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Oracle v. Google at the Supreme Court: Industry Watchers Weigh In

Google has petitioned the U.S. Supreme Court to hear its argument against Oracle's now four-year-old claim that 37 Java APIs used in the Android OS violated copyright (details in this report). It's an important question, and in my opinion, one worthy of the high court.

Google's decision wasn't a surprise to Forrester analyst John R. Rymer, who told me he expected the search engine giant to take its case all the way to the Supreme Court if it received an unfavorable ruling at the appellate level. He added that he has noticed "zero impact" on the Java community over the past four years from this "vendor drama."

"If Google wins, the status quo prevails; if Oracle wins, then Google will either have to strip out Oracle-patented IP or pay Oracle for the right to use its IP," he said. "In the latter case, Google will 'own a piece of Android,' a nice position given that Java ME is a nonstarter among smartphone and tablet OSs."

Martijn Verburg, CEO of jClarity, a startup focused on automating optimization for Java and JVM-related technologies, and co-leader of the London Java Users' Group, is also sanguine about the effect of the rulings on the Java community so far.

"I don't think the current ruling was all that bad for the industry," he said in an e-mail. "Although there's a fair amount of FUD about the decision, you can still copy or use appropriately OSS-licensed APIs, which constitute the vast majority of the Java ecosystem, and there's still a strong argument that most folks will be okay under the Fair Use clause (for example, Mono) or the lesser-known 'It's such a small portion of the API, which is okay as well' clause, which would cover a lot of individual developers who are just copying a handful of APIs here and there."

Verburg also believes that there's a general consensus in the Java community that Oracle should come out on top in this dispute. "Java developers in general are (grudgingly in some cases) pretty happy with the way Oracle is treating Java," he said, "even if they've mistreated other OSS communities that they took over from Sun."

The last time I talked with Wayne Citrin, CTO of NetBridge, about this lawsuit, he argued that it would be best for Java -- and Oracle -- if Google wins. He hasn't changed his opinion. "The more people with the opportunity to use Java, in more contexts, can only be good for Java (and, by extension, good for Oracle)," he said. "I can see Oracle's interest in protecting Java from undesirable branching, but I really don't see that as a problem here. If Oracle wins, I see something of the opposite happening. Restricting the breadth of use of Java can't be good for the Java community (and, by extension, for Oracle)."

Citrin added that, although the stakes are highest for the Android community in this case, the wider Java community isn't likely to feel much of an impact, whatever the decision. He said he hasn't noticed any negative effects from the rulings so far. "Maybe that's because most of the Java runtimes that are being used either come from Oracle or come from companies who have gotten their ducks in a row and are okay with Oracle," he said.

A final ruling in Oracle's favor would trouble Miko Matsumura. Now vice president of Developer Relations at Hazelcast, Matsumura has been watching the Java space since he served as chief Java evangelist at Sun Microsystems in the late '90s. He agrees that there might be value in protecting some APIs with explicit licensing terms, but he sees merit in Google's argument about stifled innovation.

"The software industry today has been a thriving wellspring of innovation and competition based on [Bill Gates'] 'embrace and extend' and [Sun CEO Scott McNealy's] 'open interfaces, compete on implementation.' The inherent danger in siding with Oracle on this is that it creates a huge liability on existing software that would stifle creativity and innovation and shift billions of dollars away from software engineering towards software IP litigation."

IDC analyst Al Hilwa believes that copyright protection of 95 years (which was established by Congress for corporate authorship in 1998) is far too long. But he's not so sure about the argument that copyrights stifle technology innovation. "I think there is always a tension between unadorned innovation and breaking the rules," he said, "and we are always navigating this tension. If we could share everything without patents or copyrights, no doubt things would move faster, but there has to be a balance, and the sheer velocity of innovation is not always an absolute value held by everyone. It is up to the courts to navigate this balance."

Given the times we live in, the long "vendor drama" has seemed a strange affair to Dana Gardner, principal analyst at Interarbor Solutions.

"At a time when there's clamor for the removal, or at least reform, of patents on software, it's ironic and archaic that copyright is being invoked to keep open source software code under long-term commercial control," Gardner said. "Seeing as Java was touted as 'open source' under Sun's last gasps, and Oracle could not thwart Google's clean-room implementation of a Java runtime for Android -- it's apparent true goal -- copyright always seemed like a Hail Mary affair in the Java case."

Gardner believes the Supreme Court should hear this case, because of the opportunity it presents to settle some important questions. "The U.S. Supreme Court could now use this case to make some bold and needed determinations about real-world software use, and modernize and bring clarity to its common sense rights and extension," he said. "That would bring long-needed improvement to the software intellectual property morass, and could quickly jump-start software innovation and remove the cloud of uncertainty over software ownership and rights in general."

As I said, I believe that the question of whether foundational code can be copyrighted is worthy of consideration by the high court -- or rather, a high court. I'm not so sure about this one. Our judiciary, in general, isn't tech savvy enough. The striking exception of U.S. District Judge William Alsup, who felt that it was so important to understand the technologies involved in the Oracle v. Google case that he actually learned to write Java, makes his peers look like Luddites. And most of the members of our current high court are decades behind the times. According to the AP, a relatively tech-savvy Supreme Court Justice Elena Kagan has said her fellow justices don't even use e-mail.


Posted by John K. Waters on October 17, 2014