The Oracle v Google case matters to all of us, not just to the two software titans who have been battling over software copyright issues in the courtroom for the past six years. To understand why, it’s worth considering the cascade of liability that might have followed if Oracle had won the jury trial instead of Google.



Oracle claimed that Google’s reuse of 37 of 166 packages of the Java application program interface (API) in the Android software for smart phones infringed copyright. Oracle claimed intellectual property rights in that API by virtue of its acquisition of Sun Microsystems, the developer of the Java technologies, including the API. After a two-week trial, a jury concluded that Google had made a fair and non-infringing use of the API. But what if Oracle had won?

Google wins six-year legal battle with Oracle over Android code copyright Read more

The immediate aftermath of a jury verdict, had Oracle prevailed, would have been a transfer of wealth from one corporate coffer to another. But who really cares about that? The next phase of the trial would have focused on Oracle’s damages claims. We’ll never know if the jury would have awarded Oracle all $9bn it sought for Google’s reuse of the API packages. But if the jury decided that Google’s use of the API packages was unfair, it would almost certainly have awarded Oracle some non-trivial compensation.

Yet an Oracle win over Google might not have ended the Java API litigation insofar as Oracle believed that Android code infringes its copyright. After all, every maker of smart phones loaded with Android software would be equally liable as Google for infringing the Java API packages. Installing that software on the phones requires making copies of the software, and selling the phones constitutes a distribution of copies. If those copies are illegal, then Oracle could sue Samsung and other smart phone makers for infringement, potentially getting damage awards against them, as well as against Google.

Facebook Twitter Pinterest Google CEO Larry Page arriving at court in San Jose, California, in September 2011. Photograph: Bloomberg/Getty Images

Developers of application programs designed to run on the Android platform might have been at risk as well insofar as they utilized the same Java API packages when they developed their apps for the Android platform. The whole point of having an API is to allow software developers to use a common language to invoke certain commands to carry out particular functions. The Java API uses the declaration Math.max, for instance, to invoke program code that will compare two numbers and determine which is the larger one.

So all of the participants in the Android ecosystem would potentially have been liable to Oracle for copyright infringement had Google not prevailed in its fair use defense last week.

But wait, we’re not done yet with the cascade of liability. Because, guess what? Everyone who owns an Android smart phone makes copies of Android software every time the phones are switched on. Copyright law’s strict liability rule means that anyone who makes copies of infringing code can be held liable. OK, Oracle might not sue all 1.4 billion people who own Android phones, but Google’s liability could have cascaded down to others in the Android ecosystem, including you.

Further cascades of liability could have happened outside the Android ecosystem. An Oracle victory in the Google case would have emboldened other software firms with valuable APIs to become more aggressive in challenging unlicensed uses of those APIs. Someone wanting to develop a program to run on another firm’s platform must use that platform’s API to enable the second program to interoperate with the platform. (Think of an API as an information equivalent to the plug and socket configurations that are necessary for physical devices to interoperate with the electrical grid.) If the second program isn’t configured to send and receive information in the precise way that the first program’s API specifies, it just won’t work at all.

An Oracle victory would have emboldened other software firms to become more aggressive in challenging unlicensed uses

If the developer of an API owns copyright in that API, it can say no to any unlicensed use of it. Or it can condition its willingness to license use of the API on high royalties or impose restrictions on the other firm’s development (such as forbidding adaptation of the same program to run on other platforms).

Since 1992, courts have overwhelmingly rejected copyright claims in program interface specifications. These rulings are consistent with the prevailing norm in the computing industry since its early days: that it is OK to use another firm’s API as long as the second firm reimplements the API in independently written code. Over the past two decades, the software industry has thrived because the court rulings converged with industry norms that allow innovative software developers to build upon existing programs and platforms to offer consumers many choices of products for smart phones and other computing devices.

The one exception was the appellate court that heard Oracle’s appeal from an earlier Google win that challenged the ability to copyright the Java API packages. While most commentators think the appellate court was wrong to rule that the Java API packages Google used in Android were copyrightable, the good news is that Google had a backup defense of fair use. And that defense succeeded.

So a lot was at stake for all of us as well as for the litigants in the Oracle v Google case. Oracle’s lawyers have said the company plans to appeal again. Because appellate courts are supposed to defer to jury findings, Oracle’s chances to succeed on appeal are weak. It can challenge the jury instructions, but even if it won on that ground, Oracle would be faced with going through another trial with yet another jury. That jury would hear the same facts as the recent jury did, and the outcome would likely be the same.

Someone Larry Ellison trusts should advise him that it is time to fold up this tent and move on.