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Comment by cosgroveb | Hacker News Reader

Very off-topic, I am sorry, but I just want to ask something to the smart folks here on HN.

In this post, PJ says: "And here's a detail that matters in any copyright infringement litigation: 17. Google does not receive any payment, fee, royalty, or other remuneration for its contributions to the Android Platform."

Also later a commenter, webster, says:

"The fact that Google does not get any fee for Android is a severe problem. It cuts potential damages immensely."

How does this square with the enormous damages that have been granted to the record labels during file sharing lawsuits? Surely file sharers get no fee for distributing mp3s...

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Actual damages in copyright can be the profits the infringer made from the infringement or the profits the copyright owner lost due to the infringement, so first of all the potential damages (if there was copyright infringement...which is an allegation that as far as I know no one has even been able to guess what it might be) could be up to what Oracle would sell a license for, which I suspect could be a considerable amount. So, I'm not sure PJ is correct here about the potential damages being cut immensely, at least if Oracle asks for actual damages.

Second (and this is the part that is relevant to file sharing), actual damages can be difficult to calculate. It is often highly speculative how much an infringer profited from an infringement, or how much the copyright holder lost due to the infringement. To deal with this difficulty, US copyright law has a thing called STATUTORY DAMAGES. The plaintiff can elect to ask for statutory damages instead of actual damages, and the court is then allowed to come up with a damage number from a range specified by the statute. That range is from $750 to $30k per infringed work, with the court having discretion to drop the low end to $200 if the defendant was not aware and had no reason to believe they were infringing, or to raise the high end to $150k if the infringement was willful.

All the file sharing lawsuit damage awards have been statutory damages, and have involved many songs. Each song is a separate work, so if the court is nice and goes low ($750) but there were 40 songs, that's $30k. The two most prominent defendants, though, were blatantly guilty, and in one case lied under oath and tried to destroy evidence and tried to frame her kids for the infringement, so the court was not inclined to go for the low end of the statutory damages.

(Note that when the RIAA goes after a file sharer, they usually offer to settle for an amount that is under the minimum they would get from statutory damages, which is why if you are in fact guilty, you should settle).

In the case of Android, it would be likely that there would only be one work infringed (although maybe different libraries are different works, so maybe there are more...), and so even if Oracle got $150k/work, it would not be an amount that would be large for Google. Maybe this is what PJ was thinking of?

Ah, thanks for the very insightful reply. I didn't realize the distinction between damages being profits the infringer made, or profits the copyright owner lost. Also statutory damages.

Thanks!

EXAMPLE: Some years ago, Frank Music. Corp., owner of the copyright in the musical Kismet, sued the MGM Grand Hotel for using material from the musical in their floor show. The original damage award was a percentage of the ticket sales to the floor show, which didn't amount to that much.

After all the appeals were over and the dust settled, Frank Music Corp. ended up with an award of 2% of MGM Grand's total revenues during the relevant time, as indirect profits arising from the infringement. The rationale was that the floor show was a draw for the casino, the restaurant, the hotel itself, etc.

The appellate court's opinion is at http://ftp.resource.org/courts.gov/c/F2/886/886.F2d.1545.87-...

That's a very interesting observation. I think it hinges on the fact that filesharing 'damages' can be directly related to a product that would have otherwise been sold (or at least, so they allege). In the case of Oracle vs Google though, Google receives no payment for their product, but as far as I know neither does Oracle.

The java runtime is available to anybody free of charge for the 'price' of a download, so what - if any - damages Oracle intends to show is a mystery to me.

It's fairly disingenuous to say that Google doesn't get paid for sales of Android.

They get no direct payment, but they are indirectly paid via:

- Increased take up of Google Mail and Google Apps (with associated desktop ad revenue).

- Increased take up of Google Voice (both for Android, and also for the iPhone which was at least in part a result of pressure from GV on Android).

- Maintenance of a viable mobile ad market. (By which I mean an ad market which isn't Apple-dominated.)

Plus every other indirect network benefit. I think a good lawyer could certainly establish a plausible link.

Indirect revenue does not come in to play here, just as RedHat isn't obliged to pay Linus Torvalds or RMS.

A good lawyer might make that link, but that won't entitle them to a share of that particular pie.

And you'd still have to prove that increased use.

RedHat isn't obliged to pay Linus or RMS because the license they distributed their work under does not require it. Making or not making money has nothing to do with it.

If Oracle distributed their work under a license that permitted use by Google this is evidence of permission not to pay them, not evidence that monetary 'loss' has not occurred.

Some claims are treated less harshly if it was done without a profit motive. This appears to be something that Google is trying to benefit from.

However the claim that they will make no profit from the success of Android is pretty outrageous. If that was true, why did they bother?

Outrageous claims are pretty standard practice of course, but this one is still laughable. And since this is a civil case proof will most likely be accepted on the balance of the probabilities rather than a tougher standard.

(In this case I'm no supporter of Oracle, just to be clear.)

From my reading, this combined with the use of the unclean hands defense: http://en.wikipedia.org/wiki/Unclean_hands, helps to protect them against both types of damages.

I wondered about this, too. As far as I understand, that they don't get any payment would only be relevant if they were claiming fair use, since that's one of the criteria.

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