Dec 7, 2011

Oracle's anti-Android lawsuit in serious trouble?

I have been following Oracle's (and others, for that matter) lawsuits against Android and Android device makers closely. I am not a lawyer but then the internet and even well known mainstream media is full of uninformed speculation by quick-on-the-draw journalists and analysts so there is no harm if I add to the mountain of useless opinions..

Furthermore, many good lawyers do not understand software programming, APIs and so forth, and do seem to see that as a disqualification at all, so not being a lawyer should not disqualify a techie from talking about such things anyway. For example, when Linus Torvalds came to the defense of Android recently, some lawyers and bloggers blasted him for not knowing enough about law. How many of these lawyers understand enough about Java APIs and programming principles to make sensible remarks? Let alone understand them as deeply and thoroughly as Linus probably does?

With that long foreword, here we go to the main topic..

Oracle is miffed that Google successfully managed to do what it (Sun) failed pathetically with Java for mobile devices.  Make it mainstream, make it easy to use and make it popular.

So it has sued Google to stop the Android juggernaut on its tracks and claim ridiculous sums as damages. In order to bolster such claims, it produced 'expert testimony'. Anyone that has worked in software marketing or knows enough about the industry knows how 'valuable' these experts are and how easy or difficult it is to get them to write something that suits the person paying for it. I remember an old cartoon in Times of India - the simpleton character that routinely appears in these cartoons is told curtly by his boss - "Mr. Godbole, when I need your opinion, I will give it to you!"

Judge Alsup, it appears has not been tickled by any humorous interpretations of the expert opinion on damages, but has been more scathing. He has accepted (tentatively, subject to challenge, like most verdicts below Supreme Court level anyway are) 5 out of 8 points made by Google and has stricken 'substantial portions' of the so-called expert opinion on damages produced by Oracle.

IMHO, the most damaging part of the tentative order is this:
  1. Oracle is forced to split claims between copied code and 'copied' API package names and structure. Google says the API in of itself is not copyrightable. After all it is a specification. The court agrees that it should be split because if the bigger one (API copying claim) is held not copyrightable, then all that remains is 12 code files, which Google claims are minor and a mistake by some Russian programmers outsourced to do the job. Since Dr. Cockburn did not do this, out goes his entire report if Google does not infringe by using the API specs. It does appear to me (read all qualifications and disqualifications stated earlier) that API specs are simply names and unless one copies code, it is not copying. 
  2. Oracle was asked to split damages by claim (which are parts of a patent) and has failed to do so - it treats entire patent as one piece. Now the court has beaten Oracle in its game - by saying if ONE OF THE CLAIMS is held non-infringed, the ENTIRE PATENT CLAIM IS OUT OF THE DOOR (indirectly and effectively to be precise, because the order says the entire damage for the patent will be assigned to that non-infringing claim) ! That will be the instruction to jury. Obviously you can't have the cake and eat it too!

It will be interesting to watch how this pans out.

In the meantime, it would make a lot of sense for Oracle to realise the value Google is adding to the Java community and its popularity, even if it has forked and modified some of the specs along the way. It would make sense for Oracle to drop this silly lawsuit and discuss with Google how both can work together to make Java better, bigger and more popular. Perhaps Oracle can incorporate the changes and improvements Google has made part of the mainstream Java specs.

Since Oracle has a bigger and more strategic competition problem with Microsoft, there is no point going after Google and Android.

You can download the entire report here, thanks to Groklaw.

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