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Oracle Java copyright war latest: Why Google's luck is about to run out

Database giant claims web ads goliath tricked court, Android isn't just phones

Analysis Oracle says one of the foundations of Google's legal victory in the Java API copyright trial has exploded – and that means a retrial is needed.

Oracle was trying its luck in court yesterday, demanding a retrial – although regardless of its success in forcing a third trial, the outcome of the second trial is on course to be heard by an appeals court.

Although the debate around whether "Android is Java" or merely "very Java-like" can and probably will continue for years, it's irrelevant from a legal point of view, for the facts aren't in dispute.

Google's Android team copied some 11,000 lines of application interface code from Sun's Java core libraries as it created the mobile operating system. In evidence subsequently presented to the court shows that executives knew the team probably needed a license from Sun – and set about negotiating one. But those negotiations were never concluded.

At first, Sun's ponytailed CEO Jonathan Schwartz was at the zenith of his "take everything – take it all" phase, but this changed in 2009. Java's new owner Oracle didn't share Schwartz's child-like desire to be liked, and thought giving away its intellectual property was a spectacularly stupid thing.

Oracle wondered why on earth Google didn't have a license. "Ellison has made it pretty damn clear that open source is there to serve his goal of profit," The Register noted the following year.

"We tried too hard to share," Scott McNealy, cofounder of Sun, admitted. "I think we got the donate part right, I don't think we got the monetize part right."

Google refused to take a retrospective license, so litigation began – and it's rumbled on ever since. So how did Google achieve a victory in what seems like an unpromising situation? In part, it was through extraordinary luck.

In the 2012 trial, Judge William Alsup directed the jury to make one single very narrow decision, and discard everything else. That decision was whether Google could make an affirmative defense to the copying: fair use. To claim fair use successfully, you have to address these factors:

  • Is the copyrighted work being used for commercial gain, nonprofit educational purposes, or somewhere in between?
  • Is the final piece a work of genuine creative expression?
  • Is a reasonable amount of the copyrighted work being used, or is it a substantial amount?
  • Will the use affect the market for or value of the copyrighted work?

It's hard to see how Google could satisfy any one of these, but here we are. The jury looked to Alsup for advice, and Alsup was telling them to throw out Oracle's case.

In the end, Google was found guilty of copyright infringement but the jury couldn't decide if lifting the API code was fair use. In a second trial – the one that concluded in May this year – the jury decided, yes, it was fair use after all and Google therefore didn't owe Oracle billions in damages.

Alsup had clouded the waters to great effect, throwing in an issue that Google exploited very well: the so-called "copyright-ability of APIs," which we've dealt with before. For now, remember that while a great deal of creative expression is theoretically "copyrightable" – and in reality is automatically "copyrighted" – that doesn't mean it can then be used to successfully prosecute a copyright infringement case. It all depends on who, what and how much is copied.

In public, Google attempted to paint the trial as an extension of copyright law into new areas. But in reality, APIs had never not been under copyright.

Many musicians have seen quite decent-looking infringement arguments against plagiarists thrown out, too. In reality, just because you own a copyright on a work doesn't turn it into David's Ark of the Covenant.

Purely out of self-interest, Silicon Valley's huge tech lobbyists want you to think copyright and the case law around it is crazy, but it's actually pretty sensible, and most people like it that way.

It's hard to reconcile the media bubble with reality sometimes, but in Court, Google didn't deny it had copied Java, and it didn't deny it had infringed.

Yesterday's courtroom arguments hinged around a peculiar legal argument Google had made in the retrial. Google had argued that the Java infringements only concerned smartphones – because Android was a smartphone system. This was an odd argument to make, since the code was copied from Java SE – basically, desktop Java – not the mobile edition, Java ME.

Oracle argues that when Google announced its Android app runtime for Chromebooks at this year's I/O developer conference, Google had undermined its own argument. In other words, Google had indicated that Android and its rip off of Oracle's copyright went beyond phones and tablets.

Google effectively admitted that its infringement, in theory, allowed Oracle to pursue it for Android on TV, laptops, desktop machines and other device platforms.

Fortunately for Google, the presiding judge is once again its guardian angel: William Alsup. Once again, he's marking his own homework. Oracle said that by basing Android on Java, Google had gained a major advantage. It was why Android hit the ground running – developers knew the interfaces, they knew the libraries, they could build apps for it straight away. Alsup was scornful of this argument.

If and when the appeals court hears the case, Guardian Angel Alsup won't be anywhere near the courtroom. The three-judge panel is not there to decide who is the more lovable. This particular court is not hostile to the notion of intellectual property, and demolished Alsup's arguments before, in pretty unambiguous terms – hence the retrial.

Even a company as lucky as Google can find that its luck might run out, eventually. ®

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