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What was Larry Ellison thinking in Java Android lawsuit?

Column Oracle won't win this case against Google
Mon May 21 2012, 14:13

IT SEEMS that Oracle's lawsuit against Google over its use of Java in Android has fallen apart. Although the trial is still ongoing, and the judge has yet to hand down an important copyright ruling while the jury has yet to return its verdicts on patents and damages, if any - it's already apparent that Oracle is unlikely to win billions or even millions of dollars from Google, and it's possible that Oracle might lose entirely.

This lawsuit is rather important, however, if only because it has raised the spectre that software APIs might be found subject to copyright. As many people have already noted, that would have dire consequences for interoperability and software freedom throughout the IT industry. It would put into play programming languages, the interfaces of software stacks and potentially even the internet itself.

All kinds of APIs could suddenly become targets for the extraction of licensing fees and endless litigation. That could effectively destroy the entire software industry and stifle innovation for years, creating a terrible dystopia.

While that depressing vision might not in fact develop if APIs are deemed copyrightable - and it seems unlikely that Judge Alsup will rule that they are, given that US copyright law has always considered them functional elements and not creative expression that's deserving of copyright protection - that's what Oracle has argued for in its lawsuit against Google.

Oracle apparently backed itself into claiming that the Java APIs are copyright-protected because it accused Google of copyright infringement. But the Java language is entirely free to use and Google not only used the Apache Harmony version, it also developed its own Dalvik virtual machine in a clean-room environment to run software written in Java on Android.

Maybe Oracle tossed in copyright infringement to try to frighten Google into a settlement or perhaps it realised that its software patent case was weak. In either case, the charge is not likely to stick. The judge has yet to rule on the copyrightability of software APIs, but it will be surprising if he rules that software APIs can be copyrighted, since their purpose is to enable a vendor's software to be used, thus promoting that eco-system and interoperability.

Oracle doesn't have much to hang its hat on in the patents phase of this lawsuit, either. Of the seven patents that it brought into court, four were invalidated by the US Patent and Trademark Office prior to trial and it waived another one with prejudice in order to get to trial this Spring rather than have to wait until Autumn, and Judge Alsup held it to that.

Thus, the question of whether software APIs are copyrightable aside, Oracle has only two thin software patents left, which Google's Dalvik virtual machine arguably does not infringe. Whether it does, of course, is for the jury to decide, and the jury is still out on that.

Even if Oracle should prevail on one or both of the two patents still at issue, it will still face a daunting burden to claim any significant damages. It can claim either nominal statutory damages of $50,000 up to $150,000 if the jury finds willful infringement, per infringement, or actual damages plus infringer's profits, if it can establish that there is some direct causal nexus between Google's alleged infringement(s) and its profits.

But Google doesn't charge its smartphone OEM partners for Android and so doesn't profit from it directly. Oracle will have to argue that Google profits indirectly, through advertising, but in that case making the causal connection will be extremely problematic.

This is what I mean by saying that Oracle's case against Google has fallen apart. What was Oracle thinking when it decided to sue Google over Android? Didn't Oracle perform any due diligence on this lawsuit before it filed its complaint? It must have known that its case fell somewhere between arguably weak and a very long shot.

What was Larry Ellison thinking, anyway? I have a theory on this, and I will explain it.

Ellison apparently is loyal to his friends, among whom are (or were) founders and CEOs of other Silicon Valley companies in the information technology industry. One of those friends was Mark Hurd, the former CEO of HP until he was abruptly fired by HP for allegedly hitting on a female contractor. (Although the official reason HP fired Hurd was said to have been record keeping discrepancies in his expenses, the allegation of sexual harassment was reportedly the real reason.)

Ellison not only immediately hired Hurd as Oracle co-president, but Oracle soon afterwards decided to drop support for HP's Itanium servers. Perhaps that was not a mere coincidence, of course.

Now, Steve Jobs happened to be another one of Ellison's friends. Jobs was absolutely incensed when Google developed Android smartphones and began to challenge Apple's Iphone franchise. When Oracle filed suit against Google over its use of Java in Android back in late 2010, Jobs was still alive. It looks a lot like Ellison sued Google for Steve Jobs.

At the time James Gosling, the father of Java blogged, "This skirmish isn't much about patents or principles or programming languages. The suit is far more about ego, money and power."

Gosling was perhaps more right than he suspected. It seems that Larry Ellison can be a menace when he acts out of loyalty to his friends. He ought to have some self-discipline and practice a little more restraint, before he harms more than just a few large IT companies, including his own. µ


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