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Google is fighting to hide an email in which it seems to admit to knowingly infringing the Java patents, but with the text already public it will be a hard fight to win.

Both companies have filed their arguments, with Oracle putting the case for exposing the email, while Google argues that it is privileged communication. The letter detailing both sides has been helpfully uploaded by Florian Mueller of FOSS Patents, but basically Google argues that the text was a client-attorney communication, while Oracle claims that's bollocks.

The mail was sent by one Tim Lindholm, of Google, in August last year, and is quite explicit in recognising that an alternative to Java should be seriously considered:

"What we've actually been asked to do (by Larry and Sergey) is to investigate what technical alternatives exist to Java for Android and Chrome. We've been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need."

Google claims that the mail was a draft, autosaved by its systems, and was about to have the attorney's name appended to the "to" field. If true that would make it privileged communications and beyond the reach of the court. Oracle, rather delightfully, points out that the first line of the mail read "Hi Andy" which it calls "a reference to Andy Rubin, the business executive in charge of Android". That would make it a business mail, and thus outside privilege.

The concern seems to be mainly with the tone of the email, and the way in which it could influence a jury if shown to them. Google also points out that by August 2010 Oracle had presented its claim that Android infringed Java patents, so enquiring about how one might work around them was a perfectly sensible step to take.

Mueller points out the case has already seen a potentially much more damaging mail from five years earlier, when Andy Rubin himself seemed to express the same dilemma:

"If Sun doesn't want to work with us, we have two options: 1) Abandon our work and adopt MSFT CLR VM and C# language – or – 2) Do Java anyway and defend our decision, perhaps making enemies along the way."

Ultimately it will be up to a jury to decide if those words show that Rubin knew Android (which was under development at the time) would infringe the Java patents, or only thought it would annoy the Java crowd. If the former then Google would be liable for the triple damages American law imposes for wilful infringement, so the precise meanings of those emails could be worth billions. ®

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