Judge Alsup in Oracle v Google has written,
“In reading the Daubert briefing, it appears possible that early on Google recognized that it would infringe patents protecting at least part of Java, entered into negotiations with Sun to obtain a license for use in Android, then abandoned the negotiations as too expensive, and pushed home with Android without any license at all. How accurate is this scenario? Does Google acknowledge that Android infringes at least some of the claims if valid? If so, how should this affect the damages analysis? How should this affect the questions of willfulness and equitable relief? Counsel should be prepared to address these issues at the hearing.”
Early on, Google was considering using Java in the virtual machine, so the question was appropriate. The reason Dalvik was chosen is that Dalvik has nothing to do with Java and Google would not need a licence for Java.
Expect Google to hit this one out of the park. In education, this is what is called a “teachable moment” – something comes up where the student is wide awake and curious. Google was negotiating with SUN back in 2005-2008 when Android was being developed. Google did not want Android to be GPL software so they did not want to use Java even if they were willing to pay what SUN asked. Google might have negotiated a separate licence for Java, not GPL.
There is something seriously wrong with Google’s attitude to FLOSS/GPL “at the application layer”. A Java VM could run as an application on the OS and would not “infect” Android at all if they set things up right. However, that attitude of Google’s is well documented and should put the nail in the coffin of any idea that Android uses Java and needs a licence for Java.