Google Loses Java Copyright Case, Could Owe Billions

Posted on March 28, 2018 by Paul Thurrott in Android, Mobile with 42 Comments

Image credit: Wikipedia

A federal appeals court ruled today that Google violated U.S. copyright laws when it used Java software code to build its Android platform. As a result, the online search giant could owe Oracle—the current owner of Java’s copyrights—billions of dollars.

“We are disappointed the court reversed the jury finding that Java is open and free for everyone,” a Google statement notes. “This type of ruling will make apps and online services more expensive for users. We are considering our options.”

There aren’t many left, frankly: Google and Oracle have escalated this case through virtually every available court level there is. And the next trial will focus exclusively on the damages. Which could be in the billions. Oracle was seeking $9 billion in damages, and legal experts predict that the payout in the case will at least exceed the highest-ever for a copyright case, which was $1.3 billion. Oracle may even raise its damages demand given the pervasiveness of Android.

The Java lawsuit against Sun was originally launched in 2009 by Java’s creator, Sun Microsystems. But when that firm was acquired by Oracle in 2010, it added two counts of patent infringement to the charges. Oracle alleged that Google illegally used Java to create Android, which powers 85 percent of the world’s mobile devices.

And by “used Java,” I mean that Google “copy and pasted 11,000 lines of Java code,” a fact that Google co-founder Larry Page admitted to in court, in 2016.

In 2012, a federal jury decided that Java, as software code, is not protected by U.S. copyright laws. But an appeals court overturned that ruling two years later. So another jury in 2016 determined that Google’s use of Java was legal under the fair use doctrine. Oracle then appealed that ruling. And today’s verdict indicates that they have won the case.

“There is nothing fair about taking a copyrighted work verbatim,” the federal appeals court ruled.

 

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Comments (43)

43 responses to “Google Loses Java Copyright Case, Could Owe Billions”

  1. Avatar

    Chris_Kez

    This isn't over yet. Google can ask the panel to reconsider their decision or ask for it to go before all the judges; after that, it could still be appealed to the Supreme Court, which I think previously declined to hear this case a few years ago. I expect the court would hear it this time around.

    Even if Google ultimately loses, a $9B judgment isn't going to slow them down in the least.

  2. Avatar

    Nonmoi

    Paul, I feel your representation of the case is a bit of unfair here... Maybe you should read into the case a little more.

  3. Avatar

    maethorechannen

    The Java lawsuit against Sun was originally launched in 2009 by Java’s creator, Sun Microsystems.


    You know you have too many lawyers on staff when you start suing yourself.

  4. Avatar

    BrickPrinter

    “There is nothing fair about taking a copyrighted work verbatim,” Dead on. As we enter into an era where intellectual property is one of the few non-roboticized endeavors and at what US is in the lead in many areas, it should be protected.


  5. Avatar

    T182

    Google buys Oracle?

  6. Avatar

    skane2600

    It's sad that in recent decades competition through litigation has taken precedence over creating great products. Sun effectively killed Java on Windows by suing Microsoft and now Oracle has potentially put another nail in it's coffin. Using Java for Android was, IMO, both a technological and strategic mistake. Even if WORA were really true for Java (hint: it isn't) Android is used almost exclusively with ARM.


    I suppose that Sun will probably just pay Oracle since so much Android code is based on Java, but I'd prefer they move on to a different language (but, God, no, not JS). Perhaps then there were be a major IDE for Android that isn't Java based.

    • Avatar

      RR

      In reply to skane2600:

      Not sure what you mean. Like it's OK for a company to copy your work, make perhaps 100s of billions, and you get zero? Really odd how "litigation" is bad only in some cases. Perhaps courts are there for a reason?

      Its a good bet here that none of this is surprising or unexpected to Google. It's not like they don't know how the court system works or possible interpretations of copyright law. At the end of the day they played off popularity vs. written law, just like music pirates.

      At the end of the day $9 Billion is a fantastic bargain for what they gained from Android. They got to use software that was immediately available and widely compatible to speed to market, thereby elbowing out formidable competitors like Microsoft or Blackberry etc who were trying to do things "properly"(how quaint), create a business worth may $200B+ to their market cap, and they get to drag this through decades of litigation at the end of which maybe just maybe pay less than $10B? Gosh what a bargain.

      • Avatar

        skane2600

        In reply to RR:

        As can be seen by the differing opinions by different courts, it was not settled law that what Google did violated copyright. There have been other tech cases where courts limited how much protection copyright could afford: Apple Computer, Inc. v. Microsoft Corp. and Lotus Development Corp. v. Borland International, Inc.


        I disagree that Google "got to use software that was immediately available and widely compatible to speed to market". How many significant Java programs could run on Android without modification? Java provided no unique benefits to Android, many other languages would have done just as well.

        • Avatar

          Roger Ramjet

          In reply to skane2600:

          (I am same character using my initials above :-))

          Again, Google played, strategically, popularity vs the law. The two cases where they won were both Silicon Valley juries. The two cases where they lost were in appellate cases with trained lawyers presiding. Jury nullification has a long and storied history in the United States. The second case where the jury decided "fair use" applied to wholesale cribbing of thousands of lines of code for Android, which is clearly a commercial product, was particularly laughable. But hey, they couldn't nail OJ either.

  7. Avatar

    hrlngrv

    Google still has the option of appealing to the Supreme Court.

  8. Avatar

    mrdrwest

    Ahhh, haaaa...Google's epidermis is showing...

  9. Avatar

    Stooks

    Pay now or pay later. Could not happen to a nicer company.

  10. Avatar

    PincasX

    The Java lawsuit against Sun was originally launched in 2009 by Java’s creator, Sun Microsystems.”


    I think there is mistake in there. I don’t think filed a lawsuit against itself.

  11. Avatar

    GT Tecolotecreek

     “a fish rots from the head down” 


    And by “used Java,” I mean that Google “copy and pasted 11,000 lines of Java code,” a fact that Google co-founder Larry Page admitted to in court, in 2016.


    All the iHaters and Google/Android fanboys (like Paul T.) should consider this is the guy your trusting with your personal data and, of course, it won't be used for anything unethical.


    Between Google & Oracle it really is a close contest which is more sleazy.

  12. Avatar

    Daniel

    I don't know anything about where Tizen is in its mobile development, but if Google ultimately loses, could this open the door to Samsung pitching their OS to the lower tier Android makers? Would any other manufacturers be onboard?

  13. Avatar

    MikeGalos

    Yeah. Poor Google. It's such a pain when you steal their work and make money off of it and they have the nerve to complain...

  14. Avatar

    Bob Shutts

    From the Java license agreement:


    "THE LICENSE SET FORTH IN THIS SECTION 2 DOES NOT EXTEND TO THE COMMERCIAL FEATURES. YOUR RIGHTS AND OBLIGATIONS RELATED TO THE COMMERCIAL FEATURES ARE AS SET FORTH IN THE SUPPLEMENTAL TERMS ALONG WITH ADDITIONAL LICENSES FOR DEVELOPERS AND PUBLISHERS."



    "A. COMMERCIAL FEATURES. You may not use the Commercial Features for running Programs, Java applets or applications in your internal business operations or for any commercial or production purpose, or for any purpose other than as set forth in Sections B, C, D and E of these Supplemental Terms. If You want to use the Commercial Features for any purpose other than as permitted in this Agreement, You must obtain a separate license from Oracle."


    Yep.

  15. Avatar

    nickysreensaver

    Agreed this is not over yet, but this will slow Google down and the $9B will be much higher due to shifting priorities, legal ramifications and a small possibility of market share loss in lower tier manufacturers. They do have the Fuscia O/S in the wings, but more testing and development is needed. Its going to be an interesting next few years for them. Microsoft is sitting pretty with tools such as Xamarin and .NET to create cross platform apps easily and if the stars align, a mobile O/S for any manufacturer to utilize. The lower tier Asian manufactures who don't have the funds to pay the vig to Oracle will look at this if Google takes "x" amount of time getting Fucia out the door. FYI: Very nice comment post from Bob in the Cheap Seats section !

  16. Avatar

    PeteB

    And Google will appeal to an even higher court than this latest Oracle appeal, and the circlejerk will continue.

  17. Avatar

    Mike Cramer

    This worries a lot of us. The "software code" that Google copied were the Java API packages. The PC industry has largely been built upon the notion that API's are not copyrightable (the code that implements the API's, however, is copyrightable). This legal understanding made the white room implementation of the IBM BIOS legal, and allowed IBM-compatible PC's. It allowed the Linux kernel to use Unix API's. It allowed Wine to run Win32 on Linux. It allows LibreOffice to open Microsoft Word documents. In short, it allows compatibility between widely disparate systems.

    • Avatar

      MikeGalos

      In reply to Donkey_Gas:

      One key point is, as Paul put it in the linked Short Takes is:


      Acknowledging that Google had indeed copy and pasted 11,000 lines of Java code, Page said that this gross intellectual property theft was “established industry practice.” To be fair, Page has a point, though it will be lost on the non-technical: The code Google is accused of copying is mostly code “declarations,” which Page asserts “is not code.”


      The key word being "mostly".


      The other key distinction being which declarations are for public APIs and which are for internal implementation APIs.


      The tradition of APIs not being copyrightable comes from things like the specs for programming languages where you couldn't copyright the signature of a language element but could legally protect the implementation. You can't protect the signature of a public API but you shouldn't think that means that every procedure in the implementation is free to use just because the implementer chose to use named calls rather than spaghetti code in that implementation.


      • Avatar

        skane2600

        In reply to MikeGalos:

        "The other key distinction being which declarations are for public APIs and which are for internal implementation APIs."


        The distinction between public and non-public can't really be justified if you're made the source for both open. True non-public APIs are protected as a trade-secret, not just by copyright.

        • Avatar

          MikeGalos

          In reply to skane2600:

          That makes as little sense as saying that Copyright doesn't apply to any book that's published since you can see what they wrote when you read it.

          • Avatar

            skane2600

            In reply to MikeGalos:

            You disagree with me, I get that, but your analogy doesn't make any sense.


            The public interest in allowing a third-party to duplicate parts of copyrighted code for interoperability and other purposes just doesn't exist for plain text. And the "internal implementation" that you asserted was relevant to the discussion of copyrighted code has no analog in a book.


            The point is that when all the source code is available to everyone, there's no definitive basis for deciding public vs internal, but if the code a company considers internal is not revealed they can establish in court their specific intention to classify that code differently. That may or many not be an effective legal argument, but in my non-lawyer opinion it's a stronger one than merely asserting "internalness" down the road.

            • Avatar

              William Kempf

              In reply to skane2600:


              While I'm on the side (mostly) that's concerned about this legal precedent and the harm it can cause to the industry, what you just said is simply wrong. This case isn't about theft of intellectual property but about copyright infringement. Publishing the code (or anything else that falls under copyright) does NOT remove copyright protections, nor should it.


              I think the true problem here is in not having specific laws for source code, but rather fitting the square peg in the round hole and covering it under copyright. "Copying" API declarations isn't something that should be protected any more than you can protect the shape of a screw. That said, the "mostly" bit is concerning. I'm not familiar with court records here, but if Google actually copied more than API declarations, I don't see how they'd have a leg to stand on, even if the courts could understand the technical aspects here.

              • Avatar

                MikeGalos

                In reply to William_Kempf:

                Exactly. The exception to copyright that does exist for APIs is when you say the equivalent of "Here are the signatures of the APIs we're making available to interoperate with us". That's declaring those signatures, and just those signatures, available for public use.


                scane2600 seems to think that copyright doesn't exist if somebody thinks it would be useful for them and they can easily copy them.


                That's clearly not the case and is the equivalent of "It I want it and you didn't hide it then I can take it and it's your fault for not hiding it from me" which is saying that published articles or books or photographs or music can't be copyrighted since it was easy to steal them.

                • Avatar

                  skane2600

                  In reply to MikeGalos:

                  The limits on copyright with respect to software were established by court cases in which the plaintiffs didn't concede any exceptions, so clearly the copyright holder is not sole entity that determines copyright scope.


                  As far as your "equivalent" statement, did Sun officially establish pubic APIs and declare that they were not covered by copyright?

              • Avatar

                skane2600

                In reply to William_Kempf:

                I didn't say anything about the theft of intellectual property. I didn't claim that publishing source code erases copyright. I said that keeping so-called "internal" APIs secret would establish a distinction between those APIs and the others, thus helping protect the former from the kind of exceptions on copyright that courts have long established.


                While it may not be applicable to copyright, I was thinking of the kind of steps that businesses use to maintain their trademarks. Years ago Xerox used to place advertisements in writer's magazines asking them to refrain from using the verb "Xeroxing" since it was a trademark. They did that to establish due diligence in protecting the trademark. Now, I don't think this has ever been argued for copyright and perhaps never will be, but that's the "flavor" of what I was arguing.

                • Avatar

                  William Kempf

                  In reply to skane2600:


                  1. Keeping it "secret" doesn't change the law or its interpretation in any way. Continuing to make that argument is pointless.
                  2. With languages like Java, C# and others it's not possible to keep any APIs secret, as they are all visible through reflection.
                  3. You complain that you said nothing about intellectual property, and yet in your final paragraph that's precisely what you're talking about when you say "it may not be applicable to copyright, I was thinking of...".
                • Avatar

                  skane2600

                  In reply to William_Kempf:

                  1. I stated at the start that it might not be valid.


                  2. There's a big difference between what can be discovered through reverse engineering a Java or C# program and explicitly making it open source.


                  3. When I dispute a claim made about the past, I'm obviously not making any claim about the present or the future.

                • Avatar

                  MikeGalos

                  In reply to skane2600:
                  1. You got that right What you say is not valid.
                  2. No. There isn't. Open source is explicitly stated. Copyright applies if you lock it in a vault or post it on billboards and distribute the source code like AOL Floppy Disks.
                  3. You clearly don't understand copyright, open source or any intellectual property law.


                • Avatar

                  William Kempf

                  In reply to skane2600:


                  2. Using reflection is NOT reverse engineering. Discovering APIs is something built-in to languages like this. Determining how those APIs are implemented is not. Decompiling the byte code would be reverse engineering.

                • Avatar

                  MikeGalos

                  In reply to William_Kempf:

                  And neither using reflection nor decompiling the byte code waives copyright. That has to be done explicitly. Hence the internal versus external API discussion.


                  Nor does anything make something "open source". And even declaring something "open source" means nothing except to give a general description of the license terms the author published under. It doesn't mean "use it however you like" unless that license explicitly says so.

  18. Avatar

    Simard57

    "The Java lawsuit against Sun" do you mean Google?


  19. Avatar

    cseafous

    So what does this mean for Google after the fine is paid? Do they now owe royalties to Oracle? Do they have to modify their code?

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