10 Years On: Oracle V Google Still Ongoing
Written by Sue Gee   
Sunday, 16 August 2020

Who would have thought in August 2010 that Oracle's lawsuit against Google would still be ongoing 10 years later - and likely without final resolution for another two to three years. We look back at our original news report and a summary of milestones since.

In Oracle Sues Google For Android Java Use dated August 13, 2010 Harry Fairhead reported:

Oracle wants to stop Android in its tracks because it alleges that the OS uses Java-related patents.

Harry also asked: 

Could this be the end of Android and a retreat into proprietary mobile operating systems like Windows Phone 7?

Well 10 years on Android is still very much with us, although with Kotlin now its preferred development environment, while Windows Phone 7, and indeed any Windows phone system, has long since been abandoned by Microsoft.

As our initial report outlined, Oracle, which took over Java when it acquired Sun Microsystems at the beginning of 2010, was suing Google over patent and copyright infringements relating to the Android OS explaining:

The issue seems to come down to implementation of the Java VM. Android uses a modified and optimised VM - Dalvik which isn't fully Java compatible for reasons of efficiency. When Sun made Java open source in the form of the OpenJDK it made the promise that companies that produced fully Java compatible systems would be exempt from its patents. However, even if the Google OS was fully Java compatible, the promise only extended to desktops and servers - not mobiles.

Oracle argued that Google knowingly infringed patents, since it had hired several Sun engineers. Our report ended with a link to a blog post by James Gosling, recognized as the inventor, in 1991, of the Java language and a CTO of Sun, who had quit Oracle in April 2010, three months after its takeover of Sun, for his response to the patent issue:  

hits fanWith regard to the copyright claim our initial report revealed a wider issue. As the lawsuit was based on the use of the Java source code and the core of Android is open source, other programmers who had used that code would also be liable were Oracle to win its case and as time went on the copyright issue has become of increasing concern.

Quite a bit of time elapsed before much happened in this case, partly because William Alsup, the appointed judge for the US District Court, had according to Google v Oracle - progress at last? our report of February, 2011 "better things to do"


U.S. District Judge William Alsup, Northern District of California (Image: Hillary Jones-Mixon/The Recorder)

Although the trial itself didn't start until April 2012 quite a lot happened in the intervening months. In particular at Google's request, the US Patent and  and Trademark Office re-examined the seven patents that Oracle maintained Google had infringed, initially making a total of 168 claims. As reported in Patent Office Ruling Reduces Oracle's case against Google (June 23, 2011) and Oracle's Case Further Undermined As Gosling Patent Topples (February 25, 2012) USPTO dismissed a huge proportion of Oracle's original 168 claims and only eight patent infringements, relating to two patents - see The Oracle v Google Trial IProgrammer Reads the Patents for details were taken forward to trial, and, to skip forward in this time-line, at the end of the trial, in May 2012 the jury found no patent infringements.

By the time the trial finally began the question was focused on copyright, In  Oracle v Google - Are Computer Languages Copyrightable? dated April 14, 2012, I wrote:

Oracle's case against Google now appears to be more about copyright than about patents and as such raises a fundamental issue that could have much wider ramifications than just this case. Can a programming language be copyrighted?

At the end of the initial trial Judge Alsup ruling was that APIs were not copyrightable - but this was then overturned on appeal in May 2014, see Oracle Wins Copyright Appeal.

 

At this point Google filed a petition asking the US Supreme Court to reverse the Court of Appeals decision, backed by many computer scientists both from the industry and in academia, see Computer Scientists Petition Supreme Court Over API Copyright. On that occasion however the Supreme Court declined to hear the petition and instead returned the case to the Federal Court Circuit.

The second jury trial was heard in May 2016, again  in the Northern District of California with Judge Alsup presiding. The verdict was that Google's use of the 37 Java APIs constituted "fair use". This was then overturned in March 2018  by the U.S. Court of Appeals for the Federal Circuit in Washington by the same three judges who had found in Oracle's favour back in 2014 and Google appealed to the Supreme Court with even greater backing from computer scientists and the computer industry. In November 2019 the Supreme Court confirmed it would hear this petition,  see The Fate Of Programming To Be Decided By The Supreme Court

SCSeal

Our most recent report on was back in February 2020 when, in Trump Backs Oracle we expressed our concern was about the outcome of the Supreme Court hearing of Google LLC v. Oracle America Inc, which was then set for March 24th asking:

will Oracle's cozy relationship with the Trump administration influence the decision of the Supreme Court - and if so in which direction?

This brings us to now when, according to Florian Mueller, whose Foss Patents blog posts we have frequently relied on for information and comment on this ongoing story, that hearing is now rescheduled, due to COVID-19, for October 7th. Mueller, who has consistently taken the line that APIs should be subject to copyright, while at I Programmer we believe the exact opposite, predicts that this hearing won't be the end of the matter and that:

Absent a settlement, this litigation may easily go into 2022 or even 2023.

So 10 years on what do we now think? In his We Are All Doomed response to Oracle's submission to the Supreme Court hearing, Mike James was very pessimistic about the chances that it would rule against Oracle. What he didn't expand on is how much this will impact anyone and everyone uses APIs - and that's all of us, from the biggest and most powerful to the individual app creator. Even Oracle is likely to face the ramifications.

And what about the future of Android, which was what Harry Fairhead was initially worried about. Google has tried to mitigate the situation by its focus on Kotlin and on the OpenJDK, but there have been worrying indications that faced with a huge damages bill it could simply walk away from Android. There is also the fact that the software world in general seems remarkably unfazed by the whole situation. However, should APIs be copyrightable that world would shift on its axis. There are so many past infringements of API copyright, should they be copyright, that once the box was open all manner of things would crawl out. Oracle probably isn't immune from the danger, having essentially reverse engineered IBM's SQL Server to create its own database. The corporate line is that this is very different, but IBM might want to differ. In short, Oracle might win but after that it, and the rest of us are potential losers, as the lawyers start to right the newly created wrongs.

 

 

 

 

More Information

A decade of justice delayed: on this day ten years ago, Oracle sued Google over patents and copyrighted works 

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Last Updated ( Wednesday, 07 October 2020 )