Oracle vs. Google: Dead lawsuit walking

Oracle vs. Google: Dead lawsuit walking

Summary: Oracle's case is as dead now as when it began. Like SCO with its insane attacks against IBM and Linux, Oracle doesn't have a leg to stand on in its Google litigation.

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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.

Related Stories:

Oracle's Google Android patent lawsuit cut down to size

A Google Android and Java history lesson

Oracle CFO: We never wanted this lawsuit with Google

Oracle: Google wanted easy route to Android revenue with Java

Oracle tries to rebound with help from Sun co-founder

Topics: Oracle, Google, Legal, Open Source, Software Development

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  • Master Joe Says...Wrong

    I can summarize this article very easily.

    I'm going to make a matter-of-fact statement. My statement is wrong. Let me spend the next five paragraphs telling you why I'm wrong, and then I will tell you that there is absolutely no chance of me being wrong.

    Oracle certainly doesn't have the massive case that it was filing in the beginning of this lawsuit. But, to suggest that Oracle has no case whatsoever is like saying Google respects your privacy. Sure, it sounds great It would be a great thing to put on a t-shirt. But, in the end, those of us who know even something about the tech industry know that the only place to find less honesty than in a statement like that is the upcoming race for the US Presidency. I could take the time to go point-by-point and discredit EVERYTHING you say, but I have a long week ahead of me and attempting to get a good night's sleep before that starts seems more important. For those who don't know what I'd say already, I encourage you to find all of the facts (more information than you could ever need is available on the web about this trial, open source, Android, Linux, the GPL, etc.), and make your own decision, as this is simply my opinion, and we are all entitled to have one. To those who already do know what I would say, you probably weren't going to read the rest of the post anyway, since you already see things from my point-of-view, and the most I'd get out of it is a few +1 ratings or a response agreeing with my comments, in whole or in part. So, on that note, I close with saying thank you to the author of this article, as it has now taken over the top spot on my list of all of the ZDNet articles I've read over the past 8 years or so as the most wrong thing anyone has said in a ZDNet article, ever.

    --Master Joe
    SteelCityPC
    • Loquacious

      Seems to be your specialty as there is no point in the drivel you wrote. Florian Mueller writes just like you actually. A lot of fluff and sounds like he's trying to say something but actually says very little and most of what he projects as his version of the facts are ultimately wrong. He said Oracle would get billions initially. Didn't happen and won't happen. lately Mueller proclaimed that Oracle would another patent readded to the lawsuit and that didn't happen either. Does Mueller ever admit is wrong? Nope.
      DonRupertBitByte
      • Oracle vs. Google

        In this days Google stay on moving sands. I hope in one day that somebody could concur with Mr. G

        http://www.cheapestautoinsuranceinflorida.net/
        karismasand07
    • you are wrong

      sjvn is right 100%!
      The Linux Geek
  • Good story Steve. Your legal background shines through with clarity.

    nt
    DTS, Your Linux Advocate
  • The One Open Question

    You are certainly correct in this regard: Oracle's hopes to use litigation to offset in significant measure some of the premium they paid for Sun are not going to be fulfilled.

    The question as to copying multiple packages' structure and organization is really all that remains, but it's a significant question and just as it is unclear that Oracle could protect it, it is equally unclear that Google could copy that without infringing rights.

    I'm going to be watching closely as to that issue. I think it's likely to go against Oracle. Plus there's the wacky registration issue and that Google used Harmony which was begrudgingly blessed by Sun, though not really. What's a jury to think?

    I think there is something to be said in criticism of Google not taking a license or partnering while utilizing Sun's investment in building a developer community in order to reduce the risk of launching Android. But that's why some folks hire attorneys, to figure out what they can do without opening the wallet.
    DannyO_0x98
  • Careful Steven, that old kiss of death thing . . . . .

    You know, anything Steven supports dies.

    Besides if Oracle wins, perhaps Google isn't the real target anyway. Once they win, then the vendors that make money from the patents, copyrights, or whatever the case is over will be forced to pay yet anther vendor for the right to use "Free" Android.

    Whether anyone likes or not, those fees add up.

    Seems sort of interesting that Google admitted that they thought they needed licenses and decided to skip that detail anyway. It's up to the courts to decide now.
    Cynical99
    • "Sort of interesting"

      "anything Steven supports dies."

      You have a KNACK for making INFLAMMATORY remarks with ZERO substance.
      narfrolyat
  • agree 100%

    I would take sjvn over the florian $hill any time.!
    FM is getting desperate and is posting apalling lies like the 'android is not open': http://www.fosspatents.com/2012/04/google-to-court-galaxy-nexus-code-is.html
    But we all know the truth better!
    The Linux Geek
    • The article you cite includes a quote from Google

      Google:

      "Although Google releases some versions of Android through the Android Open Source Project, the internal functionality of Android running on the Samsung Galaxy Nexus is Google's trade secret."

      Are you saying that Google did not say this?
      The Star King
      • The best lies have a reasonable amount of truth to them

        The best lies have a reasonable amount of truth to them.
        daengbo
      • That's a quote taken out of context

        what that means is that android is open for good faith developers but not for greedy lawyers and evil companies.
        The Linux Geek
      • small minds

        it might not occur to you that the trade secrets are things that are not the subjects of this lawsuit?
        narfrolyat
      • ""TRADE SECRET" is the Key!

        And this quote Florian dug up is from when Google took development of Android for Google Nexus in house to protect "Trade Secrets" used in it's development only. In case you haven't noticed ICS is again a part of their Android Open Source Project, for free and open public consumption... you fool!
        KronJohn
      • Re; Samsung Galaxy Nexus

        What Samsung added / changed in their implementation of Android in order to fit [b] their [/b] hardware, is not passed on to anyone else as binary code and the claim for source code for this is therefore invalid.
        hkommedal
  • Completely agree....

    And it's been known for a while now that Florian Mueller is a paid blog lobbyist. His writing is about as anti-Google as it can get. How anyone can consider him an authority on anything is beyond me.

    http://www.tech-thoughts.net/
    sameer_singh17
  • Another SJVN BS!

    No matter how much twist anyone add to the story, the simple fact is that Google shamelessly took shortcut and copied Java. If Google were to be great, then they should have developed their own platform like Microsoft or Sun did.

    Google took the 'open source' path not because of the love for it, but to line up its pocket with quick cash.
    owllnet
    • SHAMELESS

      What a great word! What legal standing does it have?

      Isn't it TOO BAD that Sun Microsystems SHAMELESSLY released java under the GPL license?

      Maybe NOW you are going to assert that it is WRONG to work with other's code when it has been RELEASED to the world under a free license?

      Tell me if Oracle thinks is WRONG to use modified versions of java then WHY did Sun Microsystems release it under a license that allows ANYONE to modify and re-release it?

      One more time WHAT IS YOUR ARGUMENT AGAIN?

      Oh and REALLY, Apple, Microsoft, Sun, Google, they ALL COPY SHAMELESSLY from each other. It is called PROGRESS.
      narfrolyat
  • Wishful thinking

    I know you believe in open source and will naturally side with Google, but wanting Google to win doesn't necessarily make it so. Certainly google believed it needed a license for Java for many years, as leaked emails confirm.

    "Sun, Java???s parent compnay had open-sourced Java under the GPLv2 in early November 2006."

    That's true but it means anyone using Java under GPL would have to put their stuff under GPL too (GPL is "viral"). If you want to use Java and keep everything proprietary, you need to take a commercial Java license. Google was well aware of this issue as their own leaked emails (produced in the trial) now confirm:

    http://www.fosspatents.com/2012/04/open-sourcing-of-java-and-api.html

    (in case you're worried about bias, I'm asking you to look at Google's emails on this page, not Muller's text)
    The Star King
    • Only one problem with your argument

      The only problem with your statement about the GPL being viral is that Google did an independent implementation of the Java APIs and didn't use the existing code. The GPL only applies to the new work if you used the existing source code, which Google didn't.
      txtechdog