A San Francisco jury has returned verdicts on three of four key questions over copyright issues in the high-profile courtroom trial between Oracle and Google. Neither company won a decisive victory, and the case has now moved on to a separate phase concerning patent claims, rather than copyright.
Aren’t juries supposed to settle things? So how can a jury return a verdict and make the litigation between the two companies even murkier? Does it even matter what the jury thinks, since the judge in the case seems to have reserved the key question for himself — and himself alone? And what does it mean for the future of Android?
Structure of the trial
Google and Oracle’s legal dispute over whether Google needed a license to reverse engineer Sun’s Java technology for Android goes back more than two years, and negotiations and pre-trial proceedings have resulted in a very unusual trial structure.
Judge William Alsup divided the trial into three phases. The first phase — which was just completed — concerned only copyright issues between Google and Oracle. The second phrase (now underway) concerns patent infringement claims Oracle is making against Google, and the third phrase (if needed) will focus on assessing damage claims resulting from the first two parts.
Often, technology companies prefer to make intellectual property disputes solely to a judge, rather than before a jury: the issues are often complicated and highly technical, and lawyers generally feel they have a better chance of explaining their case to a highly-educated judge than to a jury of everyday citizens. However, that’s a tendency, not a rule, and in this instance Oracle pushed for a jury trial, since juries have a tendency to rule in favor of folks who own patents and copyrights. Alsup granted Oracle the jury trial, but in an unusual move empaneled a jury of 12 members — a number more common for a criminal trial than a civil proceeding — and required the jury reach unanimous decisions.
However, not all issues in the trial will actually go to the jury: some will be decided by Alsup himself, in some cases with guidance from the jury’s findings.
Although Oracle’s case against Google started off as mainly a patent case, Judge Alsup convinced the parties to set aside most of the patent claims. As a result, the copyright portion of the trial is widely seen as the most significant.
What did the jury decide?
- Did Google infringe on the “overall structure, sequence, and organization” of the 37 Java APIs in the case? If so, was it fair use?
- Did Google infringe on documentation for those 37 Java API packages? If so, was it fair use?
- Did Google infringe on copyright by copying some comments and code, including a nine-line “rangeCheck” function?
- Finally, if Google did infringe on the “overall structure, sequence, and organization” of the Java APIs, did Oracle or Sun lead Google to believe it did not need a license to do so?
Here’s where it gets weird. The jury’s answers were:
- Yes, but we can’t decide if it was fair use
- No, Google didn’t infringe on the documentation
- Yes, Google infringed when it outright copied a nine-line function, but on nothing else
- Oracle and/or Sun did lead Google to believe it wouldn’t need a license, but Google didn’t actually rely on that when it decided to roll out its own Java.
On the face of it, Oracle walks away with only a minor victory: the only copyright claim the jury upheld was that Google copied that nine-line rangeCheck function — and Google outright admitted to it as a mistake. At this point in the trial, Oracle can only seek damages on infringement on those nine lines of code. At most, that would total up to $150,000.
APIs and copyright
Oracle did get a significant ruling, however: the jury did find Google infringed on the “overall structure, sequence, and organization” of the 37 Java APIs at issue in the case. However, the jury could not unanimously decide whether Google’s actions constitute “fair use” under copyright law.
So what’s an API? API stands for Application Programming Interface. It’s not an interface like buttons and scrollbars and menus that we’re used to seeing on a screen: rather, it’s a list of publicly-accessible functions in a software program or an operating system that programmers can use to build things. Programmers use APIs to handle things like providing windows, dialogs, menus, and buttons, but they also do things like communicate over the Internet, draw things on the screen, let developers know about hardware status (say something’s been clicked or tapped), and many other functions. The quality and usefulness of APIs has a lot to do with whether a technology is embraced or goes down with an underwhelming thud.
For Google to have infringed on Java APIs, however, the APIs would have to be eligible for copyright protection. In giving his instructions to the jury, Judge Alsup told them to assume that APIs were copyrightable. In all likelihood he gave that instruction as a way to conduct the trial more efficiently, but there is no legal precedent that APIs are eligible for copyright protection. In fact, this is one of the key issues Judge Alsup has set aside to be determined at his sole discretion.
If APIs are so important to programming, shouldn’t they be eligible for copyright protection? Oracle says yes: The company claims the Java APIs are the specific expression of an idea, and can therefore be copyrighted just like any other specific work. Think of books: the idea of a detective novel can’t be copyrighted, but a specific detective novel can be. Oracle argues the Java API is a specific expression of the idea of an application programming interface for an operating system. Java might be a Hercule Poirot case, where maybe Windows’ API is a Miss Marple mystery.
Google, of course, argues the opposite: that the APIs are an idea — just a concept for how to communicate with a type of software program — and therefore not eligible for copyright protection. At a certain level, it’s not tough to see where Google is coming from: in modern operating systems, public APIs tend to have more similarities than differences. Using the same analogy, Google considers the 37 APIs at issue in the Oracle litigation to be more akin to a detective novel, rather than a Hercule Poirot book.
Can APIs can be copyrighted?
Most consumers’ exposure to fair use comes from digital media: for instance, it is generally considered fair use to make additional copies of copyrighted material consumers have purchased for personal use (like backing up their digital music collection) so long as people don’t perform or redistribute the work. Similarly, non-profit and educational purposes have some latitude to copy and use copyrighted works under fair use. However, it’s important to remember that fair use is not a right, but an affirmative defense. If someone is accused of copyright infringement, the accuser doesn’t have to prove anything; the accused has to establish that their actions constituted fair use.
Operating under the assumption that APIs can be copyrighted, the jury found that Google has infringed on the copyright for the 37 Java APIs in the case. However, the jury could not decide if Google’s infringement would qualify as fair use. Since fair use is an affirmative defense, Google would have to prove to the court that its use of a (perhaps) copyrighted API was legitimate. The jury couldn’t decide whether Google had done so.
Google basically has two primary arguments that its use of the Java API would be protected as fair use. First, Google notes (and Oracle agrees) that Java is a free language. Programmers do not have to purchase Java in order to use it. Therefore, Google is not depriving Oracle of any revenue by integrating those 37 Java APIs with Android. Oracle doesn’t make any money from the Java language anyway.
Second, Google gives its Android operating system away for free: it’s not selling Android, so it’s not unjustly enriching itself by essentially redistributing copyrighted material — remember, we’re still assuming APIs are copyrightable, which hasn’t been determined.
Oracle, of course, begs to differ. While the company agrees Java is a free language and anyone can use it, Oracle contends that if people want to assert that their applications are Java-compatible, they need to license a certification suite. Sure, anyone can use Java, but, basically, if they want to put the Java coffee-cup logo on their product, they need to pay Oracle. Moreover, Oracle insists the Java API is copyrightable as a specific expression of an idea. If APIs are found to be copyrightable — and, once again, that still hasn’t been determined — that will effectively make the “free” Java something different than open source, since (in theory) Java programmers would need a license to use Java “for free.”
Where things stand
Google’s response to the jury’s verdicts was to move for a mistrail, claiming that the issue of whether Google is liable for infringement is directly tied to whether Google’s actions would or would not constitute fair use. Since the jury was deadlocked on the fair use issue, Google feels the trial (or perhaps just the copyright phase) should be thrown out.
Oracle, for its part, trumpeted the jury’s rulings as a victory, claiming the “overwhelming evidence” was that Google knew it needed a license to use Java, and failed to get one. Google is the only major commercial user of Java technology that does not have a Java license; of course, the Dalvik virtual machine in Google’s Android platform also represents the only implementation of Java created independently of Sun and Oracle.
Judge Alsup has given both Oracle and Google until Thursday, May 10, to submit arguments on the mistrial issue.
The jury’s findings on infringement — and indecision on fair use — may all be moot, though. Remember: Judge Alsup asked them to deliberate under the assumption APIs are eligible for copyright protection. However, the final word on whether APIs can be copyrighted will come not from the jury, but from Judge Alsup himself later in the case. The judge had the jury rule as if APIs were copyrightable, but he may decide they are not — an entirely possible outcome. In a brief discussion with the lawyers in the case, Alsup compared APIs to the concept of writing a guidebook from San Francisco to Monterey. Such a book could be copyrighted, but the idea for the book cannot.
And although it doesn’t have any direct bearing on this case, the EU Court of Justice recently ruled that computer APIs cannot be copyrighted.
The Case of the Misinformed Husband
The Oracle-Google case did have a bit of drama Monday, when deliberations were halted on concerns one of the jurors had discussed the case over the weekend with her husband — another juror claimed she had outside knowledge of patent law through her husband, and inferred from it that her husband was a lawyer.
Judge Alsup discussed the issue with juror in question; she indicated that her husband is a patent-holder, not an attorney. She also asserted that that he had told her how long he believed patents were valid, but they did not discuss anything else. It turned out the husband’s information on the length of time patents were valid was incorrect.
The jury as a whole did not feel that the information impeded their ability to continue deliberating on the copyright phase, so Judge Alsup sent them back to work, after offering correct information on how long patents are valid. The move isn’t surprising, considering that the jurors aren’t currently asked to examine anything related to patent law.
Where does Android stand?
Oracle’s suit against Google over Android is just the first major legal test of the “free and open” operating system: now that Google is in the final steps of acquiring Motorola Mobility, it’s likely to face a direct challenge from Microsoft, which is suing Motorola for patent infringement in Android products. So far, Microsoft has been remarkably successful getting Android device makers to fork over per-device royalties for making gear with Google’s “free” operating system. Now that Barnes & Noble has done a deal with Microsoft, Motorola remains the only major holdout. Barnes & Noble was the only player besides Motorola willing to take Microsoft to court, however, so the Redmond software giant’s claims haven’t been put to the test. Even so, Android’s status as a “free and open” operating system is already questionable, even if Google walks away from the Oracle case unscathed.
If Oracle wins its assertions that the Java APIs are copyrightable, the jury finding seems to imply that Google could be on the hook for infringement. After all, Google may give away Android, but it earns money indirectly from Android by broadening its search and mobile advertising platforms. Damages are unlikely to reach into the billions Oracle originally claimed, but Google could be on the hook for significant royalties and damages for as long as it keeps producing Android. If Google wants to protect the Android ecosystem, it will have to consider shouldering those costs itself, rather than passing them along to device makers like Samsung, HTC, and its own Motorola.
That said, a ruling that the Java APIs are copyrightable could have a chilling effect on Java development: programmers may steer away from Java in favor of technologies that don’t need to be licensed from Oracle or some other company — even if those licenses are free. Moreover, any software projects that rely on so-called “cleanroom” techniques to reverse engineer compatible software products could be put in serious jeopardy. After all, if APIs can be copyrighted, cleanroom efforts can’t use the same API with different software under the hood.
Such a ruling could have tremendous ramifications for open source projects like Linux (portions of which duplicate APIs from commercial software) as well as things like cloud services: most cloud computing and storage platforms are heavily based on APIs developed by Amazon.
Got all that? We’ll take your dumbfounded silence as a “yes.”
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