Fight Is On Between Oracle And Google Over Java API Copyrights

from the shouldn't-have-gotten-this-far dept

Last summer, we noted that there was an interesting "sideshow" in the patent dispute between Oracle and Google -- a question of whether or not Java's APIs are covered by copyright. That "sideshow" has become the main attraction now that the trial has started and many of the patent claims have been kicked out.

Oracle has been quite public with its argument (pdf), which is mostly based on taking snippets from Google emails that suggest a need to license Java. The favorite of the bunch is this one:

They also point to some snippets of code that do appeared to be copied:


If you just see that side of it, you might be convinced, but the details suggest a much less convincing story. First off, there are serious concerns about whether or not an API even can be covered by copyright. In fact, before Sun was acquired by Oracle, Sun's own CTO had said that "internet specifications are not protectable under copyright," which (you might think) gives Google an implied go ahead to make use of the API. Furthermore, many of the email snippets that Oracle presents are taken out of context -- they show little snippets of big emails and pull from very very different time periods -- ranging from 2005 to 2010, when different factors applied. Oracle also scrubbed a blog from former Sun CEO Jonathan Schwartz in which he warmly welcomed Google to the Java family when the company launched Android.

Perhaps more damning: Larry Ellison himself in 2009 at the JavaOne event spoke about Google's Android development and how they were contributing code back to Java. Ellison himself was put on the stand and appeared to contradict his own depositions when it came time to discuss the specifics of the copyright. That can't go over well. Not only that, but he stumbled, and claimed he was "not sure" when asked specific questions:

On cross-examination, Google came out firing and the room got tense quickly. “Do you understand that no one owns the Java programming language?” lead counsel Robert Van Nest asked.

Ellison began a longer answer, but Judge William Alsup interrupted him and said it was a “yes or no” question. Finally Ellison said, “I’m not sure.”

“And anyone can use it without royalty?” Van Nest followed up.

“I’m not sure,” Ellison said again.

Then Van Nest showed a video of Ellison receiving the same question on a deposition video and answering “That’s correct” to both.

Oracle's response, of course, will be that it just meant for developing apps, not for using the API -- but its other statements are a lot less clear on that. Either way, it seems pretty clear that Sun gave an implied open license to these things, so to come back now and insist otherwise is pretty questionable. Furthermore, there still are questions as to whether or not an API can actually be covered by copyright at all.

Separately, Oracle keeps talking about just how much work it is to create APIs, and even points to some Google statements about the difficulty of doing so. That's smoke and mirrors. Difficulty has no bearing on copyright law. It's kind of surprising that Oracle's lawyers would even bring it up, as "sweat of the brow" arguments won't get very far. Hell, even if it biases a jury, it would get rejected on appeal. It seems like Oracle's strategy here is just to confuse the jury and go for guilty by association because they're going to have trouble showing actual guilt.

As for the specific code snippets shown above, those a few lines out of 50,000 or so files. Under copyright there's a defense known as de minimis copying, if you're just found to have copied a very tiny portion of something. It seems like that might apply here as well.

Also, you may have heard stories about the results of this trial potentially being worth billions of dollars or something, but that was before most of the patents got thrown out. The patents left over aren't worth very much at all, and the end result means that if Oracle wins, it'll likely get less than $100 million. That's still a significant sum, but it's a lot less than what Oracle had hoped to get in this lawsuit.

In the end, as it seemed from the beginning, Oracle's case looks pretty weak (and getting weaker).

Filed Under: api, copying, de minimis, java, larry ellison
Companies: google, oracle, sun

Side Show In Oracle, Google Patent Fight: Are API's Covered By Copyright?

from the we-may-find-out dept

While the main event in the Oracle lawsuit against Google is around patents, there is an interesting copyright sideshow as well, focused on the question of whether or not Oracle can copyright an API. A couple weeks ago, Google filed for summary judgment on this, noting (among other things) that Sun's own CTO had flat out declared that "internet specifications are not protectable under copyright," prior to Oracle buying out Sun. The other key claim is that even if Google copied the API, the accusation has them copying 12 files out of over 50,000, which would qualify for de minimis copying, which is a common defense against minimal copyright infringement.

Oracle has now responded and is arguing that copyright for APIs is perfectly reasonable, claiming that the APIs "contain many original and creative elements." Just as Google quotes a former Sun CTO, Oracle (somewhat snarkily) quotes a current Google employee (and former Sun employee) in noting, "API design is an art, not a science."

As Groklaw notes in the above link, Google probably won't win on the motion for summary judgment on this issue, even if it has a better chance at trial:

Although we don't buy all of Oracle's arguments (most importantly, we don't believe much of what they assert is copyright protected subject matter is, in fact, protected by copyright, such as API's), Oracle has probably done enough in its response to put the issue of copyright infringement before a jury. Of course, the court still needs to rule on Google's summary judgment motion.

Indeed. I have trouble seeing how APIs can be covered by copyright. Oracle's key argument beyond that misleading quote is that creating a good API is "difficult." Difficulty alone does not determine if something is copyrightable, of course. Either way, allowing for copyright claims on APIs seems like a good way to create a lot more problems for important (legal!) things like reverse engineering. Once again, it seems like stupid intellectual property laws may get in the way of important methods for innovation.

Filed Under: apis, copyright
Companies: google, oracle, sun

Oracle Deletes Jonathan Schwartz's Old Blog; Which Excitedly Celebrated Google's Use Of Java In Android

from the rewriting-history dept

There was a bit of an embarrassment in the ongoing patent dispute between Oracle and Google. Oracle, of course, is claiming that Google's Android violates some of the patents it acquired from Sun concerning Java. Google pointed out that if its use was so problematic, why did Sun celebrate Google's Java usage in Android? They pointed to a blog post from then-Sun CEO Jonathan Schwartz (who was the first Fortune 500 CEO to blog -- and who, unlike many corporate bloggers, actually spoke his mind on the blog), which happily celebrated Google basing Android on Java/Linux: Of course, that looks bad for Oracle... so it's response was to delete Schwartz's entire blog. Poof. That moment of history gone. Except if you have access to the Internet Archive's Wayback Machine. No wonder the Internet Archive has been declared a rogue site dedicated to infringing activities.

I imagine that Oracle also wanted to erase other former Schwartz blog posts, like the one we spoke about years ago, in which he pointed out that suing over patents is a sign of desperation and that real companies innovate, rather than litigate.

Now, many of you who will be quick to point out that none of that matters. Oracle holds the patents now and so it gets to decide. And that's true -- though I do wonder if such promises not to litigate over patents and to celebrate such usages might be seen as a form of a license... But, the larger point I wanted to raise is that this shows the dangers even of defensive patents. Sun held a ton of patents, almost all of which were for defensive reasons (or to just show what a joke the patent system is). And yet... now that Oracle has them, it can and is using them to try to shake down other companies.

Filed Under: android, blog, evidence, java, jonathan schwartz, patents
Companies: google, oracle, sun

Google Points Out That Oracle Asked Sun To Open Source The Java Tech It's Now Suing Google Over

from the ah,-history dept

NSILMike points out that Google has now responded to the lawsuit Oracle filed against it over Java-related patents that Oracle got when it took over Sun. The response covers all the usual stuff that you find in every response to a patent lawsuit (i.e., "we didn't infringe on any of these patents, and even if we did, the patents are invalid"). However, it also includes some background on Java, and the fact that Sun had promised to open source the whole thing, but kept some of it back (the part that's now in question). But what makes it a bit more complicated is that it has Oracle on record urging Sun to finish the job and more fully open source Java. While I don't think that actually matters from a legal perspective, you could see it potentially influencing the overall case.

Filed Under: history, java, patents
Companies: google, oracle, sun

Misguided Insult To Misguided Injury: HP Sues To Stop Mark Hurd From Taking New Job

from the what-a-waste dept

The most credible explanation I've seen so far as to why HP fired Mark Hurd last month, even after it determined that he had not actually engaged in sexual harassment, was that the Mark Hurd help lead the investigation into the board over the infamous pretexting scandal, and that the whole story about the supposed harassment and fudged expense reports were just an excuse to get rid of a CEO the board didn't like -- even as he was performing tremendously well.

If that explanation is actually true, it also helps explain the news that HP is now going to sue Hurd for accepting his new job as President at Oracle. As HP's lawyers absolutely must know, California has a law that the courts have interpreted quite broadly, that says noncompete agreements are not enforceable, because you cannot deny a person the right to earn a living. HP is (weakly) trying to get around this by claiming the job shift would violate "confidentiality agreements" and trade secrets, but there's almost no chance a court buys that. The lawsuit seems like a non-starter. In fact, the only reason for filing the lawsuit really seems to be an absolute pest. It's an incredibly childish move by a company that should know better.

Filed Under: confidentiality, mark hurd, noncompete, trade secrets
Companies: hp, oracle

Why The Oracle Java Patents Were Literally A Joke Played By Sun Engineers

from the our-patent-system-at-work dept

There's a famous story of how IBM sued Sun for patent infringement in the early days. The patent claims from IBM were ridiculous, and Sun's engineers pointed that out to IBM's lawyers. In response, the men in blue made the famous statement:

"OK, maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk [IBM headquarters in New York] and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?"

I had been thinking of that story after seeing the news that Oracle was suing Google over patents it received in buying Sun, and it seems that the joke of an IBM lawsuit may be indirectly responsible for this equally laughable lawsuit. Slashdot points us to a blog post by early Sun engineer James Gosling, where he admits that the experience with the IBM lawsuit resulted in a game among Sun engineers to come up with the most ridiculous thing that could be patented:

In Sun's early history, we didn't think much of patents. While there's a kernel of good sense in the reasoning for patents, the system itself has gotten goofy. Sun didn't file many patents initially. But then we got sued by IBM for violating the "RISC patent" - a patent that essentially said "if you make something simpler, it'll go faster". Seemed like a blindingly obvious notion that shouldn't have been patentable, but we got sued, and lost. The penalty was huge. Nearly put us out of business. We survived, but to help protect us from future suits we went on a patenting binge. Even though we had a basic distaste for patents, the game is what it is, and patents are essential in modern corporations, if only as a defensive measure. There was even an unofficial competition to see who could get the goofiest patent through the system. My entry wasn't nearly the goofiest.

While that patent that Gosling names isn't included in this particular lawsuit, but others have noticed that one of the patents (RE38104) is a Gosling patent.

Of course, it's easy to point out that the folks named on the patents are claiming themselves that the patents were part of a joke to see how bad the patent office is. But, you can take it to another level altogether, and have folks who actually know quite a bit about the technology go through the patents one by one and explain why each of them is a total joke.

This is yet another in an exceptionally long line of examples of what a complete mess our patent system has become. I'm curious if the patent system supporters out there can come up with some sort of way to defend the patent system in this particular situation.

Filed Under: james gosling, java, joke, patents, software patents
Companies: google, ibm, oracle, sun

Oracle's First Big Move With Sun? Use Sun's Patents To Sue Google

from the real-companies-innovate,-not-litigate dept

Over the past few years, Sun has been one of the more outspoken companies against abusing the patent system, with former CEO Jonathan Schwartz explaining that real companies innovate, not litigate. However, Sun and its patents are now owned by Oracle, and apparently Larry Ellison feels otherwise. Oracle is now suing Google for patent infringement, using a bunch of patents that Sun owns around Java, claiming that Google's Android implementation of Java is done without a license. This is a bit surprising, really, as big Silicon Valley tech companies don't often get into patent battles with each other -- and, historically, when they do launch such patent attacks, it's usually a sign of something bigger being wrong with the company. Anyway, if you're interested, the patents in question are 6,125,447, 6,192,476, 5,966,702, 7,426,720, RE38,104, 6,910,205 and 6,061,520. And here's the filing: Interesting to see super lawyer David Boies on this one. His career really has gone downhill, hasn't it? From once leading the government's antitrust case against Microsoft to representing SCO's ridiculous lawsuits and now being involved in yet another silly patent fight?

Either way it will be interesting to see Google's response. Unlike many big tech companies, Google hasn't warehoused patents at quite the same rate. The company certainly does regularly apply for and get patents, but if you watch the numbers, they're much lower than other tech companies, and I can't recall Google ever making a patent claim against another company. So it'll be interesting if Google responds with the standard response to a patent lawsuit between two big tech companies: which is to countersue over other patents, effectively launching the nuclear counterstrike. My guess is that the more likely response is that Google will eventually just pay off Oracle to make this lawsuit go away.

Filed Under: java, patents, sdk
Companies: google, oracle, sun

Secretive Patent Holder Sues Lots Of Companies For Remote Activation Software

from the gotta-get-it-done-before-bilski dept

Brian points us to the news of yet another questionable patent lawsuit filed by yet another shell company, yet again in Eastern Texas against a ton of software companies. The patent in question (5,222,134) is for a "secure system for activating personal computer software at remote locations," and was originally filed back in 1991 and granted in 1993 -- meaning that the patent is actually nearing end of life. Odd, then, that it was suddenly noticed that all these companies were infringing. The lawsuit is filed by a shell company called BetaNet, and no one seems willing to speak. The lawyers representing BetaNet won't say who is behind the company, or how they even got the patent. This is typical. Many of these types of lawsuits are filed by shell companies to hide who is actually behind them. As for the defendants, here's the list:

Adobe, Apple, Arial Software, Autodesk, Carbonite, Corel, Kodak, IBM, Intuit, Microsoft, McAfee, Online Holdings, Oracle, Rockwell, Rosetta Stone, SAP, Siemens, and Sony.

Obviously, none of those companies could have come up with ways to remotely activate software without this patent (yes, that's sarcasm). As the Register notes in the link above, even some of the software products listed as violating this patent don't seem to involve activation at all, raising serious questions about how they could possibly violate this patent. This sounds like yet another case of someone having read the book Rembrandt's in the Attic and deciding to go trolling for companies to sue with a meaningless patent.

Filed Under: activation, east texas, patents, software
Companies: adobe, apple, arial software, autodesk, betanet, carbonite, corel, ibm, intuit, kodak, mcafee, microsoft, online holdings, oracle, rockwell, rosetta stone, sap, siemens, sony