DataCenterVirtualization

News: Once More into the Breach, My Friends: Oracle v. Google

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In a follow-up to my Oracle v. Google Java spat post—in which I reported that the appeals court has ruled in favour of Oracle, casting doubt on the whole automation industry and the use of Java APIs—it seems that Google has decided to take this to the US Supreme Court. The argument it has submitted to the court is that the appeals court ruling should be overturned in the interest of protecting innovation in high tech.

On the face of it, this seems a laudable effort. True, there are altruistic motives behind this case. Google is on the barrel for a significant amount of royalities for Oracle if the case is upheld, but that is small fry compared to what the rest of the industry could be accountable for. Java is ubiquitous in the current web-based industry we live and work in. Think of any web-based program: your VMware web client, SRM, EMC Unisphere, etc., all use Java to a greater or lesser extent; they too could be up for millions in royalities. What about all you bloggers out there, with your WordPress and Blogger sites? You, too, could be neck deep in Oracle legalities.

Make no bones about it: this is a landmark case for the US Supreme Court. So, what does Google’s petition actually ask?

In its petition filed on October 6, 2014, Google maintains that any attempt to extend current copyright law to cover interfaces would stifle innovation. It would “obstruct an enormous amount of innovation in fast-moving, high-technology industries, in part because innovation depends on software developers’ ability to build on what has gone before.

“If the Federal Circuit’s holding had been the law at the inception of the Internet age,” the petition argues, “early computer companies could have blocked vast amounts of technological development by claiming 95-year copyright monopolies over the basic building blocks of computer design and programming. By the time Google and countless other innovators even came onto the scene, others could have locked up the field for longer than most people will live.”

Google has cited as evidence for its position the landmark 1995 Supreme Court case Lotus Development Corporation v. Borland International, Inc., in which the court upheld the district court’s position that a menu hierarchy in a then-popular spreadsheet program, Quattro Pro, was uncopyrightable as a “method of operation.”

This is not prima facie evidence in support of the Google case, but it is quite compelling. The root argument, in laypeople’s terms, is that there are many ways to paint a wall, but to use a brush and roller is most likely the best method.

However, the appeals court argued that the declaration code in Oracle’s Java APIs was copyrightable, more akin to saying that the paint used to blend the new colors was protected. This is a patently stupid position, when put in these terms. It is like saying that the ingredients of a recipe are copyrightable, as well as the method. When this ruling was made, John T. Kennedy, an attorney at Dorsey & Whitnet, stated “that the Oracle Code had not merged with the functions performed by the code; that combinations of short code phases, such as those in APIs, can be copyrightable; and the fact that the code serves a final function does not preclude copyrightablity if, as the court stated, ‘the author had multiple way to express the underlying idea’ at the time of writing the code.”

As stated in my original post, this decision was made by three judges who, by their own admission, have no real understanding of the software industry. Traditionally, the whole use of APIs has been governed by the legal doctrine of fair use. This is a more much more logical position on which to base API consumption.

It is imperative that the Supreme Court rules in Google’s favour on this case. Otherwise, the whole automation industry could be thrown to the wolves. Consider PowerShell, Microsoft’s language; Vagrant (Ruby); Ansible (Python); Chef (Ruby and Erlang); and Puppet (Ruby).  Hopefully, the Supreme Court remembers the tenets that Java was developed under when it was owned by Sun Microsystems, rather than the current vulture-like approach of Oracle and its overweening legal machine. This may currently be a “Rumble in the Jungle / A Thrilla in Manilla,” but it could easily, if this goes the wrong way for the industry, become a David v. Goliath remake. However, in this remake, Goliath wins.

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Tom Howarth
Tom Howarth is an IT Veteran of over 20 years experience and is the owner of PlanetVM.Net Ltd, Tom is a moderator of the VMware Communities forum. He is a contributing author on VMware vSphere(TM) and Virtual Infrastructure Security: Securing ESX and the Virtual Environment, and the forthcoming vSphere a Quick Guide. He regularly does huge virtualization projects for enterprises in the U.K. and elsewhere in EMEA. Tom was Elected vExpert for 2009 and each subsequent year thereafter.

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