A litigator's view: Three things I know about Oracle v. Google

A litigator's view: Three things I know about Oracle v. Google

Summary: Google may have prevailed, but fundamentally it seems reasonable for the owner of Java to expect to profit when others profit from Java.

TOPICS: Oracle

I spent three years in law school, a bunch of years practicing law, and I follow intellectual property matters pretty closely, but I can't say with a straight face that I have a complete grasp of every issue in the Oracle-Google litigation.

Can you? Can the pundits? Can the jurors?

But here are three things I do know:

1. Google is not an innocent here

The news cycle today is all about how Google has vanquished Oracle, and any defeat for intellectual property protection is gleefully celebrated online particularly by the open source people who very much have a dog in the Oracle-Google fight. But for me, from the perspective of someone who's spent my fair share of time in the courtroom, the news cycle never stopped being about this moment in the trial:

In court on Tuesday, Oracle attorney David Boies showed Schmidt a 2005 presentation to Google's top managers that said Google "must" take a license from Sun. Schmidt said he could not recall being told that was the case. [Reuters]

Can you imagine being the young lawyer stuck in some windowless conference room reviewing e-documents 100 hours a week for months on end, subsisting on bologna sandwiches (yes, I've been there), and coming across that smoking gun? A presentation to Google top management basically admitting knowledge of infringement? And then it's revealed in court, reported by Reuters and ... completely forgotten in future news coverage.

Google got lucky here and Schmidt's feet weren't held to the fire, but I'm not willing to forget that moment.

2. Oracle’s lawyer is serious

David Boies is one of the handful of smartest lawyers in the world, "the Tiger Woods of the legal profession." Remember him? He was Napster's lawyer defending against the RIAA, he was Al Gore's lawyer in Bush v. Gore, he was Microsoft's nemesis in the big antitrust trial. Now he's Oracle's lawyer. This is not a guy who takes on frivolous cases.

For about eleven minutes in the 1990s I worked at the same firm (Cravath, Swaine & Moore) as Boies and, while we never interacted beyond the occasional shared elevator ride, everyone I knew who worked with him was in awe of his intellect.

If you listen to the audio recording of the oral argument in Bush v. Gore, you'll hear one of the greatest legal minds of our time in action. This is a guy who can back Justice Scalia into a corner. If David Boies thinks Oracle has a strong enough case to justify spending years of his life on, I'm inclined to take that position seriously.

3. Inventions are good

If we don't protect inventions and creativity, people won't invent and create. The protection of intellectual property has few friends on the internet, but without the profit motive we'd have to wait for Al Gore to invent the internet. Nor would we have computers, LCD displays or comfortable desk chairs to sit on while "sharing" files via Bittorrent.

The Sun-Java people made something valuable. Oracle now owns it. Google made lots of money from it. There are a lot of issues in the case, not least that a lot of Java is open source and that the copyright status of APIs is unclear, but fundamentally it seems reasonable for the owner of Java to expect to profit when others profit from Java.

After all, if all the Android technology was so easily derived from open source code, why did Google need to hire "a load of Sun engineers who worked on Java?"

About the author: Steven A. Shaw is a former litigator and is the Executive Director of the Society for Culinary Arts & Letters.

Topic: Oracle

Steven Shaw

About Steven Shaw

Steven Shaw used to be a litigation attorney at Cravath, Swaine &gMoore, a New York law firm, and is now the online community managergfor eGullet.org and the Director of New Media Studies at thegInternational Culinary Center.

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  • re google is not inncoent

    1) No google is not innocent technically. But oracle have a weak case.

    The code they "copied" is likely accidental and really has no impact on overall android. It is basic standard code, that is no longer even part of android, that anybody could have come up with, so offers nothing special despite the wacky claim from an oracle lawyer 'it could have taken six months...' Yeah maybe for my 3 yo.

    Keep in mind we are talking 9 lines of standard, straight from computer science class code, out of a product with 100,000s of lines of original code.

    2) The use of Java -> this case is about use of Java APIs, not code that SUN/Oracle created about Java

    It's like saying I've got a copyright on CreateFile(filename) so nobody else in the world is allowed to create a function called CreateFile(filename) The ramifications if API names/layout are ruled copyrightable would be a disaster for programming around the world, it's almost impossible not to violate copying API names / layout. Of course win-win-win for laywers if it does go that way.

    3) Of course inventions are good. And lawsuits like these are great for lawyers, thus we can see the promotion going on in this article. I don't think "inventions & IP are good" is relevant to this case. Oracle has a weak case about what IP has been copied, they'll be lucky to get anything, they should have known it from the start.

    Maybe oracle can start actually building some great innovative products, instead of attempting to rape some cash off google's innovation. There is way more google innovation in Android than anything from Oracle.
  • Reasonable how?

    Are you suggesting that Bjarne Stroustrup should therefore earn a percentage from every commercial application written in C++? (I think Windows is written in C++. Ka-[i]ching[/i]!)

    Sun opened up the Java language. What other people now do with [i]the language[/i] is no longer any of Oracle's business.
    • Even more reasonable?

      Java is based on C++. Then, Bjarne Stroustrup could own Oracle. Ka-ching!

    I'm sorry, languages can't be copyrighted, and neither can APIs. (And if Judge Alsup makes the mistake of saying they can watch this go to the SC so fast its feet won't touch the ground).

    As such, Oracle bought a pig in a poke, Sun basically scammed the universe to the tune of 7.4 billion dollars. Couldn't have happened to a nicer company. :)
  • Are programming languages property?

    Does Lucent have the right to a cut every time someone buys or uses a C/C++ compiler? Should the University of California get money for programs employing the Sockets API (now used by just about every network application in existence)?

    The computer software industry has prospered for many decades operating under the assumption that the answer to these questions is "no". If the courts decide otherwise, it will force major changes and I think they will be extremely adverse.
    John L. Ries
    • Well said.

      I hope the courts think things through, not once, not twice, but three times before they handcuff the ability of programmers to use both computer languages and APIs. Haven't they (the courts) done enough damage with their acceptance of software patents?
    • C/C++ are explicitly free and open source. But not Java

      Bjarne Stroustrup and friends went to great lengths to ensure that no-one would own C++, that it would be free forever. Sun did no such thing and in fact always made it clear that the Java was proprietory. In fact most language are free since those that design them believe passionately in OSS. Java is one of very few exceptions: it was designed by a large company not an idealogical individual and always intended to benefit that company. (another example of this is C#). Out of all the hundreds of free and open source languages available, Google chose the one with strings attached.
      The Star King
      • Sort of

        As far as open source goes, Java has one foot in and one foot out, and it has kind of backfired on Sun. Historically, I understand how it got there (it's a pretty interesting history), and Sun accepted the faults of that position.

        Oracle doesn't yet seem to grasp the situation they find themselves in with Java.
      • Corporate benefit, promisses and copyright law

        Even if the intent of creating Java was to benefit Sun, Sun would benefit from a windows free platform. For that, they made several promisses to the community that Oracle is not keeping.

        Also, there is the question of languages and copyright law: copyright is about expression, and languages may not be subject to it.
      • That's not what Jonathan Schwartz said.

        Jonathan Schwartz made it [i]perfectly[/i] clear that Sun had made the Java [u]language[/u] free to use. You just can't call it "Java" unless it passes the TCK, so Google called it "Dalvik" instead.
      • There Is No Source to a Language

        A language is a set of rules to follow in order to be understood. That is, there is a language specification; there is no source. Source only exists for some kind of language processing or implementation.

        You can have source for a C compiler. You can't have source for C itself. You can have source for a Java Virtual Machine, you can't have source for Java itself.

        Since Java is a platform as well as a language, there can be some confusion here. It's perfectly reasonable for Sun/Oracle to retain control over their Java platform (though they don't really since they GPLed their implementation and only retain control over the trademark itself). That doesn't make it possible for them to retain control over Java the language. Java the language on the Dalvik platform is a different thing than Java the language on Oracle's Java platform.
      • Don't know about C++

        But C was devised by Kernighan and Richie on company time when they were working for Bell Labs, and Lucent is the legal successor of Bell Labs.

        Regardless, the notion of programming languages and APIs being property is a disaster waiting to happen, unless decisively quashed in the courts.
        John L. Ries
    • (Deleted by author)

    • Thats different because they gave them up to be standards. If they hadnt

      then yes they would have had a right to have a cut of every C/C++ compiler sold. Oracles position is that they/sun never did that with the java library apis in question.
      Johnny Vegas
      • A better interpretation

        AT&T understood that under the legal doctrines of the time, programming languages could not be copyrighted.
        John L. Ries
  • Some misgivings

    First, the part about Google needing a license from Sun was nearly completely undermined by the testimony of Jonathan Schwartz, former CEO of Sun. And, that sort of kills your first point.

    Second, if you're going to discuss a hotshot attorney in the same breath as Tiger Woods in a positive way (unless you're referring to that fateful Thanksgiving), don't then proceed to discuss some his abject failures. Bush v. Gore (!) was an absolute travesty and the RIAA beat Napster in the courts. Oye.

    And thirdly, where in your ramblings do you mention the fact that Sun open sourced Java, and Google used the code, called it Dalvik, acceptable under FOSS rules, and proceeded to make great products.

    I will leave my opinions about you and your firm, where I do know a few folks, to myself.
    • You're forgetting Mr. Boies most infamous defeats

      SCO v IBM
      SCO v Novell
      (SCO not only lost, but went bankrupt pursuing them).

      Personally, I think Bush v Gore was not only wrongly decided, but may well have been one of the two or three worst U.S. Supreme Court decisions of the twentieth century (centuries start with 01, not 00), but I don't know anything about how Mr. Boies argued the case, so I don't know whether to blame it on him or not.

      Reply to hoaxoner:

      You captured my objection to Bush v Gore perfectly; thank you. The proper venue to decide the issue was the Florida Supreme Court; the U.S. courts had no jurisdiction over the question under any reasonable interpretation of the U.S. Constitution. The decision was pure partisan politics.

      Reply to Johnny Vegas.

      You're probably correct that Bush would have carried the state anyway, but that's not the issue. Rather, the Supreme Court majority (all of whom were Republican appointees) followed an interpretation of the Constitution that directly contradicted the plain text of the document (I did read the decision at the time), making the decision smell like pure partisan politics. The precedent set was a bad one and will almost certainly come back to bite us sooner or later.
      John L. Ries
      • gore bush was a loss for bioes as well and it was not decided wrongly.

        the court followed the law. And of course it didnt matter anyway as multiple post trial recounts done from all the interpretations including the wons gore/boies were fighting for showed bush winning florida anyway.
        Johnny Vegas
      • Johnny Johnny Johnny

        Gore v. Bush was a huge encroachment by the Federal Government on State's rights. In each state, it is up to the state to decide how to determine the electoral votes that it gives. The Supreme Court has no bearing on the issue. Hence the decision was a terrible power grab. The final clause of the decision should bear that out: In no way shall this decision be determined as precedent of any other case like it.

        Also, 2 wars, Medicare Part D, and financial meltdown would seem to declare for it as well.
    • Google did not accept FOSS rules

      That would have meant accepting GPLv2. Google instead licensed Android using a different license which is not viral thus allowing Google and OEMs like Samsung (by far the largest beneficiary of Android btw) to keep their stuff secret. Basically Google wanted to have their cake and eat it too which is why they now are in court.
      The Star King