Uber red-faced from Waymo legal row judge's repeated slapping
Still allowed to continue self-driving research, however
Uber has two weeks to make sure Waymo receives all of its stolen documents back and one month to give a full accounting of all its interactions with the former-Waymo engineer who stole them.
That's the upshot of a damning partial injunction [PDF] issued by the judge in the trade secrets case on Monday – a judgment that eviscerates both Uber and the engineer in question, Anthony Levandowski.
Judge William Alsup slams Uber's "relentless concealment of likely probative evidence," notes that some of its claims "strain credulity" and complains that its carefully manufactured denials that the stolen files were used by Uber "leave open the danger of all manner of mischief."
Following the order, Levandowski is effectively a dead man walking: he will be legally banned from working on Uber's self-driving LiDAR technology and a court-appointed "special master" will make sure the order is followed.
The judge concluded there is no doubt Levandowski stole the 14,000 documents and that he actively sought out Uber to invest in his company. The question as to whether Uber and Levandowski agreed to set up a new company – Ottomotto, which Uber then bought for $680m – in an effort to provide a legal smokescreen for the theft of the technology is left open, but there is plenty of evidence to suggest that it was the case.
The judge gives some clear pointers to where to look for evidence of possible illegal activity – pointers that the US Attorney will be looking into after Alsup referred the case over to them last week.
There are a number of other unsettled issues that the order seeks to provide greater clarity over:
- Did Uber use Waymo's technology to produce its own LiDAR system?
- Did Uber effectively agree to buy its competitors' stolen technology from Levandowski?
- Is Uber lying over how much influence Levandowski had in the development of its self-driving tech?
Despite his harsh words, the judge did not grant Waymo's request for an injunction against Uber. The company will be allowed to continue developing its self-driving technology so long as Levandowski has nothing to do with it.
"It would be wrong to allow any company to leverage a single solution into a monopoly over broad swaths of other solutions," Judge William Alsup wrote. "To do so would be to allow monopolization of broad scientific or engineering concepts and principles."
He also warns that "even a limited injunction would impose hardship on Uber's overall LiDAR development that is disproportionate to Waymo's limited showing of misappropriation by defendants thus far."
Even if Waymo wins the case in court, it will still be a "bone-crushing endeavor" for it to adequately prove that Uber has used its technology, Alsup notes.
Waymo does not escape criticism. The judge slams its "gamesmanship" in the case and notes that very few of the claimed 121 trade secrets can be realistically defined as such, writing that it has repeatedly "overreached" in its claims. In one part of the 26-page order, he goes to some lengths to explain the basic physics of optics to mock Waymo's assertion of a trade secret.
"Waymo's supposed trade secret is nothing more than Optics 101," Alsup chortles. "General approaches dictated by well-known principles of physics, however, are not 'secret,' since they consist essentially of general engineering principles that are simply part of the intellectual equipment of technical employees."
He also throws out Waymo's two claims of patent infringement.
The order was originally sealed when it was made late last week and the released version makes it clear why: the pages covering the trade secrets that the judge feels are relevant are littered with redactions, making them essentially unreadable.
What does emerge is greater detail over how Levandowski stole the documents and the lengths he and Uber went to in order to protect that fact.
While still at Waymo, Levandowski used his work laptop to search the company's intranet for the terms "chauffeur svn login" and "chauffeur svn eee setup." "Chauffeur" was the name of the self-driving project at Google before it became Waymo; "SVN" was the password-protected repository of its design files, schematics, and various confidential information.
Google had put in place pretty good security: you had to use special software called TortoiseSVN to access the repository and all traffic to and from it was both encrypted and authenticated; the user list was regularly audited.
A week after his searches for information on how to get into the SVN repository, Levandowski downloaded the TortoiseSVN software and immediately grabbed 9.7GB of data. Three days later, he plugged in a portable storage device and transferred it all. Four days after that, he reformatted his laptop and did a clean OS install in an effort to hide his tracks.
It was just before the Xmas holiday in 2015. When he came back to work in January, he downloaded a small number of additional documents and was in contact with Uber executives who were emailing one another about version five of a "milestones" document ahead of a meeting with Levandowski the next day – that document has still yet to be released by Uber.
Two weeks later, Levandowski unexpectedly quit Waymo and started up his new company. And just two days after that, more Uber internal emails show that it had agreed to defend Levandowski against possible litigation and had already started due diligence work on buying his company.
But it wasn't until nine months later that Google/Waymo discovered that Levandowski had stolen the 14,000 files from its system. Waymo had grown increasingly suspicious about Ottomotto and the fact that its staff kept being poached by the company, so a Google forensics security engineer, Gary Brown, dug into access to the secured SVN repository and found Levandowski's massive data dump as well as similar, but smaller, data grabs by two other Waymo employees who subsequently moved to Ottomotto and then Uber.
Levandowski received $250m in Uber shares as part of his deal with the company.
Where have they gone?
The big question at this point is: did Uber use those stolen documents in developing its own LiDAR tech?
Uber swears the files have never entered its system and has provided text searches of its internal systems that bring up nothing as evidence that it has no knowledge of them. Judge Alsup is not persuaded and has given the court-appointed special master the ability to run more than specific text searches to see if the documents are there. The judge also notes that it is more than possible that Levandowski simply kept the files on a personal device and referred to them whenever needed.
The judge is also entirely skeptical about Uber's claims over how its technology has developed in recent years. "Defendants have also presented an 'independent development' narrative in which they developed their own LiDAR technology without using any confidential information from Waymo," he writes in the order.
"That narrative, however, studiously omitted any inquiry into Levandowski's work, essentially erasing him from the history of Uber's self-driving car development. Put differently, the record shows Uber bought Levandowski's services for a tremendous amount of money and positioned him at the forefront of its self-driving car efforts but is barren on how Levandowski has been earning that money and title."
In other words: yeah, right. In fact, the judge makes it plain that he believes he is looking at an "old-fashioned, all-American misappropriation of trade secrets."
In an effort to get to the bottom of things, Judge Alsup issued a number of orders, including that Uber must, in writing, prevent Levandowski and any other employees or consultants from consulting or copying the stolen Waymo files, and well as return any copies to Waymo by May 31.
As for Levandowski, Uber must "immediately remove him from any role or responsibility pertaining to LiDAR ... prevent him from having any communication on the subject of LiDAR ... and prohibit him from consulting, copying, or otherwise using the downloaded materials in any way."
And by June 23, Uber must provide the court and Waymo "a complete and chronologically organized log of all oral and written communications – including, without limitation, conferences, meetings, phone calls, one-on-one conversations, texts, emails, letters, memos, and voicemails – wherein Anthony Levandowski mentioned LiDAR to any officer, director, employee, agent, supplier, or consultant of defendants."
Once that report is in, it should be clearer just how far Uber and Levandowski colluded when it came to Waymo's files. At that point, Waymo may be in a position to apply again to stop Uber's development of self-driving tech – something that would be an enormous blow to the company. That report may also open Uber up to both massive financial damages as well as potential criminal charges.
On the same day as Alsup's order was published, Waymo confirmed it has signed a new deal with Uber's main competitor, Lyft, to work together on autonomous vehicle technology in both pilot projects and product development.
Unlike Uber, Lyft has said it has no plans to develop its own self-driving tech and the deal with Waymo has been developed over a number of months, according to a report in the New York Times. Details remain thin, however.
Waymo has already inked deals with Fiat Chrysler to include its technology in a new range of minivans and is reportedly in talks with Honda for the same. ®