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. ®
COMMENTS
Misleading
At the risk of being called a fanboy, you obviously don't keep up with Groklaw coverage or even looked at the case in question. To steal the summary from Groklaw's latest update:
"Recap of the day: Google won everything but the one issue that the judge has to decide anyway, the API SSO issue. The jury found, as they had been instructed to assume for the purposes of deliberation, that APIs can be copyrighted, the structure, sequence and arrangement of APIs, but that is by no means established. The same question, in a b) section, asked if fair use excused any infringement if found, and the jury couldn't resolve that issue. But the judge has to decide whether or not that is true, that APIs can be protected by copyright. That comes later this month. Meanwhile, Oracle prevailed only on 9 lines of code that Google admitted prior to trial to have included by mistake and then removed from current Android. Oracle's own expert, the judge pointed out in court, valued those 9 lines of code at zero. This is 9 lines out of millions. So that means, if we are looking at damages, that so far Oracle has won nothing. There is no liability. You can't have infringement without considering fair use, Google asserts, and there will be briefing on that. Somebody has to decide that fair use issue. And then the judge has to decide about the API copyrightability issue. If he rules that APIs can't be copyrighted, as the EU Court of Justice just ruled, then fair use is moot. And Oracle takes nothing at all from the copyright phase of this litigation, and this was heralded far and wide by Oracle people as the big ticket item, if you recall."
I don't claim to be a big Groklaw fan, but I do read their coverage to get a balanced reading on the issues at hand, like I did in SCO vs IBM, et al too. Basically, Oracle won nothing. Google stuck to their "fair use" argument (which is fair, because all they used is the API interface - which is DESIGNED to be "copiable" - and the "9 lines" are really worth nothing even if they came with comments that said "HAHAHAHAHAHA! WE STOLE THIS FROM ORACLE!" all over it).
But, strangely, so far BBC, Slashdot and now The Reg are somehow writing articles that claim it's the end of the world for Google and game over and Google were naughty. I can't really see that side myself at all, but I haven't read *EVERY* court transcript there is. There are strange parallels to the SCO vs IBM argument that "this standard .h file which you need to interface with POSIX applications has very similar 'code' (i.e. numbers corresponding to a list of constants) in Linux for the purpose of POSIX applications using it!).
I don't think this will do anything to the industry or Google at all but someone, somewhere, somehow, has managed to turn it into something that will dent Google's share price when, actually, Oracle - and anyone who parrots their claims - is looking extremely dodgy to me.
Mr. Orlowski, justice is not about who you like and who you dislike
It is about right versus wrong as per the written laws. What Jonathan Schwartz did or did not at that time might be seen as catastrophic but that is the history and those are the facts. As much as Oracle would like, with all their money and lawyers they still can't turn back time. It is one Larry's ego that is the problem here, and he is the one inclined to ruin the whole software universe just to get more money. SCO tried to do the same and failed miserably.
In your opinion Google should cave in just because they can afford to pay and because it is for the software industry's good to settle this matter. You can of course use these arguments to defend any protection racket and make it look socially acceptable but not in a court of justice.
You missed the biggest outstanding question, the one not put to the jury: Can an SSO be placed under copyright at all? That one is for Alsup to decide. FWIW, the EU court just ruled that, in fact, SSO's and APIs et al can NOT be under copyright, at least in the EU. Currently there is no definitive US law that says otherwise. Alsup will make the final call, but if he decides that they are copyrightable, it would put the US out of step with the EU on this important question and turn decades of computing practice on its head. Most pundits feel that he must rule the same way as the EU court did, which would completely nullify any finding of infringement.
Even if the finding holds, Oracle stands to gain -- at the utmost -- only about $150,000. I think that Google can probably afford that.
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