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| Authored by: PJ on Sunday, May 20 2012 @ 09:39 PM EDT |
That is how the case started, and when it was just
like that, I didn't think it was worth following,
because it was a case about two parties who each had
a point, and that's what I wrote. I figured in the
end Google would pay some money and that would be
that.
But then the lawyers got into it, and instead of
telling their simple story, the Oracle lawyers
concocted this API stuff and started talking about
$6 billion in damages for the worst collection of
patents I've seen in many a moon.
The new story was that not only are
APIs the most creative code on the planet, worthy
of a Pulitzer Prize in literature, so to speak,
but just the names themselves, the structure,
sequence and organization of them, was a
copyrightable collection. Now, that SSO stuff
comes from a case, Whelan, and when I saw that
I understood that Oracle winning would mean the
end of software development as we know it.
And the problem is this: the cases Oracle is
using, comparing software to blueprints and music
and novels, are destructive to software and should
be inapplicable, in my view, because software
is none of those things. If I say you can't
copy the most important bits of my novel, it
doesn't stop you from writing your own novel. It
doesn't shut down novel writing.
Music is a closer call, because outlawing sampling,
which the courts were foolish enough to do, shut
down some very beautiful and creative works, an
entire genre of work. There can be no Beastie Boys
ever again, and in fact they are being sued.
But the difference with software is that the best
way to write software is to build upon what others
have done and are doing. And it has to run. It
has to do what you want it to do. You
don't sit in a chair and read it, like a novel. It
has to work. If you apply copyright law to functional
code, like APIs, you destroy broad swathes of
software possibilities. And you create what Sun
was warning about with patents -- a de facto monopoly
which harms consumers and all startups, some of
whom I am sure you agree have a better idea than
what exists in the field before they arrived.
Had Oracle told its simple story, no one would have
taken sides at all in this case, I don't think. It
just would have been a simple case, a business
dispute, which would have centered on whether or
not the Sun restrictions were legal. I doubt that
they were or are, by the way. I don't think
copyright law stretches that far, and the judge has
mentioned that possibility more than once. Just
because Sun said that its terms were X and Y, that
doesn't prove that Copyright Law agrees.
But Oracle chose to go with the extravagant, and
so here we are. They'll get some money, but
it doesn't look like they'll get as much as they
otherwise would have, had they stuck to a normal
narrative in court. But when you overreach, sometimes
it costs you. The jury may award them damages for
patents. They shouldn't, in my view, but even if they
do, the '104 patent has been found preliminarily
invalid, and there is a marking issue and a date cutoff
IIRC on the '520, so there is no huge payday from that.
So it's all going to rest on the APIs, with a new
jury deciding that issue, unless the judge decides it
first with a ruling that APIs are not copyrightable,
their SSO.
And to me, that's a shame. Oracle started out with a
point that it never really should have let go of. But
sadly people don't always listen to good advice, and
now Oracle, instead of holding the high ground, ends
up looking really, really avaricious and willing to
do anything to get money. That isn't, in my view,
accurate either. So to me it is sad. But you reap
what you sow, they say. And we are watching it in
real life.
This won't be settled for years, unless there is a
settlement. But the problem is, because Oracle's
position was so extreme, it's hard to get a
settlement. Had they not been so extreme, I believe
it would have settled by now, with Google handing
over millions in the settlement.
Now? I have no idea why Google would settle now,
after Oracle has painted them so extremely to the
media. It becomes reputational, and that makes
settlements harder. It could still happen, and
from what we've seen, the blockage has been Oracle
attorneys insisting on appealing and going for the
brass ring. If I were Google, I'd keep the case
going until the other side was ground into dust
if I could, frankly. Because what happened was
wrong. But that's just me. Google lawyers are nicer
than I am, so a settlement at this point is Oracle's
best hope. But I don't see an injunction happening
now, and that was Oracle's dream. What a horrible
dream, by the way. It's why they chose patents, and
their real goal was to get Google back into the Java
fold, and then preserve the money flow, so it's both.
And I can't see Google ever agreeing to that on
God's green earth. They'll write an entirely new
language if they have to, I expect. Once people
have been slimed enough in public, it does something
to them. Trust me on this. I know.[ Reply to This | Parent | # ]
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- Oracle's story - Authored by: Anonymous on Monday, May 21 2012 @ 01:16 PM EDT
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| Authored by: jbb on Monday, May 21 2012 @ 03:57 PM EDT |
Whatever you think of Google, they were
not an innocent party in
this game. Their maneuver was a
legal one, so it's only fair that Oracle's
response will be
in court.
Before this case, it was accept case
law that APIs cannot be protected by copyright. This is what Oracle's attorney
said in this case. They told they judge that as of 1996 Lotus v. Borland
was the law of the land and it said APIs could not be protected by copyright.
When they said this they also claimed that there were later cases that refuted
Lotus v. Borland but none of these have come to light so Oracle changed
their position and later told the judge that they were asking him to "make new
law".
It's been accepted in the software industry since the BIOS clone
wars of the 1980's that APIs could not be copyrighted. In 1996 Sun's CTO
testified in front of Congress that APIs cannot be copyrighted. Oracle is
basing their entire API case on the fictitious fact that something has changed
in the legal landscape since 1996 and APIs are now copyrightable. But again,
they have not provided any evidence of this drastic sea change.
On the
contrary, the complete lack of API copyright cases in the 9th district strongly
suggests that nothing has changed and potential plaintiffs and defendants have
been in agreement on this issue since 1992 when Seva v. Accolade was
decided in the 9th Circuit. Ironically, it was this ubiquitous agreement (in
favor of what Google did) which gave Oracle a shot at taking the API issue to
trial. The judge tossed out Sun's 1996 testimony as "too old" and has been
letting Oracle proceed on the premise that both the industry standard and the
legal landscape have totally changed since then. This portion of the case
is
only going forward because of the total lack of recent precedents.
In
this country the term "legal maneuver" implies something that is within the
letter of the law but violates the spirit. This is what you are accusing Google
of doing with their clean-room implementation yet this was a standard, accepted
industry practice that predated Google's use by at least 20 years.
There
is ample evidence that both Sun and Oracle were in accord with the rest of the
industry on these issues. In fact, Oracle was trying to get Harmony approved
under the JSPA which would have granted it protection from any Sun copyright or
patent claims. Had that occurred, the API portion of this case would never
have happened. I see no evidence that Sun or Oracle changed heart on this issue
before they launched this case. ISTM that if there was any pre-case
legal maneuvering going on, it was done by Oracle to manufacture the API portion
of this case out of thin air. It was certainly not done by Google by following
a 20+ year industry standard form of development.
---
Our job is to
remind ourselves that there are more contexts
than the one we’re in now — the one that we think is reality.
-- Alan Kay [ Reply to This | Parent | # ]
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