New Fronts in the Mobile Internet Wars
by Mark W. Hibben
Taking Sides and Abandoning Neutrality
Oracle’s suit against Google last week appears at first glance to be a straightforward intellectual property (IP) battle, which is all too common in Silicon Valley. The Valley eats, breaths and sleeps IP. Oracle alleges infringement by Google of certain Java patents Oracle acquired when it bought Sun. I would consider this merely a case of Oracle attempting to extract some added value from an otherwise questionable acquisition were it not for the fact that the alleged infringement involves the Java virtual machine (VM) in Google’s increasingly popular Android mobile operating system. While we may still debate the value of Adobe Flash for Web browsing, no one questions the value of Java, since it is literally ubiquitous on the Web. Android without Java would still work fine, but it wouldn’t be much use for mobile Internet access, thus the suit amounts to a flanking maneuver in the War for Mobile Internet Supremacy (WMIS).
Meanwhile, Google has mounted a flanking maneuver of its own in the recent position paper it issued with Verizon on Internet neutrality. The principle of net neutrality is that an Internet Service Provider will not seek to discriminate against certain Internet sites by providing greater bandwidth for some over others, or charging an additional fee to access certain sites. After extolling the virtues of net neutrality for wired broadband, Google and Verizon seek to grant themselves (and the rest of the industry) a complete exemption from the principle in the wireless sphere. Why the inconsistency? The abandonment of Net neutrality for wireless is an act of expediency designed to provide Google with an Android traceable revenue stream. In the WMIS, net neutrality has become expendable.
No Refuge in Open Source Java
As I have pointed out, Google derives no direct income from Android, since it doesn’t charge royalties for its open source software. I doubt it even knows precisely how many copies of Android are in use, by virtue of it being open source. Android’s open source status does not protect it from a patent infringement law suit, however, since in patent law, it doesn’t matter that an infringing invention was arrived at independently. Thus, even if the most rigid “clean room” methods (development by programmers with no prior knowledge) were used to develop Google’s open source version of the Java VM (called Dalvik), it’s still possible that the Google VM could infringe the Sun (and now Oracle) patent on Java VM. The Oracle suit goes beyond patent infringement, alleging that Sun-copyrighted materials related to Java had been distributed within Google. If true, this would pretty much blow out of the water any form of clean room defense, and it doesn’t help matters that Eric Schmidt, the Google CEO, was once Chief Technology Officer at Sun and led the Java development effort.
The remedies demanded by the Oracle suit are quite sweeping. In addition to an injunction against Google preventing future infringing conduct, the suit demands that all existing copies of Google’s version of Java be impounded or destroyed, and that punitive damages be awarded. Oracle’s attorneys will likely move for a temporary restraining order (TRO) against Google while the case is being heard (Oracle has demanded a jury trial). The scope of the TRO is not likely to include immediate confiscation or destruction of all the existing copies of Java within the deployed Android base, but will at least require that Google refrain from providing new versions of Android that include Java.
Since the suit is only directed at Google, the handset makers using Android such as HTC and Motorola presumably could continue to ship the existing version of Android with Google’s Java, at least until the suit is settled. The TRO motion probably will also seek to stop immediately any work within Google related to Java.
Oracle’s chances of being granted the TRO are actually pretty good, by virtue of, ironically, Android being open source. Since Google derives negligible income from Android, it can’t show a hardship if its ability to deliver future versions of Android is impaired, whereas Oracle can claim direct losses due to non-payment of patent royalties. In granting the TRO, the judge is required to consider which party will bear the greater burden of hardship in the near term. If the plaintiff (Oracle) bears the greater hardship, it need only demonstrate that its case is worthy of being litigated (but not necessarily won) in order for the TRO to be granted.
The granting of the TRO would probably mean that Google Android Version 2.2 wouldn’t ship, and this in turn may put the brakes on the rapid expansion of the Android operating system market share. According to Gartner, Inc., Android OS shipments surpassed iPhone OS shipments in the second quarter of 2010.
Putting the brakes on Android growth is probably the whole point of the suit. Google probably can’t afford to settle with Oracle and pay royalties on a product from which Google derives no direct revenue, but a TRO would inhibit Android market share expansion, which is probably the cornerstone of Google’s strategy to eventually make money from Android (see below). Steve Jobs cannot be unhappy at the chain of events that his pal Larry Ellison (founder and CEO of Oracle) has set in motion.
Google’s Net Un-neutrality
In my experience, I’ve found that when individuals or groups espouse glaringly inconsistent principles, it’s because of an underlying, often concealed motivation. I’m convinced that Google’s position on Net neutrality is just such a case. After piously extolling the virtues of Net neutrality, the Google/Verizon position on wireless Internet is really jarring:
“. . . wireless broadband is different from the traditional wireline world, in part because the mobile marketplace is more competitive and changing rapidly. In recognition of the still-nascent nature of the wireless broadband marketplace, under this proposal we would not now apply most of the wireline principles to wireless. . .”
Really? Why not? What is it about wireless Internet access that is so different in principle from wired Internet access? I’m not prepared at this juncture to definitively answer these questions, and I think the whole issue of Net neutrality is more properly a subject for a future Electro-politics article. Suffice it to say that I don’t agree with the exemption for wireless Internet.
I’m more interested in what is motivating the position by Verizon and Google. Since the announcement of Droid X, where Motorola, Verizon, Google, and Adobe were represented, it’s been apparent that they constitute an alliance of sorts in the WMIS. The joint position paper by Google and Verizon further cements the relationship and demonstrates their common interests.
Google wants to leverage Android in order to drive traffic to Google sites, so that Google can finally make money from Android. Verizon wants to oblige Google, since it needs Android, and the easiest way for Verizon to do this is by giving bandwidth preference to Google sites, thus the exemption for wireless. That this tramples on the principle of Net neutrality and could be seized upon to curtail Net neutrality for wired Internet access seems to give pause to neither Verizon nor Google.