back to article Java jury finds Google guilty of infringement: Now what?

No judge has tried harder than Judge Alsup, presiding over the Oracle-versus-Google case, to persuade two warring parties not to go to court. But he hadn't counted for the egos of the two billionaire Larrys. The jury seems to affirm Alsup's instincts were correct. At the weekend, after five days of deliberating, the panel turned …

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Copyright an API?

Really? If that happens the IT world is screwed.

Well, even more screwed that it currently is with patents etc.

Google were dumb to fork the Linux kernel and Java as they did. But look at the innovation and industry that exploded around Android. The two players kicking up a stink (MS and Oracle) are nowhere in the spaces Android occupies.

AIUI the Android kernel is coming back into Linux mainline. Looks like the 'freetards' have shown the big corporates up again.

This judgement could have serious implications for the IT world and is a sad day for consumers.

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Go

Re: Copyright an API?

OTOH the way things are going, the way things are at the moment more-or-less suits the big players just fine. Software patents have to have to reach such a level of absurdity before something is done about them and this ruling helps achieve.

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Anonymous Coward

Re: Copyright an API?

Copyright on an API is nothing new and was already covered by the US court of Appeals over the Johnson Controls v. Phoenix Control Systems case back in 1989!

In fact the similarities between the two cases are striking. No wonder the judge brought it up.

In that case they found that "Nonliteral components of computer software may be protected by copyright where they constitute expression, rather than ideas." The court then found for the claimant.

Did the IT world fall over because of this? Of course not.

The discussion is simply how far has Google copied. Is it just the ideas or does it go as far as being expression?

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Re: Copyright an API?

"Copyright on an API is nothing new and was already covered by the US court of Appeals over the Johnson Controls v. Phoenix Control Systems case back in 1989!"

Johnson Controls pre-dates, and is superseded by Feist, see e.g.

http://www.law.cornell.edu/copyright/cases/499_US_340.htm

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Anonymous Coward

Re: Copyright an API?

Aren't the x86 and AMD64 instruction sets also an API after all?

I think we've also seen a few battles between at least Intel and AMD over that.

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Anonymous Coward

Re: Copyright an API?

@Tim

Thanks but are you sure about that? The case you linked to is for "telephone directory white pages". At least Johnson Controls was still about software.

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Re: Copyright an API?

and cross licenced of course so that intel wont have a monopoly.

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Re: Copyright an API?

'Thanks but are you sure about that? The case you linked to is for "telephone directory white pages". '

Yep - bizarre as it may sound. It deals with, inter alia, the concept of originality with regard to protection from copying of compilations. This has been brought up recently in relation to the 'originality' of (at least some parts of) the Java APIs.

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Headmaster

Re: Copyright an API?

"Looks like the 'freetards' have shown the big corporates up again."

Freetard doesn't refer to programmers who work on Open Source projects. These people contribute a lot and choose to release their work under Libre licences. "Freetard" is a term describing those who want to receive things in exchange for nothing, e.g. those thinking the world owes them a copy of every movie.

Freetard and Open Source developer are almost opposites. in concept. One gives freely, the other takes freely.

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Anonymous Coward

@h4rm0ny

The 2 are bundled together by people who still think the Market is the only way to run the world, and therefore free (regardless of whether it is for contributing or consuming) is somewhere around communist and evil. They probably voted for Bush too. :)

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Anonymous Coward

Yawning Donkey

Predictable anti-Google spin.

This is clearly a result for Google.

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You missed the biggest outstanding question, the one not put to the jury: Can an SSO be placed under copyright at all? That one is for Alsup to decide. FWIW, the EU court just ruled that, in fact, SSO's and APIs et al can NOT be under copyright, at least in the EU. Currently there is no definitive US law that says otherwise. Alsup will make the final call, but if he decides that they are copyrightable, it would put the US out of step with the EU on this important question and turn decades of computing practice on its head. Most pundits feel that he must rule the same way as the EU court did, which would completely nullify any finding of infringement.

Even if the finding holds, Oracle stands to gain -- at the utmost -- only about $150,000. I think that Google can probably afford that.

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Mushroom

Alsup will defer to the expertise of the EU decision...

and decide that API's cannot be copyrighted. He will then throw the ball back in Oracle's court and it will be up to them to appeal his decision in law up the various courts to the supreme court.

Only the most perversely stacked Supreme Court would decide to go against the decision of the EU courts.

On the subject of the penalty for the 9 lines of copied source code in millions... Oracle again have shot themselves in the foot here as there are doubts that they have even legally met the requirements for registering the copyright in those 9 lines... so even if they were able to go for the statuary judgement for infringement, it would be thrown out.

Oracle's expert has already testified that the expected damages for those 9 lines amount to zero anyway.

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Re: Alsup will defer to the expertise of the EU decision...

Copyright does not require registration. The creator of any given 'thing' automatically owns the copyright (unless they created it while working for someone else.)

Trademarks, servicemarks and patents require registration but contrary to popular belief, registering those things only gives the alleged infringed upon party the right to sue for damages. It does not guarantee a finding.

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Anonymous Coward

Re: Alsup will defer to the expertise of the EU decision...

as I understand it, registering trademarks, and designs means that should it come to the court, the owner of the registration is effectively starting one-up on the (alleged) infringer.

Registration may give a longer protection period. in the Uk a registered design can be protected for up to 25 years (provided you pay the fees) while an unregsistered one is only 15.

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Re: Don Jefe: Copyright does not require registration.

...but in the US system winning statutory damages does require them to be registered at the claimed time of infringement. Despite Oracles heroic efforts to push the 'call 2600 times while Android starts' line, the only payout left is statutory damages, their own efforts to artificially inflate the total damages having zero rated this one.

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Re: Alsup will defer to the expertise of the EU decision...

I've seen what I think are the nine lines. I'm not a Java programmer (mostly C and 360/370 assembler) but think there's about a 50% probability I would, independently, have implemented the function identically. The only other reasonable alternative I saw would have inverted sense of the comparisons and got the same result. The infringement, if it really is such, is hardly worth a lunch for the lawyers.

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@a582435

Not sure it matters how Alsup rules on this. Given the size of the egos and the markets in this lawsuit, I expect it to go all the way to SCOTUS. Of course, Alsup producing a well-reasoned ruling will help, but ultimately I don't think he makes the final call. Frankly I'm not sure I want SCOTUS making the final call either. Except of course that having Congresscritters decide it is even less appetizing.

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@paulc

Keep up that kind of ranting and SCOTUS will rule to copyright the API. SCOTUS is beholden to no other court when determining American Law. I thought we settled that dispute back in the 1770-1820 time period.

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Re: Copyright does not require registration.

Major Nit: While your statement is technically true, it misses the larger point. If you have properly registered your copyright, the existence of your copyright is assumed and must be proven to have been improperly awarded if some other entity objects. If you have not registered the copyright you have to prove it is a valid copyright. This tremendously shifts the burden of proof in court. Moreover, given the negligible cost of registering a copyright with the US government ($25 last time I heard), it looks really negligent when the million dollar a year lawyers start arguing that case.

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FAIL

Oracle got it wrong

"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"

Question 4A: "Has Google proven that Sun and/or Oracle engaged in conduct Sun and/or Oracle knew or should have known would reasonably lead Google to believe that it would not need a license to use the structure, sequence, and organization of the copyrighted compilable code?"

Jury Verdict: YES.

So or Oracle's legal counsel is utterly incompetent - and I do really doubt it - or this phrase is just a PR stunt.

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Anonymous Coward

The "overwhelming evidence" is UNDERwhelming

Indeed, the "overwhelming evidence" appears to be an email from a fellow named Lindholm -- a technologist, not a lawyer, BTW -- who was opining that the alternatives to full-up Java (which includes, significantly, the use of the Java name and trademark, and access to the compatibility test suite or "TCK", for which Sun charged fees and had license restrictions) sucked.

The gist of the e-mail was that he thought it technically preferable to go the full-up-with-license-trademark-and-TCK route rather than roll their own implementations. Oracle's representations notwithstanding, this was NOT a qualified legal opinion that a license was needed to implement the functionality in order to avoid copyright infringement.

Hint to the editors: It helps to read the source material rather than relying on tweets from ZDnet.

Aside from the doubtless-unprotectable "SSO" of the specification, all that Google is found guilty of copying is a pretty trivial nine-line function that was written by someone now working for Google, and was contributed by him to Sun. The damages value of those nine lines: $0.00. Nothing "major" here, folks, move along.

There's nothing to the "major charge" unless the judge goes right off the deep end and cuts against established case law to radically expand copyright protection for the structure and organization of software library interfaces, which seems very unlikely.

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Anonymous Coward

Re: The "overwhelming evidence" is UNDERwhelming

And if I'm not mistaken, the email from Lindholm was written after Oracle had already initiated the case against Google, so it doesn't prove anything about what they knew or ought to have known back when they released Andriod.

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Devil

Pandora's box??

A computer language is fundamentally a collection of mathematical functions and therefore should not be patentable, however the actual implementation of a language i.e. a compiler / interpreter, development environment, APIs etc are actual bits of implemented code and are therefore covered by copyright. Documentation is obviously covered by copyright.

If Google had built their own compiler / interpreter, development environment, APIs etc based on Java syntax but with their own code, In my book that would have been OK. If (as it seems indeed happened) they copied the code wholesale from Sun's implementation, they violated the copyright.

Why is it so difficult to sort this out?

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Re: Pandora's box??

If (as it seems indeed happened) they copied the code wholesale from Sun's implementation, they violated the copyright.

But they did not copy the code wholesale. All they copied was the method signatures. They wrote, or took from Apache Harmony, which they where perfectly entitled to do so, the code to implement those functions.

This case boils down to can I take the spec for a language ant write my own interpreter/compiler without needing a license. Oracle say's I can't the rest of the software industry says I can.

Now it's down to a Judge.

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Re: Pandora's box??

Clearly a person or a company should be able to patent and or copyright his work. If someone pays to make a language possible in one sense he has a right to own the language.

What seems wrong is lashing the patent whip after a language is commonly adopted. If we knew in advance that java is a locked in proprietary language, the same as c# and fundamentally different than c++ or php developers might make different choices.

Fundamentally, to me, it means use c# and c++ on windows, c++, php or something else on linux,

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Re: Pandora's box??

@John G Imrie

Thanks for the clarification, my impression from the article was that Google had copied teh source code. If Google only copied the method signatures and implemented their own code underneath, then I think this is OK. The spec is public (at least in the sense that every function is discoverable from documentation and/or trial and error).

"Now it's down to a Judge."... and if he decides in Oracle's favour he's going to upset a whole lot of applecarts

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Re: Pandora's box??

Okay john 112 - who owns English?

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Mushroom

Re: Pandora's box??

Somebody wants to have his cake and eat it...

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Happy

@Anonymous Dutch Coward: No, no

somebody want to have Tea and No Tea at the same time.

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"The jury found Google to be unequivocally guilty of copyright infringement on the major charge"

No. All the jury decided was there was no reason to use jury nullification to ignore the law of the case. Alsup told them to assume API's were copyrightable, Google made no attempt to deny using the APIs. He might as well have left the NO response off the form, it wasn't in play. There only contribution on Q1 was failing to reject Googles actual defence.

'Failing to reject' because that's where the balance of proof now lies when Alsup decides it, he has to find some excuse to reject it, not look for Google to prove it. It's a mess he probably didn't consider and Oracle is screwed whatever happens.

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License

"For its part, Oracle has presented damning and unequivocal evidence that Google knew it needed a licence if it was to build Android on Java"

"Unequivocal" ? Well if you're talking about having Android running on a certified compatible implementation of Java SE (e.g. certified via the JCK), then yes... but it doesn't. That leads to the question of whether there is a requirement to obtain a license for the "necessary IP" the JCP expert group members may have - something the clean room implementation was, in part, meant to avoid. The liability as found in the trial for the copyright side of the implementation has been described by Judge Alsup as essentially zero - the patent part is being debated now - so it's hard to agree with you here.

If you're suggesting that there is "unequivocal evidence that Google knew it needed a licence" to implement Android as they have done - well then, no, that's simply not true.

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Re: License

Google had a licence, an Apache licence for Harmony.

It didn't need, nor want, a licence from Oracle.

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Meh

It seems simple...but it never is

Sun did not have issue, therefore Oracle should be out of luck. But then could they say "from the day we bought Sun, Java is no longer available like it was previously"? This is why companies should not waffle, it is open for this, it is not...then there are no problems in the future.

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Re: It seems simple...but it never is

The doctrines of laches and estoppel stop this sort of trick. Take too long to assert your rights and you risk losing the right to assert them under laches. Estoppel can stop you clawing rights back by withdrawing an offer - this is what 4B is about.

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Re: It seems simple...but it never is

Except that they couldn't really do that either. Sun open sourced most of Java, but kept a small part of it proprietary in an attempt to retain control of what they open sourced. So at least your remark about not waffling holds. If Sun hadn't waffled, we wouldn't be here either. Of course if Oracle had made a clear statement, Google might have worked a bit harder at making sure their path was legally clear and perfectly clean room. And on the third hand, Google ought to have done that even without a clear Oracle statement "out of an abundance of caution in exercising their fiduciary responsibilities to the shareholders." Or at least I believe that is the usual legal mumbo-jumbo associated with such undertakings.

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FAIL

Other shoe...

"The jury found Google to be unequivocally guilty of copyright infringement on the major charge, copying the "overall structure, sequence and organization" of Java for its mobile operating system Android. "

That's a true statement. However, the judge instructed the jury to assume that the APIs were copyrightable. The judge is going to rule on whether or not this is actually the case at a later time.

So, Google is guilty of copying the API, they never denied that. And the EU courts just decided that APIs are not copyrightable. So, the judge has yet to drop that other shoe...whether APIs are copyrightable in the US.

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Coat

There is a mistake in the article

Re: Copyright

"Defeat could potentially allow an extension of copyright into previously undisputed areas, such as programming languages and APIs."

In reality these have ALWAYS been copyright, it's just that the originators have either not put any usage terms or placed the work in the Public domain.

Writing up a Computer language specification or API is no different to creating any other new written work.

Actually Zilog used different mnemonics for the common instructions of Z80 with 8080 and 8085 because indeed the 8080 & 8085 mnemonics are (c) Intel.

The reason for whole existence of BSD, GNU (before Linus wrote his Kernel) was in fact a copyright law war between Bell Labs (AT&T) and the Universities over UNIX ownership. Obviously Google has tried to sidestep Java ownership in a more clackhanded manner than GNU and BSD vs AT&T/Bell Labs.

GNU = Gnu is Not Unix

Mines the one with the Z80 handbook in the pocket

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Happy

"Catastrophic appearance of former Sun CEO Jonathan Schwartz"

Why catastrophic? Or rather, catastrophic for who? Oracle, or Andrew Orlowski?

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Happy

Re: "Catastrophic appearance of former Sun CEO Jonathan Schwartz"

Yeah, it's so "catastrophic" for Google's case that Google's attornies want to call Schwartz again for the patents phase of the case and Oracle's attornies have been trying to get the judge to block further testimony from him.

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Anonymous Coward

Mr. Orlowski, justice is not about who you like and who you dislike

It is about right versus wrong as per the written laws. What Jonathan Schwartz did or did not at that time might be seen as catastrophic but that is the history and those are the facts. As much as Oracle would like, with all their money and lawyers they still can't turn back time. It is one Larry's ego that is the problem here, and he is the one inclined to ruin the whole software universe just to get more money. SCO tried to do the same and failed miserably.

In your opinion Google should cave in just because they can afford to pay and because it is for the software industry's good to settle this matter. You can of course use these arguments to defend any protection racket and make it look socially acceptable but not in a court of justice.

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Re: Mr. Orlowski, justice is not about who you like and who you dislike

Sun put themselves on the auction block to avoid going bankrupt. Regardless of whether you like or dislike either Schwartz or Larry, I'd say that Schwartz's tenure was therefore objectively catastrophic.

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Misleading

At the risk of being called a fanboy, you obviously don't keep up with Groklaw coverage or even looked at the case in question. To steal the summary from Groklaw's latest update:

"Recap of the day: Google won everything but the one issue that the judge has to decide anyway, the API SSO issue. The jury found, as they had been instructed to assume for the purposes of deliberation, that APIs can be copyrighted, the structure, sequence and arrangement of APIs, but that is by no means established. The same question, in a b) section, asked if fair use excused any infringement if found, and the jury couldn't resolve that issue. But the judge has to decide whether or not that is true, that APIs can be protected by copyright. That comes later this month. Meanwhile, Oracle prevailed only on 9 lines of code that Google admitted prior to trial to have included by mistake and then removed from current Android. Oracle's own expert, the judge pointed out in court, valued those 9 lines of code at zero. This is 9 lines out of millions. So that means, if we are looking at damages, that so far Oracle has won nothing. There is no liability. You can't have infringement without considering fair use, Google asserts, and there will be briefing on that. Somebody has to decide that fair use issue. And then the judge has to decide about the API copyrightability issue. If he rules that APIs can't be copyrighted, as the EU Court of Justice just ruled, then fair use is moot. And Oracle takes nothing at all from the copyright phase of this litigation, and this was heralded far and wide by Oracle people as the big ticket item, if you recall."

I don't claim to be a big Groklaw fan, but I do read their coverage to get a balanced reading on the issues at hand, like I did in SCO vs IBM, et al too. Basically, Oracle won nothing. Google stuck to their "fair use" argument (which is fair, because all they used is the API interface - which is DESIGNED to be "copiable" - and the "9 lines" are really worth nothing even if they came with comments that said "HAHAHAHAHAHA! WE STOLE THIS FROM ORACLE!" all over it).

But, strangely, so far BBC, Slashdot and now The Reg are somehow writing articles that claim it's the end of the world for Google and game over and Google were naughty. I can't really see that side myself at all, but I haven't read *EVERY* court transcript there is. There are strange parallels to the SCO vs IBM argument that "this standard .h file which you need to interface with POSIX applications has very similar 'code' (i.e. numbers corresponding to a list of constants) in Linux for the purpose of POSIX applications using it!).

I don't think this will do anything to the industry or Google at all but someone, somewhere, somehow, has managed to turn it into something that will dent Google's share price when, actually, Oracle - and anyone who parrots their claims - is looking extremely dodgy to me.

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Anonymous Coward

Re: Misleading

Groklaw's views always favour Google.

You may want to read the other sources as there are there are other views.

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Re: Misleading

Of course there are other views, for example, when the veredict was announced, Oracle stock went down while Google's went up.

Despite most headlines claiming a mayor win for Oracle.

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Anonymous Coward

Re: Misleading

The facts in the Groklaw report, i.e. that the Jury was instructed to assume API's are copyrightable, and that they couldn't decide if copying the APIs was fair use, are completely factual and correct. The only opinion in the Grolaw article is that is was a victory for Google.

Given that Google didn't deny copying the APIs in the first place, and that they were found not guilty of copying the documentation, and the 9 lines of code they admitted to copying were worth $0 (according to Oracle's own testimony), would you like to explain in what way this is not a victory for Google?

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Re: Misleading

"Groklaw's views always favour Google".

Seems that a Jury agrees with Groklaw, and for that matter with Google. Now how did that happen?

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