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Java jury finds Google guilty of infringement: Now what?

All eyes on Judge Alsup as big questions remain unanswered

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Analysis No judge has tried harder than Judge Alsup, presiding over the Oracle-versus-Google case, to persuade two warring parties not to go to court. But he hadn't counted for the egos of the two billionaire Larrys.

The jury seems to affirm Alsup's instincts were correct. At the weekend, after five days of deliberating, the panel turned in its verdict on the first phase of the trial, covering copyright issues. The jury found Google to be unequivocally guilty of copyright infringement on the major charge, copying the "overall structure, sequence and organization" of Java for its mobile operating system Android. Google isn't guilty of infringing the Java documentation, the jury decided.

However, the jury was unable to reach a verdict on whether Google's use of the code was permitted under "fair use" - a US legal concept covering exemptions for special purposes such as literary criticism, accessibility for blind users, and so on.

Fair use has expanded to include very limited clean-room copying for compatibility purposes, and Google tried to use this to justify the use of Java APIs in Android. However, Alsup didn't like this argument, and so when some jury members wanted more time for their deliberations, the judge allowed them to leave the question blank.

Oracle, which had sought $1bn in damages, welcomed the interim verdict: "Google knew it needed a licence and … its unauthorised fork of Java in Android shattered Java's write-once-run-anywhere principle." Google wants a retrial. "The core issue is whether the APIs are copyrightable, and that's for the court to decide," the company said.

It's not as clear cut as either side would have you believe.

Google only appeared to realise late in the day that there could be collateral damage - giving it a small patch of moral high ground to claim. Defeat could potentially allow an extension of copyright into previously undisputed areas, such as programming languages and APIs.

For two years, much of the tech press has reported the skirmish as a patent dispute, perhaps not surprisingly as the initial fusillade from Oracle alleged infringement of seven patents. But as we noted at the time, "this is no simple dispute over the violation of patents, though". Oracle alleged code was copied, and what could be copied became fairly central to Oracle's case.

We need a licence? We'll cross that bridge if it appears

For its part, Oracle has presented damning and unequivocal evidence that Google knew it needed a licence if it was to build Android on Java, but it didn't negotiate one figuring it would face the consequences if and when they came.

But Sun's management during the 2005-2009 period, embodied in the catastrophic appearance of former Sun CEO Jonathan Schwartz at the trial, gave Google every comfort that the judgement day would never come. Schwartz, who had authorised millions of dollars to be spent on a happy-clappy "participation economy" ad campaign, welcomed on his blog Google's copying and fragmentation; hostile litigation didn't start until long after Oracle had acquired Sun and bundled Schwartz out of the door. That may have been enough to temper the damage Oracle wanted to prove.

Ultimately, it's Judge Alsup who will decide on whether he considers APIs to be copyrightable in this instance - and on whether Google's copying can be covered by fair use. The case is unusual, and troublesome for the entire software industry, because Java itself is quite unusual. It's a hairball (as former CEO Scott McNealy might put it) of many things: a runtime, a language, frameworks using that language, compatibility tests, and documentation. A precedent appropriate to Java may be used inappropriately elsewhere.

Potentially, the effects could be severely disruptive. Could IBM reclaim ownership of SQL, and for that matter, markup languages such as HTML - which are all descended from work originating at Big Blue? Or is Java such a singular case, that only extensively derivative copies, such as Android's implementation, could be contested? If those IBM examples sound absurd, then remember that absurdity is no obstacle to a determined litigant. Demanding royalties from ISPs for the use of HTML hyperlinks was pretty absurd, too.

Contrary to some reports, the situation remains ambiguous. Europe effectively threw the issue back to national courts to apply some common sense to the issue. "It is only through the choice, sequence and combination of those words, figures or mathematical concepts that the author expresses his creativity in an original manner," the European Court of Justice affirmed. Nobody wants to set a precedent.

The copyrighting APIs and languages is a Pandora's Box - and the trouble with a Pandora's Box is that nobody knows what's inside. ®

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