Game time: Oracle, Google set to face off over Android

By Apr. 15, 2012, 6:00am PT 9 Comments

On Monday, Google will finally get a chance to defend Android–the leading mobile operating system in the world, the linchpin of its mobile strategy and a lightning rod for criticism–in open court against those who charge Google has stolen its way into the smartphone market, as Oracle’s lawsuit against the company finally comes to trial. Here’s what you need to know:

What’s all this, then? Well, my British-sounding friend, this is where we stand nearly 20 months after Oracle first filed a patent suit against Google, alleging that the Dalvik virtual machine used in Android infringed on Sun Microsystems patented technology. Sun had developed Java and later sold itself to Oracle. That part of the case hasn’t gone exactly how Oracle had hoped: of the seven patents it originally asserted against Google in August 2010, only two will be argued before Judge William Alsup in the U.S. District Court for the Northern District of California after re-examinations cast doubt on the other five.

Two is better than none, right? That’s certainly true. However, the focus of the case has actually shifted over the last six months from patents to copyright. Oracle is now hoping to convince a jury that Google copied liberally from the APIs (application programming interfaces) associated with Java when creating Android, and that those APIs are subject to copyright protection. But even then, the overall amount of damages Oracle will be able to collect should it prevail has been dramatically reduced by the judge.

What’s an API? Basically, it’s a set of rules and guidelines that one piece of software uses to make sure it can interact with another piece of software. Oracle is saying that engineers working on Java came up with unique artistic ways to steer those interactions, and that should be subject to copyright. Google, as you might imagine, disagrees that APIs are a creative expression. Google says they are functional and not subject to copyright protection.

Who is going to win? That would be the point of the trial. But Oracle’s argument is novel: if it were to prevail, the ruling would be “fairly catastrophic” to software developers, Simon Wardley of Computer Sciences Corp. told BusinessWeek last week. APIs are so widely used that were Oracle’s interpretation to be upheld, a new wave of litigation that would make the mobile patent wars look like Twitter fights could take hold.

This is confusing. Yep. Complex technologies and legal issues will be argued in front of jurors, and these things are difficult to understand for professionals. Judge Alsup tried very hard to get the parties to settle this dispute–especially after the meat of Oracle’s patent claims went away–and he has gone so far as to dub this “the World Series of IP (intellectual property) trials.”

What is Oracle’s best weapon? The day that Oracle lawyers read an e-mail from Google’s Tim Lindholm to Andy Rubin, the leader of the Android project, every eye in the courtroom will be watching the reaction of the jurors. In that e-mail, which Google unsuccessfully tried to keep out of this trial, Lindholm wrote what will be a central part of Oracle’s argument that Google knew it was copying Java:

What we’ve actually been asked to do by Larry [Page] and Sergey [Brin] is to investigate what technical alternatives exist to Java for Android and Chrome. We’ve been over a bunch of these and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need.

Google has argued that Lindholm was reacting to Oracle’s legal threats in suggesting it might be better to take a license rather than try something else, but it may not matter: it’s not out of the question that a few jurors may see this as Lindholm telling his bosses that Google had used something that required a license.

How long is this going to take? Probably eight weeks, although my colleague Jeff Roberts and I won’t be surprised if the parties settle this thing before it ever gets to the jury. There will be three phases: first the companies will argue the copyright question, and then they’ll consider the patent question. Once that is wrapped up, the third phase will involve how much Google might have to pay in damages to Oracle.

What does this mean for Android? At one point it looked like this case was going to be a referendum on the ongoing patent cases being tried against Android partners like Samsung, HTC, and Motorola, but the patent part of this case has definitely taken a back seat to the copyright question. So those cases will likely continue to plod along regardless of what happens in San Francisco.

Google told BusinessWeek that it has removed the disputed parts of Android’s code from the most recent version of the operating system, so it’s also unlikely to affect Android going forward. The most likely outcome, should Google be found in the wrong, is that it will have to cut a big check: albeit for a fraction of what it hopes to spend on its acquisition of Motorola.

This case is unique, however, in that it’s the only Android legal dispute that directly involves Google as a defendant. It’s possible that Oracle could win an injunction against sales of older Android handsets, since it does still have two patents in its arsenal. However, it’s really hard to get an injunction, and given that legal experts seem much more interested in the copyright portion of the trial than the patent portion, Oracle might find that a tough goal.

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