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

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 …

  1. Leeroy Bronze badge

    I can drive

    'It was why Android hit the ground running – developers knew the interfaces, they knew the libraries, they could build apps for it straight away.'

    A bit like driving a car then. It's an API they utilised, right or wrong. It seems like oracle are trying to make them put the brake pedal on the steering wheel.

    1. sabroni Silver badge

      Re: It seems like oracle are trying to make them put the brake pedal on the steering wheel.

      No it doesn't. Oracle don't want Google to change Android, they want them to pay for copying Java interfaces.

      1. Anonymous Coward
        Anonymous Coward

        Re: It seems like oracle are trying to make them put the brake pedal on the steering wheel.

        This is much like Ford suing Tesla because they too use a steering wheel to direct the car. Oracle, and Sun before they were assimilated, had many chances to monetize mobile Java (SavaJe, etc.) but always shied away from actually working hand-in-hand with smartphone vendors to make an integrated environment, instead wanting to license Java as only an app interface on multiple disparate device OSs complete with fragmentation. Anyone shocked that Android uses the same calling conventions as Java is simply missing the point.

  2. ma1010 Silver badge
    Childcatcher

    Here we go again

    I work in the legal field. And I know we're much more civilized (mostly, anyhow) than folks were in the Middle Ages.

    Still, when I see these lawsuits that rumble around for years, back and forth, like this one or the SCO/Unix crap, I sort of wonder if the Medieval folks didn't have some better ideas than we do. For example, trial by combat. Each side picks a champion, and they fight it out. For those more squeamish (or civilized), keep in mind that we don't need a fight to the death. The champions could be boxers. Or even go completely non-violent and play Scrabble or something to settle the issue. Winner take all.

    Such a system probably wouldn't be a lot less "just" than what courts mete out in these kinids of lawsuits, and it sure would be a lot cheaper and quicker than these zombie-like just-won't-ever-die lawsuits.

    1. a_yank_lurker Silver badge

      Re: Here we go again

      Another problem with the legal beagles is most of them are not even computer literate unless being able to turn one on and off counts. To ask them to understand technical issues is jousting with a windmill.

      1. td97402

        Re: Here we go again

        Actually, Alsup the trial judge does have some coding experience:

        "Alsup was the presiding judge over Oracle America, Inc. v. Google, Inc., where he notably has been able to comment on issues relating to coding and programming languages, specifically Java. He learned the Java programming language solely for the purpose of being able to understand the case more clearly."

        Aside from a degree in mathematics, and a doctorate of law, he has a couple of other post-grad degrees to boot. Seems like a pretty sharp cookie to me.

    2. Phil O'Sophical Silver badge

      Re: Here we go again

      For example, trial by combat. Each side picks a champion, and they fight it out.

      Could make the next America's Cup interesting. Larry versus Eric, winner gets Java...

    3. Anonymous Coward
      Anonymous Coward

      Re: Here we go again

      I'm inclined to agree with Google and not Oracle... what are we talking about?

  3. Anonymous Coward
    Anonymous Coward

    Yuknow, if Google end up losing this it's going to cost them a huge amount of money, probably. Just getting a license all those years ago may end up looking like the cheaper option.

    So why didn't the board succeed in concluding a license deal? Were they basking in a feeling of invincibility, and reckoned they'd get away with it? In retrospect that may end up costing the company dearly, which will make the shareholders grumpy, and further encourage the shareholders to sue (like some already are over their non-quantum entanglement with the EU).

    1. Doctor Syntax Silver badge

      "So why didn't the board succeed in concluding a license deal?"

      If I remember from long ago & far away, Oracle were only prepared to license ME rather than the full desktop Java. Maybe that's why they didn't conclude a deal.

      1. bazza Silver badge

        "If I remember from long ago & far away, Oracle were only prepared to license ME rather than the full desktop Java. Maybe that's why they didn't conclude a deal."

        Hmmm, interesting. Since then Google don't seem to have been afraid of inventing languages, which would have solved that problem.

        OpenJDK first came into being in 8th May 2007, more or less, and Android first hit the streets a few months later. I don't know when Google would have been speaking to Oracle, but Sun announced the open sourcing of HotSpot on the 25 October 2006, and it was released on the 13th November 2006. So it was certainly very clear the direction in which Java was headed, and it was always inevitable (the benefit of hindsight) that Android would have to join in as they are doing now. Switching to OpenJDK would have delayed Android a little bit, but would have saved an awful lot of grief now.

        I remember back then there was also a lot of discussion about native vs managed runtimes. Apple went with native, and made that work very well indeed. BlackBerry with BB10 also went with native and, despite being late to the party, did eventually succeed in making the OS environment itself work well. Nowadays with languages like Rust from Mozilla available as well, one would have to conclude that there's no real debate, native can be as easy and as "safe" as a managed language like Java, and is probably the way to go on battery powered devices.

    2. Anonymous Coward
      Anonymous Coward

      Because you're reading a very distorted history of the case. It wasn't as simple as paying for a licence and then be free to carry on developing Android, the licence would have crippled Android and made it unusable. As there was no Java compatibility required and no intention to call it Java, there was also no licence required.

    3. td97402

      Remember this is Google

      They were the original "disruptive" force on the net, remember? The rules don't actually apply to "disruptive" technology, remember? I'm sure that was a bit of their thinking anyway. After all, their news page scrapes headlines and the first line or two from hundred of news web sites worldwide without paying for the content. Fair use they claim and besides they're providing traffic to the sites. YouTube was built on copyrighted content and it is still found there everyday. Google might be paying for some it but still they're providing lots of exposure to the creators, so whatevs on the rest. They read all of my email to better serve me...ads I guess, all over the Internet. They own the Internet. Something like 9 out of 10 people find the web site they want by "Googling" it, remember?

  4. The Nazz Silver badge

    re ma1010 "Winner takes all"

    How about Winners take all?

    With Android there are 100's of millions of winners.

    Even the one loser, Oracle, can well afford to do so.

    Much better for a civilised society that way, do you not think?

    On a topical note, same with the RIO olympics. Sure there have been a few hundred gold medal winners, some nicely positioned IOC officials and ambassadorial VP's who have done very well for themselves but there are also billions of losers who will now forego better housing, education and health care to pay for it.

    My £0.02 worth says it isn't leading us to a better or even more civilised society. On the contrary.

    1. sabroni Silver badge

      Re: re ma1010 "Winner takes all"

      Of course! Google did it for our own good! How kind of them.

      1. Anonymous Coward
        Anonymous Coward

        Re: re ma1010 "Winner takes all"

        Yeah, well be glad you are not paying $99.99 for the next version of your smartphone's OS. I never liked this partially open stuff. Java is open, sort of... except for enterprises. You didn't see Google have a hissy fit when Amazon took all of the Android code they wrote and used it to compete with them, or try to compete with them. If you open it up, there shouldn't be all kinds of claw backs and special clauses.

        1. Anonymous Coward
          Anonymous Coward

          Re: re ma1010 "Winner takes all"

          The ultimate issue here is that Sun didn't know what they wanted to do with Java... they wanted it to be open and crazy popular, but they also wanted to make money on it. They never really figured it out. IBM figured it out with WebSphere. It is odd that Sun never came out with their version of WebSphere, but, they could argue, even better because it is from the steward of Java. I don't understand what they were trying to do.

  5. TVU Silver badge

    Here we go again II

    This is a legal bunfight between Bad (Google) and Worse (Oracle) for there are no good guys in this particular courtroom battle.

    That said, I really want to see Oracle lose this one on two counts. The first is the alarming API precedent that would be set if Oracle won and the second reason is that, just like the SCO Group, I really detest companies that try to get huge revenue streams from litigation and not through innovation (I regard them as corporate leeches).

    1. Anonymous Coward
      Anonymous Coward

      Re: Here we go again II

      True, it would be one thing if Sun had their own mobile OS or something that was in some way competitive with Google, but it just seems like they set up some confusing open source standards, probably design by committee, and now Oracle is coming in and trying to get an absurd amount of cash out of Google... They are going after half of the profit Google has made (via ads) from Android.... which is kind of nonsense too because if there was no Android, people would likely have been making most of those Google searches on iPhones or whatever the smartphone OS of the day would have been. It isn't like people started using Google services because of Android.

  6. Anonymous Coward
    Anonymous Coward

    I have feet

    There are interesting arguments either way, but at some point I get jack of it all and realise that Oracle couldn't give a toss about me, the customer. I have feet and have made decisions that cost Oracle real money in revenue that would have otherwise gone their way. If they continue to stop innovation and inhibiting me from having access to useful technology from what I perceive to be simply greed based motives, I'll continue to move my projects to other vendors.

    1. Anonymous Coward
      Anonymous Coward

      Re: I have feet

      Can we not upvote those who can't string a sentence together please? It only encourages them to rant more....

    2. Anonymous Coward
      Anonymous Coward

      Oracle turned evil after they lost the ITV teletext contract...

      "[I] realise that Oracle couldn't give a toss about me, the customer."

      You've only *just* realised this?!!

      What gave it away? Was it the fact that as soon as Oracle have *any* customer locked in and dependent on their infrastructure they'll exploit this to bleed them dry, hold them to ransom and coerce them into paying for overpriced upgrades, support and cloud shite they don't need under the threat of finding a negligible "breach" of the (incredibly complex) usage agreement during auditing- something that in practice almost no company would be able to avoid- which would in turn entitle them to withdraw their right to use Oracle's software?

      I've speculated in the past as to whether Oracle's business should be viewed primarily as being that of a database/infrastructure vendor or whether the software is merely a macguffin in what is effectively an (entirely legal) form of extortion.

  7. Mikel

    I remember this analysis from the SCO case.

    There were never ending pundits to say the bad guy was going to win. That didn't work out.

    1. 's water music Silver badge

      Re: I remember this analysis from the SCO case.

      There were never ending pundits to say the bad guy was going to win. That didn't work out.M

      Well the options here are:

      Lawyers

      Oracle

      Google

      So bad guys winning seems like a safe prediction this time around

      1. Christopher E. Stith

        Re: I remember this analysis from the SCO case.

        Let me fix that for you.

        Well the options here are:

        Lawyers

  8. MacroRodent Silver badge

    I don't get it

    Why would the use of Android on something else than mobiles change the fair use argument?

    1. PassiveSmoking

      Re: I don't get it

      It wouldn't. It's called "clutching at straws".

      1. Anonymous Coward
        Anonymous Coward

        Re: I don't get it

        They have lost twice... and have been working on suing Google for something for six years. Now they trying to get yet another trial based on the SDK version. I'd call it clutching.

    2. sabroni Silver badge

      Re: I don't get it

      Google claimed Android was only a mobile OS and that was one of the reasons they won the previous case. It's in the article:

      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.

      1. Roland6 Silver badge

        Re: I don't get it

        However, Oracle are trying to exploit the 'mobile device'/smartphone is somehow different from a traditional desktop/laptop fiction that we have seen in lots of software patents and thus trying to feign surprise when this distinction is shown to be false, even though the case has been all about Googles use of Java SE aka 'desktop' Java on smartphones and not about their use of Java ME.

        This feigned shock horror is even more questionable given both the history of third-parties putting Android on 'desktop' systems and press writings that predate the Oracle-Google court case...

      2. xylifyx

        Re: I don't get it

        Hasn't the situation changed because Chrome OS will use the OpenJDK based runtime. Android will then have a Java license, the open source one. GNU General Public License, version 2 with the Classpath Exception.

        If smartphone makers needs to close source the Java libraries, they will need a license from Oracle to do so. Or they could just GPL+Classpath the changes.

  9. Steve Davies 3 Silver badge
    Coat

    If Oracle win... what then?

    With the majority of smartphones in the world running Android, will the owners see an Oracle Victory as an attack on each and everyone of them?

    What about those Execs who are about to sign an Oracle Purchase Order? Will they say "nope, not gonna do it".

    It will be interesting to see what happens if Oracle prevail.

    It might be that they win in court but lose in the court of public opinion.

    Could this win actually mean the end of Oracle as we know it?

    Is this Larry's grand exit plan?

    Mines the one with a front row ticket in the pocket.

    1. Andy E
      Unhappy

      Re: If Oracle win... what then?

      I have to admit I'm struggling to understand what - other than a cash payout - Oracle are hoping to achieve here. Does Oracle see Android as a threat to Java? Are they trying to protect thier Java related revenue stream? Or are they looking for a cash injection to hide poor financial results?

      I'm confused by the whole thing to be honest. It would seem to be in everyones interest for Google and Oracle to reach a settlement even if the terms of the settlement were not disclosed. Of course there are at least two teams of lawyers who are doing very well out of this who might not agree with me.

      1. CarbonLifeForm

        Re: If Oracle win... what then?

        It's in their eventual interest to reach a settlement.

        But I expect Google wants to pay much much much less than Oracle is going to want them to pay.

        If Oracle said - hey, how about a dollar per line of code you copied - this would be over in a second.

        But I expect it's more like "you've made X dollars off the Android platform over the years, and would have likely been unable to do so without our stolen IP. Hence, how about you pay us X % of the revenue accruing from worldwide sale of Android devices?" And out come the man-eating lawyers.

        I'm sure the figures involved are enormous.

  10. heyrick Silver badge

    Sorry, I got stuck at the "retrospective licence" part.

  11. Doctor Syntax Silver badge

    Why Google's luck is about to run out

    Pro tip: never try to predict what a court is going to decide.

    1. timrichardson

      Re: Why Google's luck is about to run out

      All the appeals court can do is ask for another jury trial on fair use. I suspect the court will be reluctant. Google did disclose the previous technology for porting Android apps to Chrome OS, so it is not news to Oracle that Google planned to port Android apps to Chrome OS: to me, this sounds more like a change of technology, but the destination is the same. Chrome OS has a tiny share of desktop OS anyway, which is probably why Oracle ignored the previous implementation. The new implementation is still in development so it was obviously a very immature technology at the time of the trial: what could anyone have shown the jury anyway? I would be surprised if this one argument is enough to cause a jury retrial.

      Originally we suspected that Oracle was pursuing this to get control over Android, but Google has now moved to OpenJDK and is in full compliance with the open source requirements, so the only real outcome is a settlement, which will be delayed for years in the courts even if Oracle wins something.

  12. Sam Adams the Dog

    Mr. Orlowski seems to misunderstand fair use

    IANAL, but AFAIK, neither is Mr. Orlowski. I thought I'd look a few things up -- mostly Wikipedia, and therefore, not the word of God, but relevant just the same, I believe.

    1. Orlowski states "Fair use is not a right, it's an affirmative defense." According to the Wikipedia Fair Use page, "the United States Court of Appeals for the Ninth Circuit concluded that fair use was not merely a defense to an infringement claim, but was an expressly authorized right, and an exception to the exclusive rights granted to the author of a creative work by copyright law." The parties agreed that ninth-circuit law applies, so this interpretation applies. (https://www.eff.org/files/2014/11/10/oracle_v_google_13-1021.opinion.5-7-2014.1.pdf, p.15.)

    2. Back to Wikipedia: "The third factor assesses the amount and substantiality of the copyrighted work that has been used. In general, the less that is used in relation to the whole, the more likely the use will be considered fair. ¶Using most or all of a work does not bar a finding of fair use. It simply makes the third factor less favorable to the defendant.... the 'substantiality' of the portion used is considered in addition to the amount used." I don't know what fraction of the source code the 11K copied lines subsumes; not much, I would guess, though this is not the only consideration, as noted. But if all it does is call other code which Google themselves wrote, as we would expect in API interface code, the courts would likely consider this insubstantial, and rule in Google's favor. I do recall a lawyer's opinion being relayed to me to the effect that if the code is so simple that there is basically only one simple way it makes sense to do write it, copying it would be fair use. Admittedly, the example in question was something as trivial as "int add(int x, int y) { return x +y; }". But if the interface code just contained a little logic that terminated in calling functions (re)written by Google, presumably the same rule would applyl.

    1. Sirius Lee

      Re: Mr. Orlowski seems to misunderstand fair use

      I agree. This was a jury trial about fair use. As Alsup commented during the hearing to hear Oracle's motion, is there anything better than a jury to decide something as subjective?

      He gave Oracle some hope agreeing that if it were him he would have disclosed ChomeOS. But its not him. It's the case argued by the Oracle legal team in front of a jury. It will be a brave appellate court panel that will overturn a jury verdict on fair use because it will generate a whole slate of problems.that will rival the problems facing anyone who would choose to open the jar given to Pandora.

    2. CooperTubmaker

      Re: Mr. Orlowski seems to misunderstand fair use

      This article seems like it was written by Oracle's PR department. It's lucky Sun was 100% made from scratch and not derived from any other sources like C or anything.

      1. Anonymous Coward
        Anonymous Coward

        Re. Orlowski seems to misunderstand fair use

        Remember WABI? Sun used published (and some unpublished) Windows APIs to create an intercept engine that translated those to SunOS calls. Wine later did this as well. Oracle acting just a little holier-than-thou in their legal dealings - with little ground to stand on.

    3. energystar
      Paris Hilton

      Against full Android code lines...

      At the time of JAVA incorporation?

    4. diodesign (Written by Reg staff) Silver badge

      Re: Mr. Orlowski seems to misunderstand fair use

      "The Supreme Court’s decision in Campbell v. Acuff-Rose Music, Inc., solidified the treatment of fair use as an affirmative defense. However, treating fair use as an affirmative defense shifts the burden to the defendant while in most fair use cases plaintiffs are able to easily prove a prima facie case of infringement."

      C.

  13. Anonymous Coward
    Anonymous Coward

    Stupid use of finance

    WTF can't Oracle stop this insane legal nonsense and instead divert these significant wasted legal costs to staff making Java, JEE etc. better!

    1. Anonymous Coward
      Anonymous Coward

      Re: Stupid use of finance

      Larry & Co have obviously decided lawyers are more cost-effective than decent engineers.

  14. PassiveSmoking

    My impression is that it's just Oracle's lawyers bitching about failing to outlaw what's been common practice for decades (if you're not allowed to reverse engineer an API then the PC clone would never have happened and the world of computing would look very different, and probably be way more expensive than it is now), and they're clutching at straws.

    The fact is that Google has done zero harm to Oracle. If anything they've revived their flagging fortunes regarding Java. It was already sinking into irrelevance by the time Android rolled around, and when it did suddenly there was demand for people with Java know-how again.

    Fair use is fair. Deal with it.

    1. John Sturdy
      Boffin

      Yes, I think it's likely Android has been propping Java up for some time now. Unfortunately.

      I guess it made sense at the time (in terms of which languages it was easy to get application programmers for) but I wish they'd picked a decent language instead, or just defined the interfaces and told people to call them from whatever they liked.

      But back then, SWIG wasn't as good as it is now, and Go hadn't been invented.

  15. RealityisntReal

    The article claims 11,000 lines of code were copied. I am pretty sure Java has significantly more than that in total - probably at least a million. It seems to me that Google meets the "Is a reasonable amount of the copyrighted work being used, or is it a substantial amount?" test mentioned in the article for fair use. Evidently at least the second jury felt like that.

    The authors previous articles concerning copyright have shown a distinct bias against the concept of fair use. It is no surprise that he dismisses it in this one also.

    1. PassiveSmoking

      First, 11K lines of actual code is tiny. 11 classes of 1000 lines each is pretty typical for a small blogging system or simple time logger or some such.

      Second, this isn't even executable code. It's 11K of interfaces! In java an interface is like a dummy class (oversimplification, I know, but it will do) that contains nothing more than method signatures (What the method is called, what argument(s) it takes, what it returns and what exception(s) it can throw). An actual class has to implement the methods described in the interface. All it does is provide interoperability, because I don't have to care about the specifics of a given class other than knowing it implements a given interface. How it implements that interface is not relevant for me to consume the class's services.

      Basically Oracle are trying to take Google to the cleaners for using a language feature designed to encourage interoperability to interoperate with their language.

  16. jillesvangurp

    The only thing that is certain here is that no single court decision will end this. We're looking at endless litigation here. Both parties have a lot of stamina so none of this will have any real consequences any time soon. The real question is when and if they will settle. Oracle clearly still believes it is worth the trouble to continue this and Google at this point is probably just going to let this escalate on principle if only to discourage others from doing something similar (e.g. Microsoft). Both have some pretty good lawyer teams on this so I'm sure there's a case to be made for both strategies. However, Oracle is the one that is going to feel the heat from share holders if the legal bills continue to pile up with nothing to show. So time is not on their side.

    Meanwhile none of this will have any impact on Google's roadmap or what remains of Oracle's (or rather Sun's) once big mobile Java strategy. Google has already made the necessary moves to engineer around this by removing its dependence on the former Apache Harmony (the copyright of which is what this court case is about). This was done mostly non legal reasons: it's been retired years ago. Google simply dropped in the GPL 2 openjdk code. Problem solved.

    So any court case outcome will be about compensation related to supposed damages with no longer shipping, obsolete versions of Android. So, forget about Oracle succeeding in e.g. blocking products currently in the market, or forcing some sort of licensing deal where Google pays them for whatever. Not going to happen.

  17. jb99

    All I get from this

    All I get from this is "use java and we'll take you to court".

    So I won't be using java.

    I might be wrong. I don't care.

  18. Anonymous Coward
    Anonymous Coward

    mega merger needed

    Isn't it long past time for Oracle, IBM, and Microsoft to merge into one big company, and then immediately shut down?

  19. zvonr

    Google should have got a license.

    APIs are not a trivial thing, it takes a lot of time and effort to create an API, and the creator should be able to license them as they want. Everybody should respect that...

    People keep on mentioning the interoperability argument... that if google looses somehow we set a "dangerous" precedent, which is complete nonsense...

    You can always get to the negotiating table and get a deal done that is beneficial to all parties...

    You can get a license from Oracle, There were and are 3rd party JVM implementations, AMD licenses the X86 "api", Intel licenses the AMD64 "api"...

    I am not sure how google interpret: "Don't be evil" but stealing the work done by others is pretty evil to me...

    1. heyrick Silver badge

      Re: Google should have got a license.

      Allow me to quote an important part of the article:

      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.

      I read this as the original owner of Java saying "here, use it". Then Oracle came along and noticed this and freaked.

      Or to put this into context, how do you think the world would react if the FSF changed the GPL to state that you assign all rights in GPL licenced code to the FSF and you were required to make a yearly $10 donation to them? You'd stick with the version of the licence that doesn't state such things. It's the same deal here. Google and Sun obviously came to some sort of arrangement (maybe Sun understood that use in Android would be beneficial to the flagging Java ecology?). A new owner doesn't automatically invalidate earlier agreements.

    2. PassiveSmoking

      Re: Google should have got a license.

      Are you a developer?

  20. SeanC4S

    Java is already out of date with 31 bit array addressing. It's the new Cobol.

    There is a trend to combine simple high level scripting languages with simple low level access. I guess Terra would be the best example, also LuaJIT, Cython etc. That is definitely the better way.

  21. Walter Bishop Silver badge
    Linux

    2006: Sun begins releasing Java under the GPL

    'The Free Software Foundation (FSF) welcomed the public commitment from Sun Microsystems to distribute its proprietary Java platform under the GNU General Public License (GPL) [1] — the world's most widely used free software license.'

  22. Walter Bishop Silver badge
    Facepalm

    Google copied Sun's Java core libraries

    "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"

    Considering Sun released the entire Java JDK under the GPLv2+classpath exception, it's very disingenuous of Oracle to subsequently claim Google illegally copied Suns Java into OpenJDK?

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