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Google guilty of infringement in Oracle trial


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In what could be a major blow to Android, Google's mobile operating system, a San Francisco jury issued a verdict today that the company broke copyright laws when it used Java APIs to design the system. The ruling is a partial victory for Oracle, which accused Google of violating copyright law.

But the jury couldn't reach agreement on a second issue—whether Google had a valid "fair use" defense when it used the APIs. Google has asked for a mistrial based on the incomplete verdict, and that issue will be briefed later this week.

The results aren't clear going forward. Both sides are going to write briefs arguing about how to proceed from here, with Google likely arguing the verdict needs to be thrown out, while Oracle somehow tries to hang on to its win on question 1A, the fundamental question about whether Google infringed copyright.

No one knows the jury's internal deliberations, so it's speculative to guess at what led to the partial verdict. But one reason could be the unusual construction of this trial. Judge William Alsup, who is overseeing the case, ruled that the case would be decided by a jury of 12, which is large for a civil case and increases the possibility of having one or more "holdout" jurors. Alsup also ruled that the jury must decide unanimously, a requirement for criminal cases that's not always imposed on civil juries.

On two other questions—whether Google violated copyrights on certain software documentation, and a question about whether Google's acknowledged copying of a few short software functions also broke copyright laws—the jury found mostly in Google's favor. There was no infringement found regarding the documentation, but the jury did find that one nine-line function that Google acknowledged copying was infringing. (If that's all that holds up, though, there won't be much in way of damages available to Oracle.)

What is clear is that the jury believes that Google did copy something important. Even though Google's code in Android was original or borrowed from other open source code, the jury found that the Android APIs copied the "structure, sequence, and organization" of Java APIs.

Google spokesman Jim Prosser responded to the verdict quickly, saying via e-mail: "We appreciate the jury's efforts, and know that fair use and infringement are two sides of the same coin. The core issue is whether the APIs here are copyrightable, and that's for the court to decide. We expect to prevail on this issue and Oracle's other claims."

If the verdict stands, the end result is that Java may not be as open source as it was thought to be. Oracle may be able to essentially take Java out of the public domain, at least as far as its use in cell phones.

Oracle may have a leg up in the patent phase. It's already managed to sway these 12 jurors on the key question, and the same panel is now considering Oracle's allegations that Google has infringed two Java-related patents.

This is far from being a loss for Google at this point, however. Even if it doesn't manage to get Judge Alsup to declare a mistrial, the search giant has other ways it could avoid a big copyright loss.

First of all, Alsup let the jury trial move forward without making a key ruling: whether APIs are copyrightable at all. Instead, he let the evidence develop throughout the trial, and told the jury to assume that APIs can be copyrighted. But at the end of the trial, Alsup gave the lawyers a short talk indicating he may see the API issue Google's way, comparing APIs to an idea for writing a guide book from San Francisco to Monterey.

If the anti-Android verdict stands

If the verdict that Android infringed copyrights stands, it could put programmers in a difficult situation. Java is an open source language, but now it's not clear how free programmers are to use it, since Oracle has said that anyone following the Java APIs—which are basically sets of instructions about how to use Java—needs a license.

The effects beyond Android and Java are unclear. At this point, Android is the only "non-standard" implementation of Java. However, it could have a chilling effect, and if Oracle is seen as a major IP enforcer when it comes to Java, that could backfire.

"Other people will be deterred from using Java as the basis for some non-standard thing in the future," said Tyler Ochoa, a professor of copyright law at Santa Clara University. "It could be the case that Oracle wins the battle and loses the war."

For all that, Oracle won today on the key question. The company's long battle to get money out of Google and Android is looking like it stands a much better chance today. While Oracle is a large company with many operations and hardly a "patent troll," in a way, it may be able to execute a similar strategy—getting a cut of the lucrative smartphone market using intellectual property laws, even though it doesn't compete in that market. What kind of money Oracle will be able to collect will be determined in a third "damages phase" of the trial. That phase will start after the "patent phase," which begins today and may only last one week.

Overall, the situation bodes poorly for Google's legal defense of Android, which will be ongoing. Oracle's lawsuit was the most aggressive and well-funded of many intellectual property attacks against Android. But Google will to continue be involved in Android-related patent litigation, as the handset companies that make Android phones, like Samsung and HTC, are being sued by Microsoft and Apple in a kind of "proxy war" against Android.

Despite these legal attacks, Android is experiencing explosive growth; a Google executive testified last week that 750,000 Android phones are being activated each day in 2012. That's up from 160,000 per day in 2010.

What happens next

After the partial copyright verdict was read, Judge Alsup launched right into the patent phase without even giving a break. Right now, the jury is watching a video about patents and patent lawsuits produced by the Federal Judicial Center, which is commonly shown to patent juries. Court will probably adjourn after opening statements today, and witnesses will begin testifying tomorrow, possibly including a repeat show by Jonathan Schwartz, the ex-Sun CEO. The patent phase is expected to be concluded in as little as one week.

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