during an argument having to do with that information.
Maybe things are different in the scenario of high powered lawyers practiced in high value civil suits, but my experience is that run-of-the-mill lawyers are not polished at all in their courtroom behaviors.
Seems unlikely. This could lose Google some money in the long run but doesn't seem to be a major blow against them. Plus it seems like a petty move with no real upside for Oracle as a company, as opposed to if it was a personal argument between two people for which emotional vindication could be a motive.
Oh, plus a lawyer would be risking his entire career too.
I am wondering if release of confidential information such that it appears in official court documents carries enough weight as to be able to impact other legal proceedings that may arise totally unrelated to this case. In other words it's one thing for $1 billion to appear in news articles (and be widely know) and another thing for it to appear in a court transcript which could then be cited as proof that the number is correct and used against the party that didn't want it disclosed (in a way that a news article can't).
Often in negotiation there is bluffing. It's easy to bluff around non-official information is what I am thinking.
Isn't that information part of the discovery process of the case, and is subject to the analysis of both Oracle and court's experts? Oracle lawyer was merely quoting those experts to establish the fact that Google did profit from the alleged violation, hence not fair use. I don't think the formula for Cola would be part of a discovery process. So the analogy would not apply.
"These litigants have been entrenched in scorched-earth litigation for years now in which the working M.O. for both sides is to concede nothing and make everything the subject of endless dispute."
You sound like you have an axe to grind, and any vaguely-related topic gives you an excuse to do so. It tries to hijack the discussions of those topics, though, which is why the downvotes.
I really don't have an axe to grind, I don't have major problems with congress. It was just a little joke I thought sounded funny at the time, because the idea of a scorched earth, win-at-any-cost mentality reminded me of politics. The downvotes are absolutely deserved.
I think jumping to the conclusion that I am searching for any vaguely-related topic to give me an excuse for this sort of comment is completely off base, though. You can look through my comment history to see I don't make those kinds of comments very often.
And now the conversation is wayyyyy off topic, sorry.
You'll notice that humor is not generally well received on HN. That's because most of these accounts are bots I wrote 10 years ago before I had an algorithm that could interpret jokes.
OK. I should have checked your comment history before accusing you of that.
I get frustrated at the style of the thing (hijacking the topic), not just at one person. So you got dumped on from my frustration at multiple people, which is unfair.
While this is a good story, the headline misses by far the point that the body makes - the only reason this is an open secret is because an Oracle lawyer revealed it in public.
A better title might be:
"Google is trying to get Oracle in trouble for revealing confidential figures"
"Unfortunately for Google, those two numbers can be readily found via a website known as Google dot com:"
...followed by two screenshots of searchs for the numbers, both of which only show results with snippets like "according to a transcript of court proceedings from Oracle Corp.'s copyright lawsuit against Google.", "....said in court while disclosing figures Google says shouldn't have been made public", and "Thanks to a lawyer, we know now that Google has made..."
As background, this opinion piece by the lawyer in question may be useful in understanding the mindset of the players. Hurst argues that because API's are not copyrightable, the GPL is dead and Oracle's valiant attempts to defend free software have been foiled:
The Death of "Free" Software . . . or How Google Killed GPLby Annette Hurst (@divaesq)
The developer community may be celebrating today what it perceives as a victory in Oracle v. Google. Google won a verdict that an unauthorized, commercial, competitive, harmful use of software in billions of products is fair use. No copyright expert would have ever predicted such a use would be considered fair. Before celebrating, developers should take a closer look. Not only will creators everywhere suffer from this decision if it remains intact, but the free software movement itself now faces substantial jeopardy.
This wasn't an accidental "slip" by a poorly trained intern. This was a conscious disclosure made by one of Oracle's lead attorneys. She is one of the top IP lawyers in the nation: https://www.orrick.com/People/2/6/2/Annette-Hurst. It is in keeping with the "scorched earth" strategy that has been followed for this case. She knew what she was doing, and she (and her firm) should pay the consequences. If there are no consequences, it will legitimize and reward this strategy.
First comment in that article:
(from Michael Tiemann,
VP Open Source Affairs, Red Hat)
As a person who started the world's first company based on supporting, developing, and maintaining GPL-licensed software (Cygnus Support, 1989), and now a VP at Red Hat, I respectfully submit that you don't really understand the GPL, APIs, nor the fundamental premise of Open Source Software (both as a legal construct and as a short-hand for the business models that it enables). To paraphrase Wolfgang Pauli, "Your arguments are not right. They are not even wrong."
If she really believes the analysis in that piece she is downright incompetent as an IP lawyer. In fact many "copyright experts" predicted the outcome. And it does nothing to threaten copyright in software. All it does is allow for reimplementation of the API.
If she really believes the analysis in that piece she is downright incompetent as an IP lawyer.
No. Regardless of what she actually believes, she is one of the most highly accomplished and sought after IP lawyers in the nation, and a partner and a director at one of the top IP firms in the nations. She may be wrong, she may be even be evil, but she is not incompetent. It is more likely that you and she have different goals. If your logic leads you to conclude that she is incompetent, your logic is simply wrong.
I understand. I'm arguing against the original poster's logic, not their conclusion. As I understand it, the argument is that any IP lawyer who believes what is written in that op-ed could not possibly be competent. I'm asserting that this is false, and that the world is full of competent and successful people who believe things that others find to be incomprehensible, and that their beliefs are not evidence that are incompetent.
I don't don't know whether Hurst is a true-believer in this case. I do know that there are many smart and talented people who have convinced themselves of things that seem absurd from the outside. Some humans have an amazing ability to align their beliefs with their self-interests. Even in the face of beliefs that can scientifically be proven to be false, this often has surprisingly little negative effect on their competence in their field.
I think this comes down to the definition of competent. I was using using the word in the - perhaps loose - sense, of being able to perform a correct legal analysis of the implications of the outcome of the case. For many purposes your definition is certainly valid, and clearly better explains that she will clearly not be out of a job just because she published what I maintain is a completely invalid analysis.
This post is FUD. Her argument contends that the trial determined that because the Java APIs were open, they can be used anywhere and be considered fair use. Therefore code licensed under GPL can be used anywhere and be considered fair use.
A lawyer that has practiced in IP has commented with a rebuttal:
(1) the jury's verdict concerns the APIs, not the software itself. The APIs should never have been subject to copyrightability, IMHO (see http://epiclaw.net/sean-hogle-articles/oracle-v-google), but setting that aside, your assertion that the jury somehow killed software licensing or open source licensing is baseless. Only the APIs, i.e. the labels and classification methods, were at issue in the trial, not the code implementing those APIs. (2) "Google is an advertising company": I've seen this comment before, and it's an obvious back-handed slam at Google. Google is a technology company whose business model relies on advertising. Google has not only contributed more to the advancement of humanity with its innovations than most companies ever have, but it has also been a force for good in reinvigorating fair use in the digital age. (3) "You can kiss GPL goodbye". Google has adopted the OpenJDK Java implementation licensed under GPL. Android is GPL-based.
I'm pretty sure that it was written as part of the legal effort on the case, yes. They're trying to try the case in the press, not just in the courts.
I believe that much more than I believe that a highly-paid and very busy lawyer believed so strongly about the issue that she took some of her scarce personal time to write an editorial that just happened to line up with the position of her client in the case she's litigating.
This article reads very weirdly to me. Are they arguing that disclosing confidential information, and subsequently opposing steps to contain the disclosed information, is perfectly fine because ... it can be found on the internet, precisely because of this disclosure? This makes absolutely no sense to me.
I think they did realize it, because they mention in the article itself that was the source of the information.... I think it is more likely the headline creator didn't realize it.
On further review, I think the confusing nature of the article stems for the author not being careful to separate the original trial from the current contempt of court proceedings.
It's indeed a little silly / funny, although logical, that Google insists Oracle continues to redact things when it's now common knowledge. But the overall proceedings are certainly not silly or frivolous.
That would make sense but I don't think it's true based on the last paragraph:
> Whatever the case, Google is probably right that sealing the transcript faster would have stopped the news story from ever breaking. But the cat’s out of the bag now, and Google’s private information is out there for everyone to see, on Google. Maybe it should try using the right to be forgotten?
The other seems to fully understand that the statements in court led to the information being publicly available but somehow doesn't understand why that would lead to google's reaction. Truly bizarre.
She certainly realizes the causal relationship. The Google search results are raised, because at this point, it's not the revelation that is the subject at hand -- rather it is a criticism of the procedure that was not followed, and what matters.
Doesn't matter. It was the lawyers' mistake, not the companies. If I order a pizza and the delivery driver mows down a crowd of people with his car on the way to me, that's not my fault.
The pizza delivery person isn't acting as your agent and representative.
If you work for a company, and break something serious for a client - it's not you who gets sued, it's your company because you were acting on their behalf.
These lawyers were hired by Oracle to conduct legal matters on Oracle's behalf - if they win the case, it's not the lawyers who take home the prize - it's Oracle. Conversely, if they lose, it's not the lawyers who pay the penalty - it's Oracle.
So, it's not out of the real of possibility that Oracle will be fined or penalized in some way.
Nope, if they screw up their conduct as a lawyer, that's their problem. It's the same as paying a contractor to build a building for you. You get the outcome, but if in the process the contractor gets drunk and beats up one of the construction workers, he gets in trouble, not you.
There is a wide gap between paying for a service and hiring an employee to work for the company.
If I pay someone a million dollars to do work for me. And they cause half a million dollars in damages due to negligence, it's coming out of their pay.
Oracle would probably sue if Google said something about buying Sun...
>“She just blurted out the two numbers that mattered. She just blurted it out,” said Judge Alsup. “If she had had the recipe for Coca-Cola she could have blurted it out in this court right now.”
Knowing revenue isn't exactly the same as knowing a formula. It's odd that Google cares so much.
I don't think that they care about that so much as making the point that nobody else should think about copying Oracle's tactics. The attorneys for Oracle were remarkably unscrupulous in the way that they conducted their case, IMO, and this is part of the payback, from the judge as well as Google's lawyers.
Google cares because they didn't want the info made public.
The judge cares, and everyone else should care, because revealing confidential information in court should never be tolerated, no matter how trivial that information might seem. If people get away with it, it undermines that principle and makes it more likely to happen in the future.
Having read this article it reminds me somewhat of tactics in movies where lawyers deliberately ask an inflammatory question in front of a jury purely for the purpose of planting a seed, and before anyone can yell objection they immediately retract knowing that the damage has been done. The judge may strike it from the record, the judge may tell the jury to disregard it, but you can't unthink or unhear something that's been said. The bell has already been rung.
I don't (or can't, I'm unsure) believe that lawyers of this caliber make mistakes like this. So what was her play by doing this? Did it pay off?
I suspect (but do not know) that this is information that Google doesn't want out there. It costs them an information edge in negotiations that may cost them hundreds of millions of dollars (again, my guess). So it may be very painful for Google to have this information out.
Oracle may have done this deliberately just to make the lawsuit more painful to Google. The unspoken message is "Don't you want this to just go away? You could settle with us. If you don't, we can continue to make it hurt."
> The unspoken message is "Don't you want this to just go away? You could settle with us. If you don't, we can continue to make it hurt."
To continue down this Machiavellian rabbit-hole; this then is Google saying to all lawyers who might agree to cooperate with Oracle in similarly murky shenanigans in the future "We will come after you"
Reminds me of Australian Federal Parliament. The previous Prime Minister obstructed the government of the day when he was an opposition leader by stopping "pairs" - where if one member of parliament could not be present the opposition agrees to have a member abstain from voting.
He did that in a hung parliament, now they are in government the Labor party are doing the same hardball tactics. It's making the government's life hell.
Off-topic, but I find it strange that money in the order of $1B can change hands between two mega-corporations without anyone outside having an inkling, while I could find websites saying exactly how much a low-level government worker earns in a social services center in my county. (Spoiler: much less than I used to earn as developer.)
Shouldn't the structure of accountability be in the other direction?
Could you explain more about why you think so? I think the ordering is pretty much what I want, even if I'm not necessarily happy with the absolute numbers.
1. Government workers are your fellow citizens, and they have a right to privacy as everyone else. I don't think "how much a specific low-level government worker earns" is anybody else's business. If you are worried about government spending, you should be able to check aggregate statistics.
2. If companies can spend/earn $1B without anyone knowing, how are we going to tax them properly? If only the government knows and no one else, then we're basically asked to trust the government and corporations to be honest. When they are't, they cause much more financial harm to me (because my tax has to make up for it) than some county office giving everyone a higher raise than necessary.
I don't see how tax is a valid point. 99% of individuals and corporations do not have their spendings - that's not only the net flow, but also the breakdown of revenue and costs - revealed to the public. To imply that they might be dishonest, and that dishonesty will not be caught by the government, would mean that everybody has to release their spendings to the public. Mark Zuckerberg could be cheating on his taxes. You could be cheating on your taxes. Surely you don't want to cause financial harm to the rest of us?
And if that proposition rankles, we all pay Googlers' wages via "voluntarily"[0] using Google services and all that entails (ads, behaviour profiles, etc).
[0] I say voluntarily here, because of course it is voluntary; put down the phone or whatever. Yet, it's difficult to imagine the average HN user successfully opting-out of making Google money by using the internet (if only because the average HN user wouldn't actually care about most vectors for it). It's basically impossible for the average user to do this.
The reason it's so hard to avoid making Google money while you use the Internet isn't because of nefarious schemes, it's because Google kicks ass at what it does -- providing free services that are so good that most people use them, and matching eyeballs to ads using harvested info of said "most people". Regardless, when you're this big, you start to accrue responsibility (to, say, not be evil). Not that the capstone to this ranty footnote is "Google should be as transparent as government salaries", merely that that idea isn't actually too crazy when you consider the power Google wields over society via the Internet. Of course, the inconvenient reality of Google's position as a publicly traded company casts a huge shadow over any highfalutin prospect of serious responsibility to society, but a man can dream of a more reasonable system.
It's not somehow patriotic to pay more in taxes than one is legally obligated to pay.
The key word here is "obligated".
Google doesn't evade taxes - they pay what tax law obligates them to pay.
They just happen to have a team of accountants available to ensure they pay the correct amount (read as: the amount the US Government has decided, through tax laws, that a corporation like Google should pay).
pa·tri·ot·ic
having or expressing devotion to and vigorous support for one's country.
It seems to me like paying more than ones legal minimum in taxes is indeed vigorously supporting the country.
Consider that war bonds were often marketed with a patriotic message, and paying taxes above what is required is like accepting a war bond that immediately defaults, which seems a lot better for the country than one that it has to pay back.
Public doesn't mean unlimited access. They aggregate information in their reports because knowing specific transactions means competitors would know far too much about those transactions.
The judge tried to reveal the depth of this revelation by comparing it to that of the most secret thing he could imagine:
> If she had had the recipe for Coca-Cola she could have blurted it out in this court right now.
(Seriously!)
EDIT: I wasn't trying to be snarky or silly, just pointing out an aspect of the story that struck me as funny. Serious request: if that is inappropriate, please let me know rather than just silently downvoting. In that case, I apologise and will delete the post.
What's wrong with that analogy? Coca Cola's exact formula is proprietary information, so saying it in court could cause damages (e.g. other manufacturers could make a perfect clone and undercut Coca Cola).
There's even an article on Coca Cola's supposed secret formula[0] which further validates the analogy by making it an archetype for proprietary information.
Nothing's wrong with it as an analogy; I would have found "this is like blurting out Coca-Cola's secret formula!" extremely apt, not least for the reason that you mention. However, the judge's wording
> If she had had the recipe for Coca-Cola she could have blurted it out in this court right now.
seemed less like a comparison than a description of the dire consequences of this sort of behaviour, and it struck me as funny: surely anyone who's unconvinced of the seriousness of blurting out one business's proprierary information won't be convinced about the seriousness of blurting out another's?
Coca-Cola's formula is literally a textbook example of a trade secret. Everybody remotely familiar with IP law knows how important secrecy is for Coke. Many fewer people are familiar with how important it is for Google. The comparison shows that the same rule protects both, and that it should not be carelessly breached.
I took it as him stressing the fact that though these numbers weren't likely to completely destroy Google's business models, if this was truly a "heat of the argument" thing (i.e. not calculated) that suggests she'd be likely to do the same with even more sensitive information that might.
I'm with you 100%. When I see an animated gif, it likens the article to clickbait or those 'my reaction when' pages. I'm here to read news, not watch funny images that appeal to to the lowest common denominator.
Absolutely right. Bikers have flashing lights on at night because it's one of the strongest attention-grabbing effects on humans, in addition to motion. This animated GIF has elements of both.
If you were an author, you wouldn't include an automatic strobe light strip on each page of your book would you? Again, a lack of empathy for the reader is the problem here.
Slightly off topic, but I've always had a hard wrapping my head around the stance the somehow an API is distinct from code. I understand that it's an abstraction in programming, and that industry practice has been that it's acceptable to take an existing API that you didn't create and write a new implementation.
But since the API is "implemented" in code, it seems like for the purpose of copyright consideration that the distinction is simply one of custom.
It's a programming abstraction, to create your own "implementation" of the API you still have to use code that is identical to original.
Alsop's original, overturned, ruling was that as a matter of law API's couldn't be copyrighted because they express an idea that can only be expressed exactly that way, and traditionally this would not be allowed (can't copyright an idea). As I understood it, his concept implied that to get IP protection over an API would require something more like patent protection. (I might be totally wrong on this).
> It's a programming abstraction, to create your own "implementation" of the API you still have to use code that is identical to original.
Not if you think of it like this really rough analogy: if the software product is a closed box, the API is the different configuration of holes cut in the box, and the code is whatever is inside the box. So you can imagine that boxes, despite being cut with identical holes, could hold different things within.
Going a bit deeper would be to consider that software with identical API, and different implementations may have different run-time characteristics between them. That is, the same API call in one implementation may take twice as long to execute than in another implementation. Further, depending on how explicit/rigid the API spec is, a call in one implementation could have some "out-of-band" behavior (e.g. affect another software system unbeknownst to the calling routine; or every API call may be logged in one implementation, but not logged in another).
Regardless of the outcome her career in litigating high profile cases is pretty much over. You simply do not utter highly confidential company information accidentally. It was intentional and it was done to paint a picture to the jury about how much money Google was making from Android and what it was paying Apple.
In future discoveries involving her firm, this event will be raised by the opposing parties - hell, Judge Aslup said he hopes that happens. I'm sure others will outright refuse to divulge confidential information to her firm and get away with it too. It probably won't end her career, but it will cost her and her firm a lot of business.
Yeah, I'm sure the client was happy to have the world learn about how much Android actually makes for Google and what Google paid Apple. Unfortunately, it came at the cost of her ever litigating a high profile case again. People who "accidentally" leak confidential corporate information about their competitor usually don't get a second chance. She's a seasoned IP lawyer so this wasn't accidental. It was premeditated and what's worse is that she's still refusing to accept responsibility for it. This is reckless behavior and someone you don't want litigating your case.
God I hate that woman. When she was a US Attorney for SF, she went around and threatened to seize buildings where medical cannabis dispensaries were located, in full compliance of the local laws. Because she couldn't do any thing to the dispensary directly, she threatened their landlords. This was after Obama had said that DoJ would not interfere with dispensaries which were operating within the state laws.
She was the boss in the Northern District of California. US Attorneys are like District Attorneys except they work for the federal, not state, government. The only people with any authority over these attorneys (there are only 93, one for each district except Guam) are the POTUS and Attorney General.
As someone who knows zilch about business, I don't quite understand why people knowing these numbers is so devastating. What will another company do with these two numbers that it otherwise wouldn't do?
Now everyone knows just how valuable Android is for Google so they can hold them over a barrel for more money, such as when Google is negotiating a patent licensing agreement for some critical patent in the Android ecosystem. If no one knows what the number is, you can at least play it down and get a better deal. Now there's no chance.
How can a public corporation keep those two numbers secret? Those are basic cost and revenue numbers that should be disclosed in their annual financial statements. The fact that it's legal to keep those numbers secret means there's something very wrong with how we do financial disclosure in America.
If anything, my only sadness is that more of Google's dirty laundry wasn't aired. This illusion that Google search is winning because people prefer it and that Google doesn't make money on Android are both claims I'm happy to see debunked. Google's anti-monopoly claims fundamentally hinge on concepts like these.
And if a lawyer did break the law by doing it, I say she belongs on the same high pedestal people put Snowden on.
There's a big difference between revealing the details of illegal actions, which Snowden did, and revealing your opponent's private financial dealings which are not illegal.
Would you also support this if someone posted the routing information at the bottom of your personal checks? I mean, it's an "open secret" that's on every check. So no harm can come from the world at large knowing it.... right?
Google's actions are illegal though. It's not a government coverup, but Google is using misinformation as 'proof' they aren't guilty.
It's also noteworthy that this court case first revealed to the public the Android MADA agreement, a secret contract which has been at the center of a large number of antitrust suits around the globe. Had it not been revealed, it's unlikely many government entities would've started to look into it.
Have anything besides anecdotal evidence of that? Paying a company to use your search isn't anti-competitive. Google has competitors that can make the same (or better) offers. Google didn't prevent that behavior (in the way Microsoft did with Windows) because they can't... there are already alternatives.
Google is a monopoly, but it's not anti-competitive without actual evidence. And your personal opinion doesn't qualify.
How about the FTC's? Google had a paid shill in as the FTC Commissioner at the time (Joshua Wright), so the case was buried, but FTC staff investigated and recommended they go forward with a formal action. The EU is of course, already moving forward, as is a few other countries, who don't have Google employees working in their respective governments.
Oracle is able to disclose this to the court, just not to the world at large. So if what you say is true, the court (including appeals) is the proper place to raise that argument.
> This illusion that Google search is winning because people prefer it
People preferring it and Apple or Mozilla asking Google to pay them to include the search bar are not exclusive.
If consumers prefer Google, and Apple couldn't make enough money with their own search engine to compensate for the lost users, it would make sense for Apple to pay Google for the right to use their search bar. Sure, Google could theoretically make money by giving it to them for free, or even by paying them to include it (see Mozilla), but why not get paid twice?
> and that Google doesn't make money on Android
I don't think anyone seriously believes that Android doesn't make money. Why else would Google put so much money into it in the first place?
> I don't think anyone seriously believes that Android doesn't make money. Why else would Google put so much money into it in the first place?
There is a difference between making money from something and making money as a result of it.
Imagine Android was made by Mozilla. Then Oracle would have to be litigating against Mozilla and Mozilla's profits would be zero dollars because Android is free.
Meanwhile Google would still be making billions of dollars "from" Android in the same way they make billions of dollars "from" iOS.
Android is better for them because Apple controls iOS and can use that control to extract concessions or money from Google. So you would be entirely unsurprised if you learned that Google had cut Mozilla a big donation check. But that doesn't mean Google should owe Oracle money -- if there was no Android then more of Google's customers would have iOS (or something else) instead, and possibly more of Google's revenue would be going go Apple, but still none of it would have gone to Oracle.
I imagine Oracle's argument isn't "if there was no Android", rather "Google is so economically interested in Android existing, that they would have paid us a license for the API copyright".
> I imagine Oracle's argument isn't "if there was no Android", rather "Google is so economically interested in Android existing, that they would have paid us a license for the API copyright".
More likely they would have just not used the API, as Apple has done this whole time.
Hmm. Suppose I want to buy a bike. Joe steals a bike and sells it to me for cheap. I did nothing wrong, but could be forced to return the bike. But if I resell the bike, I am no longer liable?
If you resell stolen property, the police will take it from whoever ends up in possession of it and then everyone who bought it will each in turn end up looking to their seller for a refund. But that analogy doesn't fit at all.
It's more like what happens if someone steals a bike and while riding around on it sees a billboard which leads to profit for the advertiser. Are you saying the advertiser now owes the bike owner something?
It's well understood, I think, that the biggest determiner of what search engine people use is the default one put in front of them. That's why Google's willing to spend a billion dollars to be that default. Google's claims to it's antimonopoly position often hinges on the claim that it's a 'natural' monopoly, created simply by the fact that they have the best product. It's unsurprising, then, that they're so angry that this lawyer revealed Google pays so much to ensure their dominance.
Google has long held that Android is something like a charity project, to "ensure an open future for mobile" or something like that. You can still see signs of it in the terms of the "Open Handset Alliance", which is actually the group of manufacturers Google forbids from using open source Android, ironically. It's also commonly the defense for why Google isn't a monopoly here: It "gives Android away for free". In reality, Google collects billions in profit, and leaves all of the software patching and support burdens on manufacturers, who can barely turn a profit and are held to Google's increasingly controlling mandates over how Android must be distributed. (I'm sure many OEMs after this case are curious why they're getting such a raw deal on Android, which is another reason it's unsurprising Google is so angry at Oracle.)
So many lies. Google does not "forbid" their OEM partners from using open source Android. What they forbid is that a member of the OHA cannot create a fork of Android that breaks the CTS. If you want to do so then you're free to leave the OHA and create your own version.
As for your search engine theory, well, that's also incorrect. The default search engine on Windows is bing - in fact it's baked into the OS and cannot even be turned off. The default search engine on their browser is also bing. So it would seem people are going out of their way to either download Chrome and use Google as their default search engine or modify the default search engine in Windows to use Google.
It's also worth noting that a pure, pro-bono open source project would still likely be interested in such a provision to help ward off an embrace-extend-extinguish scenario by controlling access to the trademark.
Whose fault is it that manufacturers cant turn a profit?
Is Google suppose to give a handout to them when it gives them the source code to Android?
Google provides the patch for the software. It is up the manufacturers to get it to their phones.
Google is being the responsible one here if you ask me. Its the manufacture not providing support for their product who is at fault here.
Which is why they started down the path around 5.0 to separate as much in application space from the lower kernel space as they can... the browser is now a separate chrome (preinstalled) instead of built in, etc... so that they can actually update the apps without device maker approval.
It's interesting that that's so well understood, when Windows (which had the majority of the consumer internet-connected device market share even if you include smartphones for most of Google's history) never defaulted to Google search.
But the significance of this breach is not the only thing that caught my eye.
These litigants have been entrenched in scorched-earth litigation for years now in which the working M.O. for both sides is to concede nothing and make everything the subject of endless dispute. Big firm litigators will often do this. It is a great way to rack up bills. Clients in these contexts do not oppose it and very often demand it. And so a lot of wasteful lawyering happens just because everyone understands that this is an all-out war.
To me, then, it seems that the big problem here (in addition to the improper disclosures of highly important confidential information in a public court hearing) was the resistance by the lawyers who did this to simply acknowledging that a big problem existed that required them to stipulate to getting the transcript sealed immediately. Had they done so, it seems the information would never have made the headlines. Instead (and I am sure because it had become the pattern in the case), they could not reach this simple agreement with the other lawyers to deal with the problem but had to find grounds to resist and fight over it.
I know that we as outside observers have limited information upon which to make an assessment here and so the only thing we can truly say from our perspective is "who knows". Yet, if the surface facts reflect the reality, then it is scarcely believable that the lawyers could have so lost perspective as to take this issue to the mat, resulting in such damage to a party. Assuming the facts are as they appear on the surface, this would be very serious misconduct and I can see why Judge Alsup is really mad that it happened.