Oracle vs. Google: Dead lawsuit walking

The Oracle vs. Google lawsuit is ending its first phase. On April 30th, Oracle and Google will make their closing arguments. Then, within a week or two, we should get a verdict from the U.S. District Court, Northern District of California, and... it will all begin again when Oracle appeals its inevitable defeat.

Oh, it's possible that the jury will award Oracle something, but in the end Oracle will lose in this court and any other court they try to take their case to. I can say that without any fear of doubt because, just as with the SCO case in its early days, anyone with a real clue about the issues already knows that neither SCO then, nor Oracle now, has a leg to stand on.

There are several reasons why the case continues to get so much attention. First is is Oracle going after Google over the most popular of all the mobile operating systems, Android. The other reason is that, frankly a lot of the coverage of the trial and the events leading up to it has made it seem like Oracle actually had a case. They didn't. They don't.

Android strategy on display in Oracle v. Google showdown (images)

Part of the reason for this popular misconception came about because many people took the word of Florian Müller, a patent lobbyist, as an objective reporter on the case. If you cover intellectual property law issues for years, as I had, you knew that while Müller started as an anti-patent activist, in recent years hes been an analyst for hire for Microsoft and Oracle. Essentially, he's a lobbyist for Oracle. Never-the-less, many reports used his pro-Oracle/anti-Google takes as facts in their news stories.

Back in 2010, when Oracle first sued Google for Java copyright and patent violations, Oracle’s Java lawsuit was a shocking move. Oracle, a founding members of the Linux Foundation, was suing a company over Android, which is a mobile Linux distribution!?

As Stephen O’Grady, one of the founders of Red Monk, the developer-oriented analysis firm, said at the time, “This is simply a case of Oracle being less concerned than Sun about being perceived as a bad actor. It is interesting, however, that Oracle appears to be willing to trade short-term transactional gains for long-term ecosystem health.”

Sun's insiders like James Gosling, Java’s creator, weren't surprised though. As Gosling said then, “Oracle finally filed a patent lawsuit against Google. Not a big surprise. During the integration meetings between Sun and Oracle where we were being grilled about the patent situation between Sun and Google, we could see the Oracle lawyer’s eyes sparkle. " However, "Filing patent suits was never in Sun’s genetic code.” Suing other businesses though, as SAP can attest,  is in Oracle’s genes.

Oracle chief financial officer and president Safra Catz's claim that Oracle “never wanted to be in this litigation with Google” is nonsense on one level. On another, it's not. What Oracle really wanted was Google to be so terrified by Oracle's demand for $6.1-billion to scare them into forking over say, half-a-billion to make the lawsuit go away. Google didn't scare.

Oracle has two major complaints. First, Google with Android violated its Java software patents. Leaving aside that software patents are evil and should be ripped out of the pages of the law, Oracle's patent claims have been chopped into kindling. All but one of Oracle's patents have either been kicked out of existence by the Patent & Trademark Office (PTO) or by Judge William H. Alsup. Of the little that's left of this side of the case, Oracle’s own expert, Boston University professor Iain Cockburn estimate of damages, said it estimated the maximum damages would $32.3-million. At an informed guess, Oracle's spent more on this case this year alone.

Oracle also claimed that Google had violated the Java language and application programming interface (API)'s copyright. Leaving aside the question of whether you can copyright either a computer language or an API and it's not at all clear that you can, that leaves one itty-bitty problem: Sun, Java's parent compnay had open-sourced Java under the GPLv2 in early November 2006.

What that means, of course, is that even if Oracle is ruled right in every particular about the copyright issues none of it matters. Sun, Java's creator and previous owner, has opened Java up for anyone to take the code and do with what they wished so long as they obeyed the rule of the GPLv2.

Worse still from Oracle's viewpoint, when Google introduced Android with its clear Java legacy a year later in 2007 what did Sun CEO Jonathan Schwartz do? Did he say that Google had gone too far? That's they'd stolen from Sun? Nope. He said, and I quote, Sun has “obviously done a ton of work to support developers on all Java based platforms, and we’re pleased to add Google’s Android to the list.”

Then, at the trial, Schwartz reaffirmed that under his rule, Sun wanted to be as open and popular as possible and that meant supporting what Google was doing with Android Would he have liked to work closer with Google? Sure. Was they going to try to sue them? No, As Schwartz explained on the stand, “You’re now married, and you have to find out a way to get along,” Sun wanted to “find ways to make Google comfortable,” so when Google made it clear that they'd like to do their own spin on Java, that “they felt they could better execute on their own and didn’t need what we had to offer,” then so be it.

As Schwartz explained when Oracle tried to spin his testimony, so long as someone didn't try to call their Java-based “You’re now married, and you have to find out a way to get along.” Oracle clearly wants a divorce, but with their lack of significant patent proof and Sun's open-source prenuptial agreement, they're going to have a heck of getting any intellectual property alimony from Google.

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