Google Wins Patent Fight – But It Ain’t Over ‘Til It’s Over

Chances are there might not be another lawsuit involving open source licensing and application programming interfaces for a long while. They’re just too darnned difficult to argue, explain and win.

Juries of regular people, by and large, do not understand the software development process and its licensing business, nor should they be expected to do so. They are peers to IT professionals as persons, but not as professionals. A case the nature of Oracle v Google, which has been in the news for two months and has the potential to be a landmark case, would have been better served by a qualified jury that knows this topic.

But, because that would open a can of worms in the US court system that nobody even wants to consider, the courts proceed in the conventional manner.

Google Wins Second Round

Oracle learned first-hand – and the hard way by spending millions on lawyers – that it isn’t such a simple proposition to nail a “forker” of open source software to the legal cross. On 23 May in the closely watched Oracle v Google trial , Google and the open source community logged into the record a solid legal victory when a 12-person jury unanimously found Google not guilty of infringing on two of Oracle’s Java patents.

As my colleague Darryl Taft reported in eWEEK, the jury found that Google did not infringe on the two Java patents that Oracle had asserted in the case – US Patent RE38,104 and US Patent 6,061,520.

The judge in the case, William Alsup, has dismissed the jury but he still must decide on leftover issues from the copyright phase of the trial. Alsup said he would come to that determination within a week.

Those leftover issues involve Google’s so-called “fair use” of the Java APIs. And they are very important. Turns out the jury of regular people couldn’t agree as to whether Google overstepped its bounds in forking Java to help build its popular Android mobile device operating system a few years ago.

The truth, however, is this: Java has been forked hundreds, perhaps thousands of times in its 17-year history, by many developers. But those developers haven’t been sued by a huge company with many lawyers like Oracle, either.

Forking Foregoes “Pure Java”

When Java gets changed for a specific purpose, it then forgoes the label “Pure Java” and is disowned by Oracle’s Java franchise. No support, no updates, nothing – you’re on your own. But it’s still Java, it delivers code across the Internet, and it gets the job done most of the time.

That was the whole idea back in the early ’90s, when James Gosling and his Sun Microsystems band of developers created the now-ubiquitous programming language. Gosling and his gang designed Java as a key link to connect what he called “Big Hunk” servers to desktops, to cars, to mobile devices, to TVs – to basically anything.

When Sun released Java to the open source community in 2006, it was not only a gift to the world but it also was a nod to the fact that Java had already been copied and forked thousands of times in 11 years.

Java is everywhere on the Internet, moving code from place to place and activating applications, so much so it has become an integral part of the infrastructure background, like XML or TCP/IP. It’s just there, it works, and it keeps on working 24/7.

Java Taken For Granted?

Java is easy to take for granted, and Oracle knows it. It is simply trying to protect what it owns; it’s just very difficult to prove negligence against a competitor when it comes to open source and APIs.

Java’s APIs are the central issue in this trial. APIs are a combination of several components: software, instructions, best practices and techniques. And techniques are not copyrightable, so that begs the question: Are APIs in their entirety copyrightable?

That was the core of Oracle’s case against Google. The jurors couldn’t agree so this now goes to The Decider: Judge Alsup.

Google and Oracle have both won parts of this case, but it isn’t over until the judge says so. Even then, appeals may come into the picture.

It’s an important case.