Various news outlets yesterday were running with the headline that Oracle had won their case in court against Google/Android over a claim of breach of copyright over Java, but the answer is just not that simple. Yes the jury found that Google had copied some of Java when building Android – but they could not come a decision as to whether that copying fell under fair use.
I don’t many would be surprised that Google was found to have copied those nine lines of code from Java – it is quite plain to see from just comparing the lines between Java and Android. But if that copying was “Fair use” as Google argues, then they were perfectly entitled to do that copying in the first place. The court may have not sided with Google either in this case, but it certainly didn’t side with Oracle. Indeed, US District Court Judge William Alsup told lawyers for both firms after the jury left that
There has been zero finding of liability on any copyright so far…The affirmative defence of fair use is still in play.
The headlines from the BBC to Bloomberg to TechCrunch – numerous news sources are going with headlines that imply some huge victory to Oracle which has simply not happened yet. Google has even moved for a mistrial over the lack of a decision over the issue of fair use, demonstrating how little of the case has actually been decided.
The tech press may be chomping at the bit for the latest legal titbit, but it is about time they started reporting what actually happens in these important legal cases rather than just reaching for hyperbole each time and trying to make out the decisions are black and white. The law comes in graduated shades of grey, and reporting that implies otherwise either has an agenda (more likely extra clicks than anything nefarious) or is simplistic.
The case between Google and Oracle over the copyright and patents involved in Java and Android is one of the most important cases that the technology sector has seen in decades. This isn’t the infighting over smartphone shapes between Apple and Samsung – this gets to the legal certainty behind open source. Open source software is integral to the web, with Apache, PHP, MySQL, WordPress, Drupal, MediaWiki and many more behind a huge proportion of the sites we know and love. You could even argue that the web itself is based on open source principles – as Tim Berners-Lee never patented or copyrighted any parts of it – as he knew that it needed to be open to be a public good and flourish. His basic networking ideas have been built upon layer by layer to become the web we know today. Had he protected his idea, our computers would still be glorified type-writers and our phones just there for making calls.
In relation to this case, Sun Microsystems developed the Java programming language to make applications run on any device. After 11 years of development they then open sourced Java in 2006/7 under the GPL and it has since been considered to be free and open source software (FOSS). With open source software, anyone is free to take the code and do whatever they like with it as long as the changes they make are also open sourced. In order to develop Android, Google basically forked some of the Java code – but with Android being open source that should not have been a problem. Had Sun Microsystems not been bought by Oracle in fact, then there would almost certainly not be a court case going on. Sun believed in open source – they were the ones behind the original Open Office for example.
However, Oracle bought Sun in 2010 for $7.4 billion. Oracle has never been a supporter of the open source movement – and yet over the last few years they have bought both Sun and MySQL AB – the company behind the open source MySQL database. Ever since these purchases happened, users of these open source tools have been nervous about how Oracle might try and interfere – and now we see them doing just that.
Oracle knows that the Java language itself is legally defined as open source, and the GPL is a binding document so they can’t wriggle their way around that. However, the loophole they found is the Java APIs – these application programming interfaces are the tools with which developers actually connect with the power of a programming language or service. Without an API, a programming language is essentially worthless – but as they were not explicitly defined as open source, Oracle believes that that means they own them. Oracle has let developers all over the world develop software using Java and the Java APIs, knowing full well that these people have picked Java as much for its power as its completely free nature – and then now because some of that development has become very popular, and become part of the Android Mobile OS, that they should be able to squeeze that developer for a cut of the profits.
Oracle is trying to redefine an open source programming language as essentially proprietary after the fact, essentially trapping any Java software developers in a situation where their open source tools now carry a hefty fee for usage. There is nothing wrong with proprietary software at all – but to claim it is open source to woo developers and then find a loophole to later claim that whilst the language was open source, actually using it was not is underhand at best.
If this was just a case of Oracle suing Google, it would just be one huge corporation suing another with the outcome only influencing one or other of their bottom lines. But this case goes to the heart of how development works and how progress is made through open source software – and newspapers and tech bloggers should be a little more precise when reporting its progress.
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