Fair Use Key to Big Pay Day for Oracle

By Darryl K. Taft  |  Posted 2012-05-08 Print this article Print


To get a big pay day from this case, Oracle has to show that Google outright stole Java. And fair use is key to that. The fair use doctrine has to be shot down in order for Oracle to show that Google willfully infringed on its copyrights and patents. And with willful infringement, Oracle would be eligible for triple damages from Google. Alsup hinted that he believed evidence of willful infringement by Google was strong earlier in the trial.

In a post about fair use from May 6, Florian Mueller, an expert on technology patents who has been watching the case closely but who also took a position as a consultant to Oracle, said:

"There's consensus among observers of the Oracle v. Google Android/Java trial that the jury has most likely identified infringements but hasn't yet reached unanimity on Google's 'fair use' defense. Google's counsel was initially opposed to a partial verdict, though it appears that he would now accept one. But he didn't want the judge to ask the jury foreman whether the vote on the remaining question was 'close.' Google can probably figure that the evidence for willful infringement and against 'fair use' is overwhelming, but [former Sun Microsystems CEO] Jonathan Schwartz' testimony might have had just enough of an effect that a minority of jurors doesn't want to consent to a finding that would be very likely to result in Google being found liable."

Schwartz testified that Sun's Java APIs were not considered proprietary, and Google attorneys pointed to a Schwartz blog post lauding Google for developing Android. However, Scott McNealy, the CEO of Sun prior to Schwartz, testified that Sun did indeed consider its APIs proprietary.

"One concern within the Java community is that the 'Java-like' language on Android in essence fragments the Java market, and requires developers to understand the differences and nuances between developing a Java application and developing one for Android," said Scott Sellers, CEO and founder of Azul Systems, which provides solutions that optimize Java for the enterprise.  "We believe in a single, unified Java language and runtime and one which runs across all platforms, so in this regard developers would simply like to see the real Java be supported on Android."

Meanwhile, both parties issued statements regarding the verdict. Oracle said: "Oracle, the nine million Java developers, and the entire Java community thank the jury for their verdict in this phase of the case. The overwhelming evidence demonstrated that Google knew it needed a license and that its unauthorized fork of Java in Android shattered Java's central write once run anywhere principle. Every major commercial enterprise€”except Google€”has a license for Java and maintains compatibility to run across all computing platforms."

For its part, Google said: "We appreciate the jury's efforts, and know that fair use and infringement are two sides of the same coin. The core issue is whether the APIs here are copyrightable, and that's for the court to decide. We expect to prevail on this issue and Oracle's other claims."

As soon as the jury finished entering its partial verdict on the copyright issue, Alsup moved directly to the second phase of the trial to focus on patents. Phase three of the trial will deal with damages.

The case, which was heard in federal court in California, captivated the technology community for several weeks as Oracle CEO Larry Ellison clashed with Google CEO Larry Page about what company, if any, owns the rights to Java€”one of the world's most widely used programming languages. The trial also featured a parade of former Sun Microsystems executives and detailed account of the creation of APIs used with the popular Android mobile OS.

"It's important to recognize that there are really two separate issues at hand here€”the first is the issue of programming APIs and whether they can be copyrighted," Azul's Sellers said. "The second part of the litigation is Oracle's claim that Android infringes on patents held by Sun/Oracle. On the second part of the litigation and Oracle's patent infringement claims, it seems likely given the wealth of patents Sun/Oracle holds in this area that Android infringes on some, and ultimately comes down to how many dollars and business concessions need to be exchanged to resolve the dispute. We are hopeful the outcome of the litigation will benefit the Java community by maintaining a single, unified Java."

However, despite the greatest of hopes and desires, it is clear that a jury can be unpredictable as evidenced by the May 7 verdict.

Darryl K. Taft covers the development tools and developer-related issues beat from his office in Baltimore. He has more than 10 years of experience in the business and is always looking for the next scoop. Taft is a member of the Association for Computing Machinery (ACM) and was named 'one of the most active middleware reporters in the world' by The Middleware Co. He also has his own card in the 'Who's Who in Enterprise Java' deck.

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