When it comes to Oracle v. Google on the subject of the latter’s alleged misappropriation of Java’s APIs in the Android operating system (aka: the now infamous API copyright case), a federal appeals court has hammered what appears to be all but the last remaining nail into the coffin that could seal Google’s fate. The next step in the process is for the courts to determine the damages that Google must pay to Oracle; a potentially staggering sum that has been suggested could reach as much as $9 billion.
This is the sort of news that clickbaiters love to jump on by writing something like the sky has officially fallen on the Android community and everyone should be running for cover. ZDNet’s blog network (which I co-founded with Dan Farber) has published its own hyperbole declaring the “P” in "Android P” to stand for “poison." According to ZDNet, “Android is now officially a liability to any company that has been involved in the mobile operating system. Google cannot possibly indemnify most of them. The rats are going to jump off the sinking ship.” I nearly spit my coffee out when I read that bit of uninformed garbage.
"We are disappointed the court reversed the jury finding that Java is open and free for everyone," a Google spokesman said in a statement according to CNN. "This type of ruling will make apps and online services more expensive for users. We are considering our options.”
So, let’s put this news into perspective. What exactly does it mean?
First, to all of you OEMs, developers, and other members of the Android community: You are not “rats.” Second, Android is not at this point "officially a liability to any company that has been involved in the mobile operating system.” I don’t think it will ever be. At least not any more than has already been accounted for (see below). Third, other than acquiring Oracle (could you imagine a match that’s anything more like oil and water?), Google does in fact have options. So, let’s enumerate those options and then discuss any other implications of the latest progress in this long-running legal saga.
What Are Google’s Options?
One of the complications in this case has to do with the open source nature of Java. If Android didn’t exist and Google decided today that it was going to build something called Android with Oracle’s Java, the two companies would not be litigating this case. But, without a license, Google started building and basing Android on Java just prior to Sun (later acquired by Oracle) having open sourced it. To better understand Google’s options, I reached out to Bruce Perens. In addition to being the co-founder of the Open Source Initiative (the organization that officially blesses open source licenses as being truly open source), Perens is the author of the original definition of open source (the OSD or Open Source Definition) and is an expert on software law.
A Supreme Option
According to Perens, just because the Supreme Court refused to hear the case before doesn’t mean that Google can’t re-petition the Supreme Court. “This [last round in court] was a new appeal and I think they get a chance to take it to the Supreme Court again” says Perens. Referring to the legal process whereby the Supreme Court certifies a lower court’s finding, Perens said that “Every time a lower court rules, you have the ability to file for a writ of certiorari.” In other words, this week's new ruling by the appeals court has triggered a new opportunity for Google to petition the Supreme Court.
Wait for “Sentencing?”
Now gored by its opponent, exhausted from battle, and looking to move on with its life, Google could simply roll-over and wait for the next court to determine the extent of the damages that Google must pay to Oracle. This is the part where pundits are tossing around the $8.8B figure. However, the likelihood of that happening is slim to none because the damages would only be one part of moving on (which both companies should want to do). The courts have sided with Oracle’s argument that the Java in Android is delivering value to Google. Until Android is fully weened off of Java (a work in progress), that Java will continue to deliver value which means that beyond the damages,...
Google Would Still Need a License to Java
to avoid ending up in court again. Settling damages is one thing. The court is unlikely to be concerned with how the two companies conduct business with one another moving forward. Should the Supreme Court option turn out to be a non-option (by way of Google’s decision not to pursue it or another Supreme Court rejection), Google will probably approach Oracle to negotiate a package deal that includes two primary components. First, it will settle the damages according to some publicly undisclosed sum. Second, Google will get a license to Java to keep Oracle from any further shaking-down of Google and its friends in the Android ecosystem (OEMs, developers, etc.).
This is where things could get really interesting. Given everything that’s happened so far, it appears as though Oracle has the upper hand.