Google hypocrisy on property rights: It is fine for it to "fork" others programing, but not for others to do it to Google

No one really denies that Google forked the Sun's Java when it designed the Android operating system.  What concerned Oracle, which had bought Java from Sun, was that Android use of Java was incompatible with Java.  Google's successful legal defense largely rested on Tim Bray who had designed Java and Google had hired Bray to work for them a couple of years ago.  Here is a statement from Bray:

But I think there’ll be lots of forks, and I approve. I suspect that basement hackers and university CompSci departments and other unexpected parties will take the Java source, hack groovy improvements into it, compile it, and want to give it to the world. They’ll discover that getting their creation blessed as “Java” requires running the TCK/trademark gauntlet, which isn’t groovy at all. So they’ll think of a clever name for it and publish anyhow.

Which is terrific. I see no downside, and I see huge upside in that the Java mainstream can watch this kind of stuff and (because of the GPL) adopt it if it’s good, and make things better for everybody.

So Google's argument was that when it was doing the forking, it was fine, even good.  Obviously, both Sun and Oracle didn't see it the same way and were worried that the incompatibilities would hurt programing for their version of Java.

Well, what a difference a few months makes.  Now Google is forcing Acer to drop the release of a new operating system to compete with Android that involves forking of Android.  Google of course is now making the same argument against Acer that Oracle made against Google.

In a blog post today, Rubin called out Alibaba's Aliyun platform as a forked version of Android that's modified to the extent that it's incompatible with other Android devices. As a member of the Open Handset Alliance, Acer is forbidden from using such an operating system, he said.
"Compatibility is at the heart of the Android ecosystem and ensures a consistent experience for developers, manufacturers, and consumers," the company said in an e-mailed statement. "Non-compatible version of Android, like Aliyun, weaken the ecosystem." . . .

The irony of this is not lost on Alibaba:

"Aliyun OS is not part of the Android ecosystem so of course Aliyun OS is not and does not have to be compatible with Android," said John Spelich, vice president of international corporate affairs for Alibaba. "It is ironic that a company that talks freely about openness is espousing a closed ecosystem." . . .

Google said that while it built its own operating system, Alibaba took elements of Android to build Aliyun. . . .

So didn't Google take parts of Java in building its own operating system?  Could someone please tell me what I am missing here?  Thank you.

UPDATE: The two examples are becoming even more closely linked.  Alibaba claims that its new Aliyun operating system is not a "forked" version of Android, just as Google claimed that Android had not "forked" Java.  Google obviously had to eventually concede that it had forked Java, but their defense was that it was great to have a lot of innovation.  Will it become clear that not only is Google making the same argument that it railed against before but that Alibaba hasn't forked anything?  From CNET:

Chinese search giant Alibaba is disputing Google's claim that Alibaba's new Aliyun operating system is a forked and incompatible version of Android and thus can't be used by phone maker Acer.

In a blog post yesterday, Google's Andy Rubin said "the Aliyun OS incorporates the Android runtime and was apparently derived from Android."

CNET asked Alibaba's John Spelich about Rubin's/Google's claims and about whether there are elements of Android in Aliyun, and here's what we got in response: "They have no idea and are just speculating. Aliyun is different." . . .

But Spelich told CNET in an e-mail that Aliyun is "not a fork. Ours is built on open-source Linux." And he added that Aliyun "has our own applications. [It's] designed to run cloud apps designed in our own ecosystem. [It] can run some but not all Android apps."

Apple v. Samsung: Samsung destroys evidence and internal documents show it deliberately copied Apple

Samsung was previously punished for the exact same type of evidence destruction eight years ago. As shown in the next story, despite that destruction, it is amazing how much evidence was still available.

U.S. Magistrate Judge Paul Grewal in San Jose, California, today agreed with Apple that jurors should be told that they can draw an “adverse inference” from Samsung’s failure to avoid auto-deleting e-mail Apple later sought as evidence. The jury instruction is a “modest” method of correcting for any harm suffered by Apple and deterring Samsung’s practices in the future, Grewal wrote.
“In effect, Samsung kept the shredder on long after it should have known about this litigation,” Grewal wrote. The judge said the “rolling basis” Samsung used for deletions resulted in a similar ruling against the company in case filed in 2004. . . .

 Now it becomes clear that even Google warned Samsung not to copy Apple.

. . . “Samsung’s documents show the similarity of Samsung’s products is no accident or, as Samsung would have it, a ‘natural evolution,’” Apple argues in its brief. “Rather, it results from Samsung’s deliberate plan to free-ride on the iPhone’s and iPad’s extraordinary success by copying their iconic designs and intuitive user interface. Apple will rely on Samsung’s own documents, which tell an unambiguous story.”Among those documents are a few purported to show that Samsung not only deliberately copied certain characteristics of the iPhone and iPad, but was also explicitily warned away from doing so by various third parties, including Google. . . .

• In February 2010, Google told Samsung that Samsung’s “P1” and “P3” tablets (Galaxy Tab and Galaxy Tab 10.1) were “too similar” to the iPad and demanded “distinguishable design vis-à-vis the iPad for the P3.”

• In 2011, Samsung’s own Product Design Group noted that it is “regrettable” that the Galaxy S “looks similar” to older iPhone models.

• As part of a formal, Samsung-sponsored evaluation, famous designers warned Samsung that the Galaxy S “looked like it copied the iPhone too much,” and that “innovation is needed.” The designers explained that the appearance of the Galaxy S “[c]losely resembles the iPhone shape so as to have no distinguishable elements,” and “[a]ll you have to do is cover up the Samsung logo and it’s difficult to find anything different from the iPhone.” . . .

Meanwhile, it is funny that while this is occurring Google is claiming that some inventions are just too important to protect the intellectual property rights for.

In other words, Google’s view is that just as there are patents that are standards essential, there are also patents that are commercially essential — patents that cover features that are so popular as to have become ubiquitous. The latter are just as ripe for abuse as the former, and withholding them is just as harmful to consumers and the competitive marketplace. Viewed through that lens, multitouch technology or slide-to-unlock might be treated the same way as an industry standard patent on, say, a smartphone radio.
This argument, of course, has massive implications for Apple, which has developed a treasure trove of what might be considered by some as commercially essential IP around the iPhone and iPad. And the company was quick to take severe exception to it. In a letter to the Senate Judiciary Committee on Wednesday, Apple General Counsel Bruce Sewell rebutted Walker’s argument. “That a proprietary technology becomes quite popular does not transform it into a ‘standard’ subject to the same legal constraints as true standards,” he wrote. . . .

Richard Posner: “It’s not clear that we really need patents in most industries"

Knowing that Dick Posner doesn't believe in patents for most industries goes a long way to explaining his behavior in the case that he heard between Apple and Motorola.  Reuters did an interview with Posner:

Posner said some industries, like pharmaceuticals, had a better claim to intellectual property protection because of the enormous investment it takes to create a successful drug. . . .

Well, it is hard to see how one differentiates the theory of patents based on the size of the investment.  Whether it is five small investments or one large one the issue of encouraging investment and letting recoup their investments seems the same.  In any case, how much did Apple spend developing the iPhone?  It is hard to believe that your average drug involved a larger investment than the iPhone.  


Apple apparently began developing the ideas behind the iPhone when they original started working on the iPad.  It was: "A revolutionary UI, the result of years of development -- the result of years of development."   The interface development started in the "early 2000s."


If Posner doesn't want to let Apple patent the different component features, can he let them patent the phone itself?  Obviously not.  You have to patent the features.  The question Posner has to ask is whether we want more of these interface developments to occur. 

Supreme Court unanimously rules against the EPA in Sackett v. EPA

It is pretty amazing that the Supreme Court got an unanimous decision in any property rights case, though what the court's decision does is quite limited. The decision also has some pretty strong language (see bold below).

The reach of the Clean Water Act is notoriously unclear. Any piece of land that is wet at least part of the year is in danger of being classified by EPA employees as wetlands covered by the Act, and according to the Federal Government, if property owners begin to construct a home on a lot that the agency thinks possesses the requisite wetness, the property owners are at the agency’s mercy. The EPA may issue a compliance order demanding that the owners cease construction, engage in expensive remedial measures, and abandon any use of the property. If the owners do not do the EPA’s bidding, they may be fined up to $75,000 per day ($37,500 for violating the Act and another $37,500 for violating the compliance order). And if the owners want their day in court to show that their lot does not include covered wetlands, well, as a practical matter, that is just too bad. Until the EPA sues them, they are blocked from access to the courts, and the EPA may wait as long as it wants before deciding to sue. By that time, the potential fines may easily have reached the millions. In a nation that values due process, not to mention private property, such treatment is unthinkable.
The Court’s decision provides a modest measure of relief. At least, property owners like petitioners will have the right to challenge the EPA’s jurisdictional determination under the Administrative Procedure Act. But the combination of the uncertain reach of the Clean Water Act and the draconian penalties imposed for the sort of violations alleged in this case still leaves most property owners with little practical alternative but to dance to the EPA’s tune.
Real relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act. . . .

Obama moves on patent reform to help out Google

Obama is trying to change the patent rules so as to help out his friends over at Google. Here is a useful piece from the WSJ:

Google has come from nowhere to build a dominant position in smartphone software based on tying a free Android to Google search advertising (which is fine) and, arguably, by helping itself to seminal Apple innovations that created today's smartphone industry (not so fine).

Google's approach implicitly assumes that nobody has a right to exclude Google from use of their intellectual property. At best, after litigation, they might have a right to be compensated by Google.

But this is not how the patent system is supposed to work. Let us understand that Google's purchase of Motorola is the purchase of a bargaining asset; it does not automatically put Google in the right. Apple, as a patent holder, has every right to seek to preserve exclusive use of its inventions. In its eBay decision, the Supreme Court allowed that the possibility of "irreparable harm" might justify banning an infringing product outright, equivalent to an ITC import exclusion.

Those given to hyperbole might wonder what could be a clearer example of "irreparable harm" than Google stealing an industry. . . .

Google's continued battle to destroy property rights

Google wants to argue that patents are anticompetitive, but this is an extremely shortsighted view as a lot of products would never have been developed to begin with without patent protection. This list could obviously be added to. For example, does any believe that it is a coincidence that the Google Android system was already being worked on when Schmidt was serving on Apple's board of directors? Anyway, here is a short list from Forbes:

First, arguably no other Fortune 500 company has ever been more hostile to others’ property rights than Google.
-- To go public in 2004, Google had to settle an Overture patent infringement claim for $250 million over the core invention underlying Google’s Adwords auction process.
-- In 2005, Google began scanning copyrighted books without the permission of the rights holders; the number of infringed works now numbers 15 million books and counting. After being sued around the world by authors and publishers, Google settled for $125 million, but that settlement has been opposed for the last two years as anti-competitive by the Register of Copyrights, the Department of Justice and a Federal Court.
-- In 2007, Viacom filed a billion-dollar copyright infringement suit against Google’s YouTube for illegally downloading over 100,000 copyrighted videos. The lower court decision noted Google knew it willfully infringed copyrighted videos.
-- In 2010, Oracle sued Google for billions of dollars because it “knowingly, directly and repeatedly infringed Oracle’s Java-related property.” The presiding Federal judge in the case has agreed to include an incriminating Google email that shows Android officials in Google did know they needed to license the Java patents in dispute.
-- Also in 2010, Skyhook Wireless sued Google for infringing several of its WiFi location engine patents that collectively enable most location-driven mobile applications. Google’s competitors have respected and licensed Skyhook’s patents.

Meanwhile Google is ramping up its donations to liberal groups. Some details are available here.

Google and Music Piracy

Google's lack of support for property rights may impact its ability to get contracts to sell music. The music labels are worried that when people use Google to search for music they will be directed to pirate sites. Google is offering to charge the music labels for helping them stop these pirate sites. This has generally been Google's attitude for books also.

Here is the problem. In any other case, if a television or radio station took on ads to help sell stolen material, I would think that they would face a lot of trouble. Google benefits from carrying these pirate sites because those sites appeal to people to who want pirated music.

Last month, executives from two music-industry trade groups, the Recording Industry Association of America (RIAA) and the International Federation of the Phonographic Industry (IFPI), asked Google if it could provide a means to help them track down pirated material more efficiently. Typically, copyright owners are responsible for finding pirated links and alerting Google, which is required by law to quickly remove the links.
But Google's response raised eyebrows at some of the labels.
James Pond, a Google manager, wrote in a letter dated September 20, that Google would be happy to help--for a price, according to a source who had seen letter. . . .
A music industry source estimated that such charges could add up to several million dollars a year.
Google confirmed the authenticity of the letter. A representative said Google fully complies with copyright law and wanted to make it clear that the company does not charge to remove links to pirated material.
"As always, Google honors valid legal removal requests," the representative said in an e-mail to CNET. "We don't charge for removals and have no plans to. We have a great relationship with the music industry and have worked consistently with them to advance their interests through services like YouTube ContentID, our music search feature, and our developer tools."
According to one music industry insider, few in the music industry will find comfort knowing Google isn't charging them to take down pirated links but does charge them to search for the links.
Does Google bankroll piracy?
Google's often contentious relationship with the entertainment industry doesn't end with the music business. There's plenty of grumbling going on in Hollywood about ads from Google and other online services found at numerous pirate sites. . . . . .
"From my point of view, Google fences stolen goods," said Ellen Seidler, an independent filmmaker, who last month told CNET that piracy cost her money when her small-budget film, "And Then Came Lola," was distributed illegally online. "These [pirate] sites...want to drive traffic to their site and they do it by pirating films. They are paid for the ads on their site by Google and others. What we need to do is force Google to be more vigilant in preventing filmmakers from getting ripped off." . . .

More on Google not caring about property rights: Look at the name for its new phone

Google has a long history of ignoring others property rights (see here and here). Google's approach is simply to take others property and then make them have to fight to recover it. My own guess that Google will face a tough legal challenge to change the name of its phone.

When Google announced the launch of its new mobile phone, Nexus One, it wanted to make waves. It probably didn't expect to ruffle the likes of the literary set. Philip K. Dick's daughter, Isa Dick Hackett, says that the phone's name is swiped from one of her dad's most famous novels — and is a clear infringement.

Sound far-fetched? Let's examine the evidence. As reported by the Wall Street Journal, Dick's novel "Do Androids Dream of Electric Sheep?" became the sci-fi movie "Bladerunner." Name of the android-chasing hero: Nexus-6. Name of the Google operating system that runs Nexus One: Android. Coincidence? Dick's daughter thinks not. Google had no comment. . . .

"It’s Google’s autistic approach to relationships"

I guess that I thought that Google's decision to offer its own phone would wreck also sorts of problems with other phone makers that were using Android. Besides having no regards for other's property rights as has been noted previously, this piece discussions how Google relentless lobbies government to get special favors to help it compete against other companies.

Even before Google started competing with it head on this week, the mobile industry was already wary of the Mountain View Chocolate Factory, and its inclination to hoover up every morsel of service revenue. Now complaining about that may be a bit hypocritical, you might think, if you look at how much of a transaction operators such as Docomo have traditionally retained, and how much they want to keep now. But look at the alternative, Google told the networks and device makers. That Mr Jobs doesn’t leave anything on the table. And besides, we Do No Evil. . . .

Google has lobbied for this for years now; it's also why Google has its own private internet. Googlenet already carries 10 per cent of the net’s traffic internally, and this is a testbed for replacements for the open protocols we use today such as http and dns. And it sure as hell isn’t neutral. Google has no obligation to open this to anybody else. The huge data centres are simply the physical manifestation of the private internet – like the vast cooling towers at each end of the Holland or Rotherhithe Tunnels. . . .

French looking at taxing Google to fund french writers

I have no love lost for Google, but this sounds like using taxes to create an unequal playing field.

President Nicolas Sarkozy instructed his finance ministry to examine the merits of a tax in response to complaints from the French media that Google and other sites are generating advertising income using their news and other content. He also called for an inquiry by French competition authorities into a possible “abuse of dominant position” in the advertising business of big internet sites. . . .

However, Google has run roughshod over property rights.

Last month a Paris court ruled that Google had violated the copyright of authors and publishers by scanning French books held in US libraries without consent. The court ordered the group to stop scanning titles published by La Matinière, the company that brought the case, without prior authorisation, and instructed it to pay €300,000 in damages and interest. . . .

Science Magazine prints the Obvious: Property rights work to prevent overfishing problems

I agree with Hilborn that there is nothing surprising here, but at least Science magazine and the New York Times are finally beginning to catch on to something this obvious.

Giving people ownership rights in marine fisheries can halt or even reverse catastrophic declines in commercial stocks, researchers in California and Hawaii are reporting.

The idea goes against the grain among people who believe that anyone with grit and skill should be able to get in a boat, put to sea and make a living fishing. But that approach, even with licensing requirements and other restrictions, has produced fishing efforts so intense that by some estimates, the world’s commercial stocks will collapse in a few decades.

By contrast, the researchers write in Friday’s issue of the journal Science, allocating ownership shares of a particular fishery to individuals, cooperatives, communities or other entities gives them a reason to nurture the stock. In this arrangement, scientists set acceptable catch levels, and other authorities allocate shares, species by species, region by region. . . . .

Ray Hilborn, a fisheries expert at the University of Washington, praised the new work but said: “There is nothing surprising in it. A lot of us have been arguing that various forms of catch shares or dedicated access is essential.”

The cost of government regulation: this seems to large to believe

A new study by Theo Eicher at the University of Washington finds:

"Fully $200,000 of that [$226,000] increase [1989 and 2006] was the result of land-use regulations"!

Thanks to Sonya Jones for sending me this link.

Washington State Supreme Court Says People can Shoot Wild Animals in Self-Defense

Sonya Jones sent me this link from the Washington State Supreme Court. The court reaffirmed the notion that people are allowed to defend themselves and their property from wild animals.

[I]t may be justly said that one who kills an elk in defense of himself or his property, if such a killing was reasonably necessary for such purpose, is not guilty of violating the law.

The only sad thing is that such a common sense ruling requires someone to go to court and fight the issue all the way up to the state Supreme Court. In this case, the guy engaged in "repeated requests" for help from the state and still had to go through this long court battle. Sonya Jones posted her own discussion of the decision posted here.

New Op-ed in National Review Online on Defending Property Rights

Sonya Jones and I have an op-ed that follows up on our previous piece on the International Boundary Commission:

What can be done to stop a presidential appointee who views himself as above the rules? Can the president fire him? A Seattle court heard motions on such a case this week. What began as a seemingly trivial property-rights dispute has quickly become a constitutional quagmire. The judge is demanding answers on the limits of presidential power, on whether the government must compensate property owners for regulations restricting their property’s use, and on the power of international government agencies. . . . .

New Op-ed in Washington Times: Property-rights dispute

Retirees Shirley and Herbert Leu had a problem. Part of their backyard was collapsing into a ditch that ran along the U.S.-Canadian border. Before building their 4-foot-high retaining wall, the Leus made sure they were in compliance with all local regulations related to improvements made on private, residential property. It never dawned on the Leus that this would lead to an international incident and an ideological battle over private property. The debate became one of whether an international commission could simply come onto their property, remove their wall and then send them the bill. . . .

A comment tread can be found here.

Steve Jobs on Eliminating Digital Rights Management

The third alternative is to abolish DRMs entirely. Imagine a world where every online store sells DRM-free music encoded in open licensable formats. In such a world, any player can play music purchased from any store, and any store can sell music which is playable on all players. This is clearly the best alternative for consumers, and Apple would embrace it in a heartbeat. If the big four music companies would license Apple their music without the requirement that it be protected with a DRM, we would switch to selling only DRM-free music on our iTunes store. Every iPod ever made will play this DRM-free music.

Steve Jobs has a very provacative posting at Apple.com today asking for the elimination of digital rights management (DRM) that is used "to protect its music against theft." The most interesting part of the discussion to me was way Apple doesn't license its FairPlay DRM to others because it would be difficult for Apple to control information about the program and these leaks could be used to disable the protection. He suggests that is part of the reason that Microsoft has moved to the Apple model of having one company control both the hardware and software.

The other issue is ending DRM. Obviously Jobs would support this only if he believes that he has the best online music store and best hardware. Many economists have argued that Apple had locked customers into using iTunes once they had bought an iPod and that then the fact that they bought songs on iTunes would lock them into buying iPods in the future. The numbers that Jobs provides makes it clear that the investment the people make in songs bought by iTunes is so small that it is hard to think that there is much of a lock-in effect. He claims that the average iPod owner only has 3% of their songs from iTunes. The implication that he draws that this DRM hasn't stopped piracy. That last part seems like a big jump in logic to me, at least with the evidence that he has provided. These songs could be from people's legitimate CD collections. I also wonder about how much of this other space is due to podcasts, movies, audio books. It is because I have problems with this last step that I also have problems with his conclusion that the big four record companies would be better off junking DRM. Doing so could greatly increase piracy, which is what the record companies fear. I appears Jobs believes that he would benefit, but all that goes to show is that people aren't being locked into the iPod world. iPod and iTunes are both doing well because they are the best out there, not because people are locked into them.

There is one other possible interpretation to all this. It is possible that Jobs is reacting to recent pressure from multiple European countries to share its DRM. Apple might believe that it is easier for the music companies to defend this and at the same time Apple can make it look like it is in agreement with the Europeans. This interpretation depends on the reasonable assumption that the music companies are willing to fight hard to defend their property rights.

UPDATE: Well, others have picked up on this last point. "But several industry executives said they viewed Mr. Jobs’s comments as an effort to deflect blame from Apple and onto the record companies for the incompatibility of various digital music devices and services."