Future of software innovation hangs in balance in Oracle vs Google case

12 May 2016

The very fabric of the software development economy and the "fair use" of copyrighted software hangs in the balance in this pivotal Oracle vs Google case

The very future of software innovation hangs in the balance as Oracle’s $9.6bn lawsuit against Google over the use of Java in its Android mobile operating system reached a pivotal moment this week.

At the heart of the issue is the fair use component of copyright law, which if altered by a new legal precedent could disrupt the very nature of how APIs and software are shared by developers to build products.

At stake isn’t just a substantial potential cost to Google’s parent company Alphabet but the very foundation of how the software industry makes its money and this has vast implications for software development and individual developers.

‘How many developers will abandon ideas for competitive software because the legal risks are too great?’

Six years ago, Oracle took an intellectual property lawsuit against Google over the use of APIs using Java without permission. In 2012, Google secured a judgment in which the jury found the company didn’t infringe Oracle’s patents.

However, an appeal in 2014 led to a judge deciding that Google had breached copyright rules.

Goliath vs Goliath

A case that began on Monday in San Francisco centres around whether Google was exercising “fair use” of Java technology, insofar as “fair use” is a branch of copyright law that allows use of a work without the author’s permission.

Oracle’s attorneys allege that Google was willing to run the risk of building its successful Android OS – installed on around 80pc of smartphones worldwide – using Java with or without Oracle’s permission.

The outcome of the case could alter the very ground rules on which much of the software industry has been built in the last few decades.

The court heard that, in 2006, Sun Microsystems, which was acquired by Oracle, discussed a five-year deal with Google to use elements of Java in its Android OS.

Alphabet chairman Eric Schmidt told the court in San Francisco that he was willing to pay $30m to $40m to Sun for the five-year licence but the talks fell apart.

The deal would have seen Sun’s logo appear in parts of Android and certainly more Java software in Android than is the case today.

Former Sun CEO Jonathan Schwartz said that Google pulled out of negotiations because it didn’t want to be technically dependent on another company.

The former head of Android at Google Andy Rubin testified that Sun had reservations about Google’s plan to give Android away for free to phone makers.

While Schwartz was publicly acclaiming Google’s achievement with Android in 2007, Oracle’s lawyers revealed that behind the scenes there was a feeling at Sun that Google was “playing fast and loose” with licensing terms.

It was suggested that Google also knew this was the case. The court also heard that a Google engineer recommended to management that Google buy Java in its entirety from Sun to solve potential lawsuits in the future.

The case continues.

Legal battle could have a chilling effect on software innovation, warns EFF

On the face of it, the case is about money. Oracle wants a jury to order Google, now a subsidiary of Alphabet, to pay $9.3bn in damages, more than half of Google’s overall profits from 2015.

But, fundamentally, for the structure of the software industry, if the jury finds that Google’s activities were not “fair use” it could have implications for all software companies that rely on unlicensed APIs.

What this means is that every time a company wants its technology to interface with another company’s technology via APIs (application protocol interfaces) then this could mean a new licence agreement in every instance.

The fear is this could seriously slow down software innovation.

The Electronic Frontier Foundation (EFF) has warned that while Google and Oracle are companies that can easily afford to fight expensive court battles, the reality is this pivotal case could have a chilling effect on the future of software development.

“Unfortunately, the same can’t be said for the overwhelming majority of developers in the computer industry, whether they’re hobbyist free software creators or even large companies,” said EFF’s Parker Higgins.

“Regardless of the outcome of this fair use case, the fact that it proceeded to this stage at all casts a long legal shadow over the entire world of software development.”

Whether or not Google prevails on the issue of “fair use”, Higgins said there is a real cost to defending fair use in terms of lawyers and penalties.

“Beyond all those known costs, wedging a layer of copyright permissions culture into API compatibility comes with serious unknowable costs, too: how many developers will abandon ideas for competitive software because the legal risks are too great?”

Scales of justice image via Shutterstock

John Kennedy is a journalist who served as editor of Silicon Republic for 17 years