Switch to Open Source Java Limits Google Copyright Exposure

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By Tony Dutra

Dec. 30 — Google Inc.'s decision to move to an open-source platform for support of the Java software functionality—key to its Android operating system for mobile phones—could well eliminate its future liability for infringing Oracle America Inc.'s copyright.

The switch from Oracle's licensed platform comes in the midst of a five-year court battle, still in progress in the U.S. District Court for the Northern District of California, but after Google's early win was overturned.

Oracle America Inc. is still seeking damages for infringement by smart phones and tablets using the pre-switch Android versions, but it has licensed “OpenJDK” to the open-source community royalty-free.

“In our upcoming release of Android, we plan to move Android's Java language libraries to an OpenJDK-based approach, creating a common code base for developers to build apps and services,” according to a “statement on the record” sent to Bloomberg BNA Dec. 30 by a Google spokesperson. “Google has long worked with and contributed to the OpenJDK community, and we look forward to making even more contributions to the OpenJDK project in the future.”

Oracle originally sought more than $1 billion in damages and recently asked the court to supplement that request because of the growth in Android's market share since the case began .

A Google spokesman declined a request for comment on the case, dubbed the “World Series of IP Rights” by Judge William H. Alsup. Oracle Am., Inc. v. Google Inc., No. 3:10-cv-03561 (N.D. Cal.).

Lawsuit Status

Java provides software application developers a way to write code efficiently. If an application requires a basic function like displaying information or doing calendar operations, the developer can write one line of code requesting that function from the Java “library.” To compare Java to conventional libraries, functions are like books and the information directing a reader to books' locations—e.g., the Dewey decimal system—is the “declaring code.”

Oracle's copyright at issue in the case is on the declaring code. Google wrote all the “books” itself, but copied certain “packages” of the declaring code so that Android programmers wouldn't have to rewrite applications that worked on other phones.

The Northern District of California ruled that the Java packages were not protected under copyright law (106 DER A-8, 6/4/12), but the U.S. Court of Appeals for the Federal Circuit overturned that decision in May 2014. Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 110 U.S.P.Q.2d 1985 (Fed. Cir. 2014) (91 DER A-19, 5/12/14).

In June, the Supreme Court heeded the government's advice to let the Federal Circuit's decision stand (125 DER 125, 6/30/15).

The case returned to district court, where Alsup will now consider Google's fair use defense, which would remove its liability for infringement. Google argues that exclusive copyrights in the Java library would generally interfere with competitors' ability to make interoperable technologies. Another jury trial is tentatively set for May 9.

Implications of Open Source

As many tech blogs are reporting, Google could have switched to OpenJDK five years ago and avoided the court case. But the company had succeeded in the litigation up to May 2014, and it had reason to believe the Supreme Court would find the software copyrightability question compelling.

The open-source solution comes with a price, as well: Oracle gave OpenJDK to the open-source community under a license that requires its users to contribute back any enhancements.

The company's statement on the record indicated that the restriction is not a concern. “As an open-source platform, Android is built upon the collaboration of the open-source community,” it said.

To contact the reporter on this story: Tony Dutra in Washington at adutra@bna.com

To contact the editor responsible for this story: Mike Wilczek in Washington at mwilczek@bna.com

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