Wednesday, 9 May 2012

Patent Wars: Google V Oracle Enters Next Stage

The destructive patent wars between Google and Oracle have entered the next phase as the jury decide whether or not Google infringed on Oracles's patents. It did decide that Google infringed on Oracle's copyright in the Java APIs it used for Android but couldn't decide on whether or not it was fair use. Do they not realise that if it is fair use, there's no infringement? It gets worse...

It's important to note that Oracle acquired the patents in 2010, after acquiring Sun Microsystems, the maker of Java. Google built a new version of the Java platform called the Dalvik virtual machine for Android, which Oracle claims violated both its patents and its copyrights. There's a fly in the ointment here:

Sun, Java’s parent compnay had open-sourced Java under the GPLv2 in early November 2006.
What that means, of course, is that even if Oracle is ruled right in every particular about the copyright issues none of it matters. Sun, Java’s creator and previous owner, has opened Java up for anyone to take the code and do with what they wished so long as they obeyed the rule of the GPLv2. - ZDnet

Does IP rights trolling threaten OpenSource?

Andrew Binstock of software development blog Dr. Dobbs warns:
...if the jury sides with Oracle that the copyrights in the headers of every file of the Java source base apply specifically to the syntax of the APIs, then Oracle can extract payment and penalties from Google for having implemented those APIs without Oracle's blessing (or, in more specific terms, without a license) Should this come to pass, numerous products will suddenly find themselves on an uncertain legal standing in which the previously benign but now newly empowered copyright holders might assert punitive copyright claims. Chief among these would be any re-implementation of an existing language. So, Jython, IronPython, and PyPy for Python; JRuby, IronRuby, and Rubinius for Ruby; Mono for C# and VB; possibly C++ for C, GCC for C and C++ and Objective-C; and so forth. And of course, all the various browsers that use JavaScript might owe royalties to the acquirers of Netscape's intellectual property.

Since the US government is pushing IP rights as the cornerstone of the US economy and attempting to persuade the rest of the world to adopt its flawed approach as a growth strategy, there is a very real threat that this might be allowed to happen. And if it does, OpenSource is doomed and everything we do online will be licensed or not done at all.

The Electronic Frontier Foundation explains it thus:
Setting aside the practical consequences, there’s a perfectly good legal reason not to treat APIs as copyrightable material: they are purely functional. The law is already clear that copyright cannot cover programming languages, which are merely mediums for creation (instead, copyright may potentially cover what one creatively writes in that language).  Indeed, the European Court of Justice came to just that conclusion last week. (Ironically enough, when Sun Microsystems was an independent company, one of its lawyers wrote amicus briefs arguing that interoperability concerns should limit copyright protection for computer programs.)

Improvidently granting copyright protection to functional APIs would allow companies to dangerously hold up important interoperability functionality that developers and users rely on everyday.
Now can you see what the problem is? We can only hope that common sense prevails. IP law reform is urgently needed and couldn't come at a better time. Meanwhile, Google is moving for a mistrial due to the jury deadlock over the fair use of the API code used in Andoid.

Round two

The two remaining patents — U.S. Patents 6,061,520 and RE38,104, aka ’520 and ’104 — are related to the underpinnings of the Java virtual machine, a piece of software that runs applications written in the Java programming language. Oracle will have to prove not only that Google infringes on the two patents with the Dalvik virtual machine, but that Google was “willfully blind” in doing so, meaning that the search giant was aware it was infringing. In addition, Oracle plans to prove that Google engaged in “induced infringement” because it then distributed Android to third parties, such as handset manufacturers Samsung and Motorola. - Wired

The second round began earlier today. In opening statements, Oracle's lawyer said that Android's "Dalvik" virtual machine infringes two patents that originated at Sun but are now owned by Oracle, US Patents No. 6,061,520 and RE38,104.

Google's lawyer Robert Van Nest countered with arguments that Oracle was using patents that were applied for in the late '90s, Google built Dalvik on its own, none of the engineers working on it even knew about the Sun/Oracle patents now being asserted, and "No one heard from Oracle [about these patents] until July of 2010, after Mr. [Larry] Ellison had tried and failed to enter the smartphone market."

The assertion that this case is just sour grapes about failing to score in the smartphone arena gains traction when you consider Larry Ellison's testimony last month:
Neither an Oracle phone or an acquisition reached fruition after Oracle decided entering the smartphone market was “a bad idea”, in part because RIM would be too expensive to buy. - The Register
Google has already argued that this is all moot anyway because Java-based smartphones never really took off.

Could this affect people in the UK?

Probably not.
The Court of Justice of the European Union has ruled in a similar case, SAS Institute Inc. v World Programming Ltd, that "neither the functionality of a computer program nor the programming language and the format of data files used in a computer program" are expressive enough to qualify for copyright protection.

"To accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development," the court said. - InformationWeek
Computer Associates v. Altai sets a precedent for copyright in software in the United States, which hopefully the judge will follow. Anything can happen, though, so it's going to be a tense week as we wait for the final verdict.

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