Back in July, which seems like light-years ago in Oracle's Java software patent and copyright infringement suit against Google, U.S. District Judge William Alsup of San Francisco federal court read aloud in open court portions of a seemingly damning August 2010 e-mail from Google engineer Tim Lindholm. Lindholm had written to Andy Rubin, the Google vice-president in charge of the Android operating system, that he'd checked out technical alternatives to Java, "and think they all suck," the email said. "We conclude that we need to negotiate a license for Java under the terms we need."

Google, of course, didn't negotiate a license, which is why Oracle soon thereafter filed its sweeping suit. Alsup warned Google at that July hearing that the Lindholm email was going to be trouble if the case went before a jury. "You are going to be on the losing end of this document," the judge said.

In the three months since, Google and its lawyers at Keker & Van Nest have fought like hell to get the Lindholm email out of the record. They have lost at every turn. Alsup has now ruled on three different occasions that the email isn't protected and should stay in the public record. His magistrate judge, Donna Ryu, has also found that the email isn't shielded by attorney-client privilege. You might think that Google would get the message -- particularly because in his Oct. 20 decision, weighing in at an un-Alsupian 15 pages, the judge reproduced the entire text and history of the Lindholm email.

But like a candy-crazed toddler who really, really doesn't want to go to bed, Google seems to think that if it asks over and over for the same thing, it will eventually get the answer it wants. On Nov. 1, Keker & Van Nest indicated in a brief to Alsup that it intends to request that the U.S. Court of Appeals for the Ninth Circuit review the matter of the Lindholm email -- sort of like asking Grandma to overrule Mom and Dad. Who knows? By the time this case gets to its delayed trial date in 2012, Google may have taken the Lindholm email to the U.S. Supreme Court.

To be fair, Google's arguments about attorney-client privilege and alleged violation of a protective order are not silly (or, at least, weren't silly when Google first raised them). Immediately after Oracle's lawyers first referred to the email at separate hearings before Alsup and Ryu in July, Google asserted that the document was shielded by privilege. The email included an "attorney work product" heading, and its recipients included a Google lawyer. Moreover, Google argued, Oracle had gotten drafts of the email by mistake, and had improperly disclosed materials that were clearly marked "Highly Confidential-Attorneys' Eyes Only."

In his first ruling on the email in August, Alsup said that the draft Oracle originally disclosed was not privileged, by definition, since it wasn't actually sent to anyone. "Thus, the document is not a communication of any type, much less a communication protected by the attorney-client privilege," the judge wrote. "Simply labeling a document as attorney work privilege or sending it to a lawyer (measures which, in any event, were not taken with respect to the document in question) does not automatically trigger privilege." Alsup denied Google's motion to seal a hearing transcript and ruling that included his references to the damning document.

The magistrate then took up the issue of whether Oracle could continue to use the Lindholm email -- including the actual message that was sent to the Android VP, and not just drafts -- in the infringement litigation. After full briefing, she concluded on Aug. 26 that the email was not privileged and ordered Google to turn over the actual message and all drafts to Oracle. That's the ruling Alsup endorsed in the Oct. 20 decision in which he reproduced the email in its entirety.

Google, however, had a pending motion asking to keep the email under a confidentiality order. Oracle suggested that Google drop the motion, given the judge's ruling that the document isn't protected. Google refused. Because it intends to appeal Alsup's order, Google said, it had to take all reasonable steps "to prevent the disclosure of the information Google contends is privileged and confidential." And besides, Google added (by way of beating a dead horse), the email never would have become public if Oracle hadn't improperly disclosed it in the first place.

I bet you can guess what Alsup made of that argument. On Wednesday, in his third ruling on the Lindholm email, the judge said his own publication of the entire email in the Oct. 20 order -- which Google did not challenge as improper -- meant that the document is in the public domain. (It should probably go without saying that a Google search of "Lindholm email" pulls up thousands of hits, many of which reproduce the email's text in full.) "The Lindholm email and drafts shall be treated as neither privileged nor confidential in this action," Alsup wrote. "Accordingly, Google must produce to Oracle new copies of those documents without the 'Privileged & Confidential' footer that was added for production."

Next stop, the Ninth Circuit.

Google counsel Robert Van Nest declined comment in an e-mail. An Oracle spokesperson also declined comment.