Fair Use Key to Big Pay Day for Oracle
As Oracle and Google Both Claim Wins in the Java Case, What's Next?
Now that a jury has found for Oracle in its patent and copyright infringement case versus Google, what happens next?
A California jury returned a partial verdict in favor of Oracle May 7, finding that Google did indeed violate the company's copyrights related to the Java programming language and effectively stole some APIs for use in the Android operating system. However, the findings were perhaps good for both sides, as the verdict leaves several key questions unanswered.
While Oracle won on the copyright claim, the jury found that Google only infringed on nine lines of code.
At the core of the case is whether APIs are copyrightable. And U.S. District Judge William Alsup, who is overseeing the case, must make that determination in a decision that could be far-reaching for the software industry.
On the issue of what is copyrightable, a CNET report said:
"What is copyrightable is creative expression," said Julie Samuels, an attorney with the Electronic Freedom Foundation "What is not [copyrightable] is functional information. The programming language is not. You can't copyright a language. It's what you make of that language."
Added Bruce Wieder of the firm Dow Lohnes, "Originality is important. If there's one way to do something, then you have a real problem whether it's copyrightable."
A number of companies including Microsoft, Motorola, Apple and Samsung are engaged in an ongoing series of court cases concerning which ones own patents on a number of different technologies, especially technology related to mobile device hardware and software. A decision on the copyrightability of APIs could open the floodgates to more litigation.
The jury deadlocked on whether Google was able to prove fair use of the copyrighted works. Fair use is a copyright principle that says that copyrighted material may be freely used if certain factors are in place or the use meets certain criteria.
"If the jury had come back and said there's no infringement here, that would have taken care of that," Wieder, the Dow Lohnes IP attorney and adjunct professor of law at Georgetown University, told the Houston Chronicle. "Now the question is, what about the defense of fair use? And the answer to that is, we don't know the answer to that."
The partial verdict says Google infringed the sequence, structure and organization of 37 Java APIs through the use of those APIs in Android, according to the jury of five men and seven women. The jury deliberated for a week before returning the verdict May 7 in U.S. District Court in San Francisco.
With the mixed verdict, Google lawyers immediately requested a mistrial, saying there could not be a partial verdict on question 1. Alsup said he will hear motions on the mistrial and have that issue sorted out by Thursday, May 10.
"It is a mixed and not very clear decision," said Al Hilwa, an analyst with IDC. "Much depends on what the judge rules and how the two parties react. It is more likely to trigger appeals and other motions."
John Rymer, an analyst with Forrester Research, told eWEEK: "I'm no legal scholar, but it seems to be the jury's decision is bad news for Oracle. It's just about a 'worst case' decision: Oracle wins on principle, but fails to force Google to significantly change its code and/or collect a big financial penalty. I've always thought that Oracle took a calculated risk that it could reap large enough benefits from the Google suit to compensate for the ill will the suit created among some developers. The verdict of the jury in the copyright case seems to give Oracle paltry benefits in exchange for the developer ill will. This result helps to cement the view of Oracle as the big bad corporation trying to win in the market by squelching innovation by developers. This view of Oracle helps to drive developers away from the company and potentially away from Java."
With the jury findings of May 7 alone, Oracle is looking at nothing more that statutory damages, which could be for less than $200,000a far cry from the more than $1 billion Oracle was looking for.
"I was also struck by the jury's inability to decide whether or not Google's use of Java constituted 'fair use'" Rymer said. "I wonder how many juries couldthe question and software precedents defy logic regular folks can understand."
Fair Use Key to Big Pay Day for Oracle
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 enterpriseexcept Googlehas 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 Javaone 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 herethe 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.