Oracle lose Google battle but patent wars will run and run

NET RESULTS:DEVELOPERS around the world – though maybe not European government development authorities – will breathe a sigh of relief now that a US judge has decided that Oracle cannot exert copyright against Google over software tools used to develop the Android mobile phone platform.

As this column discussed recently, the core issue in the long-running Oracle/Google lawsuit of whether a company can copyright APIs – application program interfaces, or the bits of software that enable developers to connect their programs to other software programs – goes to the heart of what developers do and how they do it.

If APIs were deemed subject to copyright, developers would need to get permission, or very likely, pay, for the ability to develop compatible programs for other software products or platforms. That would mean not only higher development costs and a far more restrictive software development environment, but also almost certainly greater costs and less flexibility for users of software.

The potential impact extended as far as national economies. The case had created serious worry for US companies as well as software industry lobby groups because they feared it could make the US a very unattractive location for developing software, and a more costly location in which to use it.

The fact that the European courts had decided concurrently that APIs generally were not subject to copyright, only added to the anxiety. On the other hand, European countries must have secretly hoped for a definitive response in the Oracle case that would see APIs copyrightable in the US.

Such an outcome would have made Europe a very attractive location for software development and for companies to relocate to.

Still, perhaps all is not yet lost from the (rather selfish) point of view of those who would love to see a two-tier software development environment that would benefit Europe. US District Court Judge William Alsup carefully clarified in his ruling that he was only ruling in reference to the use of 37 Java APIs (which Oracle owns because of its acquisition of Sun Microsystems) in this particular case. Not, he said, on the larger issue of whether companies can copyright software APIs. “This order does not hold that Java API packages are free for all to use without licence. It does not hold that the structure, sequence and organisation of all computer programs may be stolen,” he wrote. “Rather, it holds on the specific facts of this case, the particular elements replicated by Google were free for all to use under the copyright act.”

Oh dear: not very reassuring. Whereas the European decision came decisively from the the Court of Justice, which stated: “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.”

But it could be years before the core issue arises again in the US – if ever. I suspect most judges will not want to make a sweeping decision and would instead focus on the details of any particular cases before them.

You might think Oracle would perhaps take at least a little breather before jumping back into the courts. But no. It’s right back in swinging, this time at a target no one is likely to love – a so-called “patent troll” firm. Patent trolls are shell companies that produce nothing themselves. Instead, they buy up portfolios of patents, then use them to threaten or sue companies and individuals.

In this case, Oracle is arguing in a court in Wisconsin that patents held by the troll, Lodsys, be invalidated. Lodsys – a shell company based in Texas, whose backers are unknown – has, according to Oracle’s suit, sent threatening letters to Oracle customers stating it owns the patent that covers an Oracle web chat feature the customers use.

Apple has also taken Lodsys to court over patent claims against iPhone and iPad app developers. Google is similarly pursuing a case against Lodsys, in support of Android developers, regarding the same patents. In effect, these big companies are taking on the burden of a lawsuit their smaller clients and third-party developers would not be able to afford. The end goal is to muzzle, even possibly fatally wound, Lodsys.

Many in the software world would cheer on such a victory. Probably as many as would have detested seeing Oracle win the API war with Google.

Judges in Silicon Valley make deeper, long-lasting tech law: Wired, page 7