Aurich LawsonDespite a final verdict, the recent Oracle v.
Google trial leaves plenty of questions about the future of APIs, fair use, copyright, development, and more. While their views do not necessarily represent those of Ars Technica as a whole, our staffers wanted to take a look at the outcome and potential ramifications from both sides.
Below, Joe Mullin says Google’s win sends a powerful message against a familiar legal tactic.
Elsewhere, Peter Bright argues that software is about to suffer. You can also find guest op-eds from professor Pamela Samuelson (pro-Google) and attorney Annette Hurst (pro-Oracle).
The Google/Oracle decision was bad for copyright and bad for software
Google’s fair use victory is good for open source
Op-ed: Oracle attorney says Google’s court victory might kill the GPL
How Oracle made its case against Google, in pictures
Oracle slams Google to jury: “You don’t take people’s property”
View all…We may never know with certainty why the jury in Oracle v.
Google decided in Google’s favor, but I can make a pretty good guess.
Like the jury, I’m no expert.
I’ve been reporting on technology law for years, but becoming an experienced journalist is really just mastering the fine art of non-expertise. I have a pretty good conceptual idea of what an API is, derived entirely from listening to more knowledgeable people talk about this case.
But if you showed me a block of code, I couldn’t pick out the APIs or “declaring code” at issue.
However, you didn’t need to be a computer expert to see through Oracle’s case.
Google and Oracle offered competing narratives about the early history of smartphones. Oracle tried to win by re-writing that history, and it just didn’t add up.
The brave new world it presented was contradicted most powerfully by the former CEO of Sun Microsystems, Jonathan Schwartz.
In the end, Oracle could not be saved, even by their crack team of JD’s and PhD’s.
By the end of trial, their case looked, to me, like an intellectually bankrupt loser’s lament.
It was a hell of a show, though. Oracle was well-served by the new team of lawyers brought in from Orrick, Herrington & Sutcliffe.
The firm’s New History of the Smartphone was a story well told. From the first minutes of opening statements, their case was simple and sharp, folksy and forceful.
“I always have to think when I write this out, because I’m not used to writing billions,” said Oracle lawyer Peter Bicks as he wrote out “3,000,000,000” on a white poster for the jury. Google had “made a deliberate business decision” to “copy Oracle’s software illegally” and had reaped “huge profits,” he said.
It was a simple argument—and a dangerous one.
Accusing someone of wrongful copying has the visceral draw of a school-yard taunt, yet it’s a crime that’s well-understood, and seriously punished, in the adult world. Bicks knew Google would point out the APIs in question were just one-tenth of one percent of the massive Android codebase; he deftly belittled this argument before it was even made.
“‘We left a lot behind,’ is what you’ll hear,” said Bicks, channelling his opponent. “‘We took your property, but we didn’t take all of it.'” This would be Google’s “fair use excuse,” he told the jury.
The 11,000 lines of code that Google would compare to a restaurant menu were powerful and creative works, Bicks assured them.
This was a story about hard work and just rewards. Just don’t copy stuff.
Is that too much to ask? Do your own work.
Google’s lawyers would have to explain to a non-expert jury that, in the software industry, some kinds of copying are truly allowed, even vital.
It’s a more complicated argument that requires some understanding of industry practices, and having to make it put Google at a disadvantage.
The trial also had a fundamental structure that favored Oracle. The jury was regularly reminded, by a judge in black robes, that Oracle’s code was copyrighted.
The mere existence of a high-profile trial—the judge and his assistants, the room full of dark-suited lawyers, the coterie of reporters in back taking notes, the cryptic mention of “billions” at stake—it all drove home another point, a kind of subtext that favored Oracle.
The Java APIs at issue here were Very Important Things.
All in all, Google had a high mountain to climb.
If I’d been forced to make a bet on which side would win the minute after opening arguments, I would have put my money on Oracle.
The 300-lb linebacker in Google’s defense play was Schwartz, the ex-CEO of Sun Microsystems who was Google’s second witness.
To my mind, it’s impossible to imagine Google winning without Schwartz’s support.
If you don’t understand code, it’s still possible to understand Sun’s economics, as explained by Schwartz.
Creating Java, a free and open software language, was a boon to Sun’s hardware business.
The language was free for starving college students and free for millionaires—it was good for the world and good for Sun’s bottom line. On the stand, Schwartz made it crystal clear: the “free and open” Java language included use of the 37 APIs that Oracle had, literally, made a federal case out of.
From that moment on, Oracle was put on the defensive.
In Schwartz’s cross-examination, Oracle gave the first glimpses of the alternative history it would try to piece together for the jury. There was no dispute that Schwartz had publicly celebrated Android, welcoming the new software in his 2007 blog post.
But hadn’t Schwartz written that Android was “lame” in an e-mail? Didn’t he write privately that Google was a company that played “fast and loose” with licensing rules, that it had little regard for copyright law?
Yes, he’d done all that. He admitted it. But it was far from the “gotcha” moment that Oracle wanted.
Schwartz didn’t come across as an altruist or an angel; he was a competitive guy, having a difficult time at a company that was flailing on his watch. He badly wanted a deal with Google to work together on Android, but it didn’t happen.
The few e-mailed potshots he took at Google didn’t make Schwartz look like a hypocrite; they made him look real and frustrated and honest.
The unpredictability of asking a jury about the amorphous rules of fair use in copyright law also made for an interesting trial. On one level, the case was about the specifics of Google’s behavior. On another level, it was about what it meant to do business “the right way” in America. Who were these men—and they were largely men—who had made so much money, so quickly? Android chief Andy Rubin talked about “wanting to win.” On cross-examination, he was forced to acknowledge his own sizable share of the geyser of wealth produced by Google—$60 million in bonuses if he could deliver Android and deliver it fast.
The effort to paint Rubin as someone in a greedy rush didn’t hold much sway in the end. Despite his private frustrations, Schwartz had given Google an “A” for fair play without reservation. That meant Oracle had little choice but to engage in ritual denunciations of the former Sun CEO, which continued throughout the trial.
In closing arguments, Oracle lawyers showed the jury a slide depicting the “two faces of Jonathan Schwartz.”
The continued attempts to tear him down, like entering into evidence an Internet article naming him as one of the “ten worst CEOs,” ended up looking like cheap put-downs.
Schwartz’s answer about the articles could be understood by anyone who’d worked hard in tough times: the economy was in a recession, Sun was failing, and people were hurting. “I was upset, too,” Schwartz said.
Schwartz testified about his successes and failures, his company’s competitions and compromises. He didn’t describe a perfect world; he described something that sounded like reality.
Some projects don’t work out; some deals can’t be done; sometimes the other guy makes a whole lot more money than you, whether he deserves it or not.
Sometimes, life isn’t fair.
But Oracle, when its turn came to mount a case, was not about to accept this view.
Bicks’ questioning clearly conveyed his client’s righteous anger, the feeling of someone cheated of their rightful inheritance.
And Oracle executives painted a world in which the business of licensing Java to device-makers would be absolutely booming, if only those darned Android kids hadn’t taken their sinister shortcuts.
Believing in such a world requires a rejection of some basic business reasoning, quite outside knowledge of coding. Oracle CEO Safra Catz got on the stand and complained that because gadget-makers like Huawei and Amazon could get Android for free, they demanded massive discounts for Java mobile. Licensing deals that once would have been worth $40 million might have paid just $1 million post-Android, she said.
Catz’s testimony was quite stunning.
She, and other Oracle executives, openly admitted they didn’t have a plan to actually create smartphones—but they believed in their right to keep owning some significant piece of “property” in the mobile universe, collecting payments while their product’s popularity declined.
Surely, no one likes competing with a cheater, which is the position Catz said she was in. Oracle argued that Google took an illicit “shortcut,” but even Oracle couldn’t deny that Android was something quite new and appealing. Leaving aside the iPhone, the feature-phones of 2006 simply didn’t look or act like the Android smartphones of 2008. Oracle’s “Java phone” project never even got off the ground. Oracle executives were complaining that Google had doped to win the race—but they hadn’t even shown up to P.E. class in years.
In the end, Oracle’s argument looked less like a complaint about unfair competition and more like a complaint about the mere existence of competition, complete with Hollywood’s trademark complaint about all things Internet-y: you can’t compete with free.
Though it’s become one of the most clichéd terms in Silicon Valley, it applies here—Google had “disrupted the market” for Java licensing. Google gave away free stuff that connected people to the Internet and tacked advertising onto it. Like online users, companies could pay for products like Java if they wanted to—but it turned out, they’d rather not. The “free stuff” with ads strategy is an aggressive business strategy, one that’s a pain to compete with. It can lead to products that are more garish than elegant, but it also has a 200-year-old tradition of being legal and fair.
For American readers and publishers, it dates back to the penny press.
Oracle’s experts and licensing execs drove their heads deeper into the sand, suggesting that things in feature-phone land were fine and dandy.
But that view strikes even a casual observer of tech as way off-base. One hardly needed a degree in computer science to remember the iPhone hitting the cell phone business like an earthquake.
Google was trying to catch up quick; Oracle and its Java-based system were much further behind.
KIMIHIRO HOSHINO / AFP / Getty Images.
Oracle CEO Safra Catz, speaking at Oracle OpenWorld in 2011.
KIMIHIRO HOSHINO / AFP / Getty Images.
Oracle CEO Safra Catz, speaking at Oracle OpenWorld in 2011.
Noah Berger/Bloomberg via Getty Images
Jonathan Schwartz in 2004 at the JavaOne conference. (Photo by Noah Berger/Bloomberg via Getty Images.)
A kinder, gentler Google?
Bicks had made a powerful promise in his opening: that Google’s wrongful intent, its executives’ greed and desire to win, would be shown by its own documents. “Their words, not mine,” was the mantra he repeated throughout the trial when showing off Google’s internal notes.
Instead of a damning portrait of a cheater, however, the documents actually showcased a Google that was in some ways more appealing, more trustworthy, than the information behemoth we interact with today.
Yes, Rubin got rich; yes, the Android programmers were successful, likely beyond their wildest dreams.
But in these early times, their e-mails had no tone of triumphalism.
These were the notes of a plucky underdog, a group of engineers who knew they were well behind Apple.
They knew their project could well have ended up in Google’s heap of failures, another Knol or Buzz.
Android programmer Dan Bornstein wrote long e-mails, some of which he perhaps regrets, caveated with these words: “HUGE DISCLAIMER: I AM NOT A LAWYER.” But there were no smoking guns.
For the most part, the e-mails showed Bornstein following the rules as he saw them, which were pretty much how the whole industry saw them.
Oracle’s simple narrative about “copied code” ran into another all-American rule: you don’t get to change the rules at halftime.
Google’s e-mails did reflect some uncertainty around IP licensing, which could be expected from any large group of engineers involved in such a massive endeavor.
But no Googler thought the company had done wrong or had cheated Sun—and it was Sun who created Java, Sun who owned the relevant IP. Yes, Android chief Andy Rubin at one point said “java.lang APIs are copyrighted” in an e-mail where he seemed more focused on casually badmouthing a competitor’s idea.
But Oracle had pored through a mountain of internal communications, and if that was as good as it got, it wasn’t much.
When Oracle lawyer Annette Hurst suggested that Rubin’s belief that APIs were free to use was no more than “folklore and industry stories,” she had little to back it up. Rubin was utterly plausible. You could believe that he was right or that he was wrong, but it seemed clear that Google’s people at least believed in what they were doing.
And if they were doing the wrong thing, one would expect Sun would tell them so. How could Google be trespassing on Sun’s front lawn when the CEO was effectively waving at them from the window?
Of course, after Sun’s sale to Oracle, Sun didn’t own the copyrights anymore.
There was a new Java boss in town.
In Oracle’s view, Google was way over the sidewalk, having usurped the front lawn, the garage, and half the living room without so much as knocking on the door.
But Oracle’s simple narrative about “copied code” ran into another all-American rule, and this one would favor Google: you don’t get to change the rules at halftime.
Catz summed up with an anecdote in which she ran into Google General Counsel Kent Walker at a bat mitzvah, and she (as she recounted) was informed that the “old rules didn’t apply” at Google. With that, she hoped to encapsulate the entitlement mentality at a company which, more than any other, has been flooded with Internet dollars. She scolded Walker, biblically: “Thou shalt not steal!”
That’s when I realized: Oracle’s lawsuit bore some strong similarities to a well-executed patent troll case.
To be clear, I am absolutely not calling Oracle a patent troll.
The company employs thousands of people and provides real products and services.
But I’ve watched plenty of intellectual property trials, and it’s impossible not to see the major overlaps in tactics and storytelling.
While this trial was about copyright, it’s telling that Oracle’s original lawsuit also included patents. Like patent trolls, Oracle bought some “rights” (in this case from Sun) that no one really knew existed. Oracle then turned its legal firepower on a vastly successful company and tried to induce a jury to believe in a different reality, one where “we” failed because “they” cheated.
Their “building” is infringement; their “invention” is theft.
When starting an argument over an invention becomes as lucrative as actually inventing things, we’re headed down the wrong path. Yet ensuring the power and prominence of such disputes seems like it’s practically the raison d’etre of the Federal Circuit, which singlehandedly created the whole API copyright mess to begin with.
For a decade now, most copyright and patent lawsuits have been filed by “trolls,” repeat litigants who hope to make money from the legal system.
These entities claim society’s idea-space and rent it back to us.
Google reminds us that the same alternate histories spun in court by shadowy shell companies can, and will, be used by the rich and powerful. I’d like to be optimistic, but these are powerful fantasies and lucrative for those in the system. Prosecuting and defending them draws in streams of our brightest and best-educated.
I fear they will be with us a long time.
More from the Oracle v.
Read the Ars Technica explainer on the trial’s significance
Jury selection took place on Monday, May 9
Lawyers gave opening statements for Oracle and Google on May 10
Ex-Google CEO Eric Schmidt testified on May 10 and 11
Ex-Sun CEO Jonathan Schwartz told jurors he had no problem with Android on May 11
Android chief Andy Rubin testified on Thursday May 12
Top Android programmer Dan Bornstein testified on May 13 and May 16
Google expert Owen Astrachan discussed APIs and fair use on May 16
Oracle CEO Safra Catz testified on May 16 and May 17
Sun’s top Java architects and Oracle’s expert spoke to the jury on May 17
Sun’s Java licensing execs, an Apache programmer, and an economist testified May 18
Jurors heard Alphabet CEO Larry Page and Google’s rebuttal case on May 19
Closing statements for Google and Oracle took place May 23 (see Oracle’s visuals)
The jury returned a verdict in Google’s favor on May 26