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A major row has blown up with allegations that the Android source code incorporates between 37 and 44 Java source files. Java was originally developed by Sun which is now owned by Oracle.
The issue blew up in the USA after an article was published online. Oracle who owns the Java code is currently suing Google for patent and copyright infringement related to Java.
As soon as the issue was raised the web was awash with claims and counter claims. Ars Technica claimed that the files in question are test files and aren’t important and most probably don’t ship with Android.
Engadget then came out and said that from from a technical perspective, these objections are completely valid. The files in question do appear to be test files, some of them were removed, and there’s simply no way of knowing if any of them ended up in a shipping Android handset.
They went to claim that from a legal perspective, it seems very likely that these files create increased copyright liability for Google, because the state of our current copyright law (US) doesn’t make exceptions for how source code trees work, or whether or not a script pasted in a different license, or whether these files made it into handsets.
The single most relevant legal question is whether or not copying and distributing these files was authorized by Oracle, and the answer clearly appears to be “nope” — even if Oracle licensed the code under the GPL. Why? Because somewhere along the line, Google took Oracle’s code, replaced the GPL language with the incompatible Apache Open Source License, and distributed the code under that license publicly.
That’s all it takes — if Google violated the GPL by changing the license, it also infringed Oracle’s underlying copyright. It doesn’t matter if a Google employee, a script, a robot, or Eric Schmidt’s cat made the change — once you’ve created or distributed an unauthorized copy, you’re liable for infringement.*
According to several sources Oracle is prepared to have a major fight with Google with several observers claiming that whether or not these files are a “smoking gun” isn’t the issue — it’s whether Android infringes Oracle’s patents and copyrights, since the consequences either way will be monumental and far-reaching. Ultimately, though, the only person who can resolve all of this for certain is a judge — and it’s going to take a lot more time and research to get there.
