Google’s copyright infringment and how it affects more than just Android

This Friday the mobile world was less than surprised by the seemingly indisputable proof that Google did, in fact, copy source code from Oracle’s Java and redistribute it under the open-source Android license. What followed was a back and forth between bloggers about the veracity of the claims, with some Google defenders pointing out that the files and code in question are likely test files that don’t actually ship with Android handsets.  As Nilay Patel from Engadget points out, however, it doesn’t matter whether or not the code actually ships in Android handsets.  Google has likely committed the offense simply by repackaging the code and sending it along to Android licensees.

Everyone is concerned about what this means for Android.  Will this mean that Oracle can extract licensing fees for every handset that ships with Android?  Will this disrupt the march to market dominance that everyone has predicted for Android?  While licensing fees on Android would make a huge difference going forward, it’s likely that Google will figure out a way to clean this mess up before it disrupts their business model.  What’s more interesting is the fact that Google appears to have been very sloppy when it comes to legal issues.  This might end up hurting them a little bit, but should be considered more of a cautionary tale for Google’s partners on multiple fronts.

Previous legal issues involving Android

This might come as a surprise, but Oracle’s lawsuit against Google is not the first of its kind.  Last year, Microsoft notoriously began making noise about how the user interface and underlying technology was in violation of its patents, a continuation of their crusade to claim rights over what they perceived as Linux violations.  These threats were lobbied not at Google, but at actual device manufacturers.  Without yet going to court, however, Microsoft announced that it had “negotiated” deals with many of the handset makers.  The reason behind this curtailed aggression, of course, is that many of these device makers are Microsoft’s actual partners.  A number of industry observers took Microsoft’s statement to mean that they worked out further deal with Windows Phone 7.  In essence, the liabilities of Linux have enabled to Microsoft to either receive licensing fees from Android manufacturers or to push its platform onto partners’ handsets.  It’s a win for Microsoft all the way around, but a loss f freedom from device makers.

Google’s unsupported support for WebM

At Google I/O last May, one of the biggest announcements was the news that Google was making use of its purchase of On2 Technologies by open sourcing the VP8 video codec under the name WebM. Google’s intention in doing so was to push forward native browser support for video via HTML5.  While Apple’s Safari and Google’s own Chrome browsers already supported HTML5 (with Microsoft promising support soon), the issue was whether or not free and open source browsers Mozilla and Opera would climb aboard. The issue at the heart of the matter is the codec used.  The ubiquitous and industry-standard H.264 codec is an open standard, but is not entirely free, requiring licensing for browser support.  That licensing is capped at a maximum of four million dollars, however, making it expensive but not at all impossible for Firefox and Opera to support the codec.  Google’s view was that they could release WebM as a free standard for Firefox and Opera and hope that it gains the support needed for content providers on the web to recognize it.

The issue isn’t that simple, of course.  H.264 has become the de facto standard for video, right down to cameras that encode in H.264 and hardware acceleration in mobile devices that enable H.264 playback. The reason that the iPad plays video so efficiently is that it doesn’t waste resources on Flash but is literally built to play H.264.  In fact, chipsets in almost all major mobile handsets have support for H.264, something that requires engineering, testing, and space on the die.  For hardware companies to support WebM playback, they will have to tear up existing designs and technology roadmaps in order to fit WebM accelerators on their chipsets.

And for what?  Possibly to encounter patent litigation.  From it’s inception, the VP8/WebM line of codecs has been dogged by criticism that it may infringe upon a number of patents wrapped into H.264.  The reason Apple has never supported it is that they fear that once they do, one of the media companies under the MPEG LA (the firm that manages the patent pool that controls H.264) will sue them for huge royalties that disrupt their profits and their own hardware plans.  WebM is already drawing attention from the MPEG LA and will likely face legal challenges soon.  For hardware companies, it’s more difficult to weigh the risks of patent infringement because the remedy is far more complicated than paying some fees and flipping a switch to turn off support for an infringing codec.

Google’s unconvincing show of altruism

While some might have viewed Google’s support of WebM as a show of strength, essentially taking the risk of delivering WebM, the truth of the matter is that there is no way for Google to indemnify its partners or would-be licensees.  Just because Google puts itself at risk with WebM doesn’t mean that it faces the same risk as its partners.  For starters, Google is a software company.  If they are found liable for patent violations, they simply pay out licensing fees and/or penalties and change their software approach.  This is an unacceptable risk to hardware OEMs, however, because they build and ship hardware, operating on far slimmer profit margins than Google.  Even a small disruption can have far-reaching implications for a hardware company’s bottom line.  Secondly, the need to have hardware support for video codecs increases the risks to manufacturers.  Patent violation fees are one thing, but having to reconfigure your hardware roadmap is an expensive and disruptive proposition that is far too risky for any large company to consider.

So how does all of this relate to Android?  Well, if this week’s revelations are any indication, Google may not be as scrupulous as some might hope when it comes to evaluating potential legal violations.  If you’re HTC, Motorola, or Samsung, you’re now facing potential licensing fees to Oracle for the Android copyright infringement.  You’re also at a crossroads in deciding whether you should devote resources to developing hardware decoders for WebM.  Given the apparent sloppiness by Google as it pertains to Android and Java, are device makers really going to believe Google’s promise of WebM as a “free” video codec? Expect them to be far more conservative, leading to a convoluted situation for video on the web and on devices, a far cry from where the web would have been before Google opened WebM to the masses.