The long running legal battle between Oracle and Google over alleged infringement, by Android, of some Java code from Sun (which Oracle acquired), has reared its head again. This an unwelcome development in smartphone software circles, where it was thought the affair had been settled after a second jury trial completed in 2016.
This reached a straightforward conclusion, that an application programming interface (API) is not copyrightable, so the case against Google was dismissed.
What Google had done was to embed 37 separate API calls to Java programming in Android – having decided not to use Sun’s Java implementation for its mobile operating system, but to adopt its own variation, Dalvik (which has since been replaced).
In the past, such use of APIs was almost always regarded as fine and there were no precedents to suggest this practice would require a paid licence. But an appeals court judge, looking at the issue with the benefit of hindsight , saw that Google had gained some time advantage in its Android go-to-market strategy, and concluded that APIs were copyrightable after all.
Of course, Android has made money for Google, but just how much of that money is attributable to these 37 Java APIs is impossible to calculate. In the first trial a jury got confused over the tit-for-tat claims, and in the 2016 follow-up, the ruling was that APIs could not be copyrighted.
Had the judge at the time not made this point himself, the jury might well have agreed there were damages to allocate. If those had been set at about 1% of Android profit, and the jury had accepted legal arguments at the time that Google had made well over $40bn in advertising from Android, with 10% of that being net profit, the damages might have amounted to around $40m. Google would have been happy to settle for a payment of $100m at one point, though Oracle was calling for $9bn.
Now all bets are off and given that the Supreme Court has already declined to hear this case in the past, and won’t want it again, a jury will almost certainly be instructed to award damages.
Given that Sun Microsystems wrote Java and said openly that it did not want licence fees, it can be argued that Java was just another computer language which would not have been so widely accepted had it not been seen as “free” and without license. Once Oracle acquired Sun, it attacked Google in 2010. The spat then dragged on for the next six years
In creating its mobile OS, Google opted to design its own Java virtual machine, using the Dalvik machine (now superseded by Android Runtime) rather than using the VM from Sun. It then used the same API calls to make this compatible with Java.
The judge in the appeals court is reported as saying that using APIs to create a rival product must require licences, but Oracle has no rival product to Android, so that seems an imperfect base for a ruling that could sit as a lasting precedent. It it does, then no piece of software will be able to work with any other using an API call, which would have a profound effect on cloud apps, voice APIs like Alexa and even most software built on an operating system. The scope for companies to demand licensing fees for almost anything would inflate the price of software overnight.
We suspect that Google will see this and fight the case all the way up to the Supreme Court once again, not only for its own case, which will likely not cost it very much, but for the sake of its principles around open source software.