GonzoMCCThe corporate soap opera that is the Oracle versus Google API legal battle took yet another surprising twist this week when the White House officially came down in support of Oracle. This Tuesday, the US Justice Department urged the Supreme Court not to hear Google’s side of the case, which, in case you’ve been encased in a carbonite refrigerator for the past three years, centres on Google’s use of public Java APIs in its Android operating system.

Oracle stated to the Register that they are elated at the turn of events, commenting that, “The Solicitor General’s brief agrees with the Federal Circuit’s decision and affirms the importance of copyright protection as an incentive for software innovation.”

On the flip side, Google told Reuters: “We appreciate the solicitor general’s careful review of this issue. However, we’re disappointed with these conclusions.” We’ll find out next month if the US Supreme Court will take the decision to hear their case. In the meantime, here’s a potted synopsis of the major happenings to date.

I’ve lost track of what’s going on. Get me up to speed

Like a “thief in the night” or a “pirate on the high seas,” Oracle claim the Chocolate Factory pillaged their code and commercialised it under the Android banner. Initially, the courts found in favour of Google in 2012, noting that there was no copyright under the Java APIs – however this decision was later overturned, and it was determined that APIs are in face copyrightable.

It also ties into the complicated nature of Oracle’s particular implementation of Java. Whilst there are open source JDK implementations, and  Oracle’s is “close” to open source, there are some closed source third party components within the code. By and large though, as long as your implementation of Java passes validation with Oracle’s test suite, you’re free to do what you want. Whilst Dalvik certainly is Java-esque, there are key differences between DVM and JVM bytecode which mean it doesn’t mean all this criteria.

At the time of the initial verdict, the judge in the case commented; “When there is only one way to express an idea or function, then everyone is free to do so and no one can monopolise that expression.” Google maintains that had the pioneer software companies behaved like Oracle, it “could have blocked vast amounts of technological development.”

The decision was then overturned in May 2014 following an appeal by Oracle, with the US Appeals Court of the Federal Circuit in Washington stating that it had no choice but to uphold software copyright “until either the Supreme Court or Congress tells us otherwise.”

This week’s judgement follows a memo that was sent to the Obama administration back in January inviting US Solicitor General Donald Verrilli, Jr to “express the views of the United States.” Stay tuned for the next exasperating instalment…

Fair Use

Martijn Verburg interviewed lawyer for an Ben Sipes about the issue at Devoxx UK 2014. From Sipe’s legal perspective, there is a big difference between developers developing their client application which uses the Java APIs, and Google taking 37 of Oracle’s Java APIs and using them for commercial purposes in their Android platform.

As Verberg noted, a lot of the debate boils down to the concept of “fair use,” which is a commonly cited term in the US courts. This has yet to be decided, but Google’s argument in this context is that their use is totally fair. However, given that other companies have negotiated licenses with Oracle to use these APIs (including Google, back in the day), this defence is tenuous. With fair use open to interpretation, this is a trial that’s of interest to a diverse set of parties.

With vast and fathomless reserves of capital, Google may get away without paying penalties in this case. But for those humble little startups that could be hauled in front of judges should the floodgates open to sue developers for copying common bits of code it could be another matter entirely.

What are the big implications?

The reason that this continues to generate buzz is that this is really the first time a legal judgement has been applied stating that APIs are actually copyrightable. As Verburg noted, this could have a lot of implications for languages like JRuby, which is implementing a Java API, or the Mono implementation, which uses a .Net API. Understandably, there is a lot of FUD swirling around this case. It could also make a lot of programmers vulnerable to IP related litigation.

Moreover, should Oracle eventually come out on top, Google is going to have to do some long hard thinking about its Java-alike Android SDK. Hypothetically, should it come to it, it does have Go waiting in the wings, fully developed in-house and free of any pesky legal issues. But it’s hard to see how Google would go about making a Java-free version of Android at this point in time with the slew of backward compatibility issues that would ensue.

What the Dickens?

The case has instigated a high-profile clash of the clans, with coders, politicians and businesses fumbling to reconcile copyright principles as understood by the US courts with the mores of modern software development. Or, as one Redditor put it, it’s about a, “bunch of rich assholes arguing about things they don’t understand and seriously threatening the way we do our jobs. idiots.”

U.S. District Judge William Alsup (who initially ruled in favour of Google) went as far as learning Java to fully grasp the fundamentals of the case. Fortune reports that, as the time, the APIs were found to be functional, and landed “on the wrong side of copyright law’s “idea/expression dichotomy” and merger doctrine – these are rules that prevents copyright law from becoming too broad, and covering everyday things like menus and simple instructions.”

The appeals court took a less programmatic stance, and in a decision that swayed towards Oracle, decided that Java as a whole work was indeed copyrightable, much as the works of Charles Dickens would be.

In some respects, given that ten largest software companies according to Wikipedia are American, it’s not surprising that the White House would come down on the side of Oracle. Just think of all that money that could be lost should someone make a decision that draws a clear circle around the rights of developers to use and innovate on the open source code that propelled all those corporate giants to the top of the heap in the first place.

 

 

 

Oracle Versus Google: Four Things to Consider

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