Oracle Google case re-emergence does no-one in software any favors

The resurfacing of the Oracle Google court case this week is pretty unwelcome in software circles. The second Jury trial, completed in 2016, reached a pretty straightforward conclusion, that an API is not copyrightable, so case dismissed.

What Google had done, perhaps rather cheekily, was to embed 37 separate API calls to Java programming. In the past this has been universally seen as fine and there are no precedents which suggest this requires a paid for license. But an appeals court judge, looking at it with the hindsight that by doing this it gave Google a bit of a time advantage in its Android go to market strategy, has said that actually API’s are copyrightable.

So this is not Google stealing Java, this is about it writing a mobile operating system, something which everyone is grateful for, mostly because without it Apple would be charging $2,000 for every phone out there, and none of them would have advanced beyond the iPhone 3 level of capability. Android created the competition which prevented Apple from a global handset monopoly.

Yes it 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 counter claims, and in the last one, completed 2016, just told them that APIs could not be copyrighted.

Had the Judge at the time not made this point himself, the jury would probably have agreed there were damages to allocate and may have decided on about 1% of Android profit, or less based on the code being less than 1% of the code in Android. Even if you accept legal arguments at the time that Google had made well over $40 billion in advertising from Android, the profits are far less, let’s say $4 billion for argument’s sake, and 1% of that would be $40 million. Google would have been happy to settle for a payment of $100 million at one point, so instead of the outrageous $9 billion that greedy Oracle called for at the time of the second trial, the court may well have settled for a sensible figure.

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 for the world to hear that it did not want license fees, you may argue that Java was just another computer language which would not have been so widely accepted had it not been seen openly as “free” and without license. Once Oracle acquired sun Microsystems it immediately attacked Google in 2010, almost as if it bought the corpse of Sun entirely to sue Google.

The spat dragged on for almost six years since Oracle first sued Google. 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, the owner of Java at the time (subsequently acquired by Oracle).

Given that it could have used Java, and that would have been free, all it did was select a different equivalent to Java and use the same API calls to make it compatible with Java.

This is a straightforward case of Oracle seeing how much Google has done with this code, simply wanting to own some of it because some tools it acquired are used in it.

The route Oracle went was to claim Google used Sun APIs which should have been subject to copyright fees, while Google counter-argued that APIs are subject to ‘fair usage’ and so do not require licensing. This is tantamount to saying that a light switch needs to be licensed to turn on a light. APIs convey instructions, that’s all.

The Judge in the appeals court is perhaps confused because he is reported as saying that using APIs to create a rival product must require licenses. Of course Oracle has no rival product to Google, so that’s worryingly wrong.

It is especially so because if this sits as a lasting precedent, then no piece of software will be able to work with any other piece of software using an API call, which just about kicks out all Cloud apps, all voice APIs like Alexa and all software built even on an operating system. Everyone would want license fees for everything, overnight doubling the price of software and changing the entire direction of software, while simultaneously making all technology more expensive to consumers and enterprises. That’s not a decision to be taken lightly.

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 – something we know that Larry Ellison, Oracle founder, abhors.

Ellison, still the chairman of Oracle is one of the richest men in the world, and yet began his company around a relational database which largely did not work for the first 8 years of its existence. He then took the business into financial and MRP software where a ruling such as this, in favor of say IBM or SAP would have killed his own business. This seems to be a simple case of Ellison wanting some of Google’s fortune for no good reason. We don’t think that is likely to be the outcome.