Having lost its patent/copyright case against Google in somewhat spectacular fashion, Oracle is now facing the possibility of having to also pay Google over $4 million in legal fees. Google has submitted its calculation of legal fees that it's seeking from Oracle, and it totals up to $4,030,669. Of course, this case is heading for appeal, so this number may be meaningless. However, it does suggest that Oracle -- which once seemed to believe this case might bring it billions of dollars -- may quickly discover that it's costing an awful lot instead...

Having lost both its patent and copyright claims against Google in somewhat spectacular fashion (remember when it was claiming billions in damages?), Oracle recently agreed in court that it was fine with receiving $0 in statutory damages for the short snippets of code that were copied. This even took the judge by surprise, who asked if there was a "catch" he should be aware of. The issue is one that is really more procedural than anything else: everyone realizes that the only thing that matters now is what happens in the appeal, and if Oracle happens to win the appeal, it can revisit the damages question. Either way, however, it is a bit symbolic to see Oracle "accept" $0 in damages. And, of course, there is still one more part to this round in district court, which is that Google is expected to seek attorneys' fees from Oracle as well -- meaning that Oracle's plan to get billions from Google may turn into not just a loss, but a really, really expensive loss.

Well, well. A few weeks ago, the jury in the Google/Oracle lawsuit ruled that Google infringed on a very small amount of Java API, but as we noted it was still an open question (and one for the judge to rule on) whether or not APIs were even eligible to be covered by copyright. In the second phase of the case, the jury completely rejected the idea that Google had infringed on Oracle's patents. So all that left was the 37 APIs. And that tiny "win" for Oracle is now gone as well, as the judge has ruled that those particular APIs are not covered by copyright:

So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical. Under the rules of Java, they must be identical to declare a method specifying the same functionality — even when the implementation is different. When there is only one way to express an idea or function, then everyone is free to do so and no one can monopolize that expression. And, while the Android method and class names could have been different from the names of their counterparts in Java and still have worked, copyright protection never extends to names or short phrases as a matter of law.

It is true that the very same functionality could have been offered in Android without duplicating the exact command structure used in Java. This could have been done by re-arranging the various methods under different groupings among the various classes and packages (even if the same names had been used). In this sense, there were many ways to group the methods yet still duplicate the same range of functionality.

But the names are more than just names — they are symbols in a command structure wherein the commands take the form java.package.Class.method() Each command calls into action a pre-assigned function. The overall name tree, of course, has creative elements but it is also a precise command structure — a utilitarian and functional set of symbols, each to carry out a pre-assigned function. This command structure is a system or method of operation under Section 102(b) of the Copyright Act and, therefore, cannot be copyrighted. Duplication of the command structure is necessary for interoperability.

As some have pointed out the ruling is somewhat narrowly focused just on these 37 APIs, but the principles involved in why those 37 APIs are not copyrightable certainly will apply to plenty of other APIs as well. The ruling itself (embedded below) is pretty thorough and detailed. We had noted earlier that Judge Alsup had admitted that he'd learned to code Java in order to better understand the case (and that he'd had a history of knowing other coding languages as well) -- and it shows. Rather than using braindead broad analogies that don't make much sense, as we see all too often in court rulings, Alsup gets to the heart of the matter and clearly understands what an API is and how it works. His ruling is actually a decent primer on some parts of code for those who have never coded.

From that, Alsup points out just how ridiculous this entire case has been -- and specifically notes that he's explaining the level of ridiculousness of Oracle's position for the benefit of the appeals court who will surely hear this case once Oracle appeals (and which almost certainly will be staffed with judges not nearly as clued-in as Judge Alsup).

Oracle has made much of nine lines of code that crept into both Android and Java. This circumstance is so innocuous and overblown by Oracle that the actual facts, as found herein by the judge, will be set forth below for the benefit of the court of appeals.

He goes on to explain not just how insignificant the situation was, but he details how it happened and why it's crazy to consider it worthy of a copyright infringement suit. It's a pretty complete smackdown of Oracle's position.

Again, it is quite likely that Oracle will appeal, even though this ruling is so firm it might be smarter for Oracle to issue a giant apology to the tech community and just get on with doing business. That seems unlikely, of course, as Oracle probably hopes to find less knowledgeable judges on appeal. One hopes, however, that the appeals court judges will recognize the very, very thorough nature of Judge Alsup's ruling, and reject any appeal as well.

Remember back when Oracle was claiming that Google owed it billions of dollars for infringing on Oracle patents and copyrights? Yeah. Forget that. The jury just said that there's no patent infringement at all and the judge has dismissed the jury. All that's left in this phase of the case is for the judge to make a determination over the copyright issue -- and if he decides APIs cannot be covered by copyright, Oracle will have a complete and total loss. Of course, Oracle will almost certainly appeal, but this case has turned into something of a complete disaster for the company.

Groklaw has the details with "no" answers across the board:

Clerk:

Question 1: has Oracle proved by preponderance of evidence that Google infringed?

Claim 11: not proven
27: no
29: no
39: no
40: no
41: no

Question 2: not proven

1: no
20: no

Question 3: no answer, no response, not applicable.

There was some indication last week that the jury in the Oracle/Google lawsuit was having trouble coming to agreement, and it appears that despite some effort to try to fix that, in the end the jury remained deadlocked on a bunch of issues. However, it did decide that Google infringed on Oracle's copyright in the Java APIs it used -- but what the jury punted on was whether or not those uses were allowed via fair use. This seems a bit odd, since fair use, despite supposedly being a defense, still means that there was no infringement. So, basically the jury said that Google may have infringed... which is pretty useless for a jury. Separately, the jury rejected the idea that Google infringed on the documentation of the APIs. It also found that Google did not infringe on the comments for some of the code, but did infringe on using rangeCheck in two files. That said, the jury again punted on whether or not the use was de minimis (which, again, would mean non-infringement).

According to The Verge (who is in the court room), the jury also wasn't buying the claim that Google relied on Sun's statements saying that Google's use was okay. The jury's main problem with Google's claim here wasn't that Sun hadn't made clear that the use was acceptable. It was that there wasn't much evidence that Google actually relied on such claims from Sun. I can understand why the jury might claim this, but I wonder why it would matter. Given that Sun made clear that Google's use was acceptable, in what world could you later turn around and claim that its use was unacceptable?

Either way, the fact that the jury couldn't come to an answer on the fair use/de minimis questions effectively sinks the entire process. Google immediately asked the judge to declare a mistrial, and the judge has supposedly asked both companies to prepare arguments over whether or not a mistrial should be declared, so this is far from over.

Julie Samuels has a fantastic piece over at Wired using the Oracle v. Google case to explain why patents simply don't make any sense in the software world:

For starters, software often does not require the type of heavy investment that should result in a 20-year monopoly. Instead of expensive laboratories or years of testing for FDA approval, for example, you often just need a coder and a computer. Even complex programs don’t require 20 years of exclusivity to recoup their investment. Software patents are often not even necessary for successful businesses: Facebook and, yes, Google — never relied on software patents to grow their early businesses.

Software patents are also notoriously vague and difficult to understand, making it impossible for small inventors to navigate the system without expensive legal help. And that brings us to the most dangerous aspect of software patents: litigation.

It turns out that software patents are nearly five times more likely to be the subject of litigation as other patents. In fact, lawsuits surrounding software patents have more than tripled since 1999, and they have become part of the price of doing business in America. Take Spotify. After realizing much success in Europe, Spotify launched its U.S. product in July, and just weeks later it found itself facing a patent suit.

Of course, tons of software developers recognize this implicitly. I know an awful lot of software developers in Silicon Valley. I can't think of a single one who thinks patents are a good thing or even remotely useful (and this includes many developers who have patents). In development circles, it seems that nearly everyone thinks patents are a waste of time and money. And that's because software doesn't work the way that the patent system envisions.

Perhaps most troubling, the patent system fails to recognize how people create and use technology. Software is fundamentally situated as a building-block technology. You write some code, and then I improve upon it — something the open source community has figured out. Google’s use of Java in its Android OS also demonstrates how innovators create, by making its own product and and incorporating some elements of the Java language (which, incidentally, Java’s creators have a history of supporting). And when those two come together, it results in an incredibly popular product, here the Android OS.

It's the difference between an idea and actually bringing that idea to market. That difference is always ignored or underestimated by patent lawyers -- but developers know the difference. The patent system wasn't designed by software developers, though. And it shows.

Last summer, we noted that there was an interesting "sideshow" in the patent dispute between Oracle and Google -- a question of whether or not Java's APIs are covered by copyright. That "sideshow" has become the main attraction now that the trial has started and many of the patent claims have been kicked out.

Oracle has been quite public with its argument (pdf), which is mostly based on taking snippets from Google emails that suggest a need to license Java. The favorite of the bunch is this one:

They also point to some snippets of code that do appeared to be copied:


If you just see that side of it, you might be convinced, but the details suggest a much less convincing story. First off, there are serious concerns about whether or not an API even can be covered by copyright. In fact, before Sun was acquired by Oracle, Sun's own CTO had said that "internet specifications are not protectable under copyright," which (you might think) gives Google an implied go ahead to make use of the API. Furthermore, many of the email snippets that Oracle presents are taken out of context -- they show little snippets of big emails and pull from very very different time periods -- ranging from 2005 to 2010, when different factors applied. Oracle also scrubbed a blog from former Sun CEO Jonathan Schwartz in which he warmly welcomed Google to the Java family when the company launched Android.

Perhaps more damning: Larry Ellison himself in 2009 at the JavaOne event spoke about Google's Android development and how they were contributing code back to Java. Ellison himself was put on the stand and appeared to contradict his own depositions when it came time to discuss the specifics of the copyright. That can't go over well. Not only that, but he stumbled, and claimed he was "not sure" when asked specific questions:

On cross-examination, Google came out firing and the room got tense quickly. “Do you understand that no one owns the Java programming language?” lead counsel Robert Van Nest asked.

Ellison began a longer answer, but Judge William Alsup interrupted him and said it was a “yes or no” question. Finally Ellison said, “I’m not sure.”

“And anyone can use it without royalty?” Van Nest followed up.

“I’m not sure,” Ellison said again.

Then Van Nest showed a video of Ellison receiving the same question on a deposition video and answering “That’s correct” to both.

Oracle's response, of course, will be that it just meant for developing apps, not for using the API -- but its other statements are a lot less clear on that. Either way, it seems pretty clear that Sun gave an implied open license to these things, so to come back now and insist otherwise is pretty questionable. Furthermore, there still are questions as to whether or not an API can actually be covered by copyright at all.

Separately, Oracle keeps talking about just how much work it is to create APIs, and even points to some Google statements about the difficulty of doing so. That's smoke and mirrors. Difficulty has no bearing on copyright law. It's kind of surprising that Oracle's lawyers would even bring it up, as "sweat of the brow" arguments won't get very far. Hell, even if it biases a jury, it would get rejected on appeal. It seems like Oracle's strategy here is just to confuse the jury and go for guilty by association because they're going to have trouble showing actual guilt.

As for the specific code snippets shown above, those a few lines out of 50,000 or so files. Under copyright there's a defense known as de minimis copying, if you're just found to have copied a very tiny portion of something. It seems like that might apply here as well.

Also, you may have heard stories about the results of this trial potentially being worth billions of dollars or something, but that was before most of the patents got thrown out. The patents left over aren't worth very much at all, and the end result means that if Oracle wins, it'll likely get less than $100 million. That's still a significant sum, but it's a lot less than what Oracle had hoped to get in this lawsuit.

In the end, as it seemed from the beginning, Oracle's case looks pretty weak (and getting weaker).

There was a bit of an embarrassment in the ongoing patent dispute between Oracle and Google. Oracle, of course, is claiming that Google's Android violates some of the patents it acquired from Sun concerning Java. Google pointed out that if its use was so problematic, why did Sun celebrate Google's Java usage in Android? They pointed to a blog post from then-Sun CEO Jonathan Schwartz (who was the first Fortune 500 CEO to blog -- and who, unlike many corporate bloggers, actually spoke his mind on the blog), which happily celebrated Google basing Android on Java/Linux: Of course, that looks bad for Oracle... so it's response was to delete Schwartz's entire blog. Poof. That moment of history gone. Except if you have access to the Internet Archive's Wayback Machine. No wonder the Internet Archive has been declared a rogue site dedicated to infringing activities.

I imagine that Oracle also wanted to erase other former Schwartz blog posts, like the one we spoke about years ago, in which he pointed out that suing over patents is a sign of desperation and that real companies innovate, rather than litigate.

Now, many of you who will be quick to point out that none of that matters. Oracle holds the patents now and so it gets to decide. And that's true -- though I do wonder if such promises not to litigate over patents and to celebrate such usages might be seen as a form of a license... But, the larger point I wanted to raise is that this shows the dangers even of defensive patents. Sun held a ton of patents, almost all of which were for defensive reasons (or to just show what a joke the patent system is). And yet... now that Oracle has them, it can and is using them to try to shake down other companies.

NSILMike points out that Google has now responded to the lawsuit Oracle filed against it over Java-related patents that Oracle got when it took over Sun. The response covers all the usual stuff that you find in every response to a patent lawsuit (i.e., "we didn't infringe on any of these patents, and even if we did, the patents are invalid"). However, it also includes some background on Java, and the fact that Sun had promised to open source the whole thing, but kept some of it back (the part that's now in question). But what makes it a bit more complicated is that it has Oracle on record urging Sun to finish the job and more fully open source Java. While I don't think that actually matters from a legal perspective, you could see it potentially influencing the overall case.

There's a famous story of how IBM sued Sun for patent infringement in the early days. The patent claims from IBM were ridiculous, and Sun's engineers pointed that out to IBM's lawyers. In response, the men in blue made the famous statement:

"OK, maybe you don't infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk [IBM headquarters in New York] and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?"

I had been thinking of that story after seeing the news that Oracle was suing Google over patents it received in buying Sun, and it seems that the joke of an IBM lawsuit may be indirectly responsible for this equally laughable lawsuit. Slashdot points us to a blog post by early Sun engineer James Gosling, where he admits that the experience with the IBM lawsuit resulted in a game among Sun engineers to come up with the most ridiculous thing that could be patented:

In Sun's early history, we didn't think much of patents. While there's a kernel of good sense in the reasoning for patents, the system itself has gotten goofy. Sun didn't file many patents initially. But then we got sued by IBM for violating the "RISC patent" - a patent that essentially said "if you make something simpler, it'll go faster". Seemed like a blindingly obvious notion that shouldn't have been patentable, but we got sued, and lost. The penalty was huge. Nearly put us out of business. We survived, but to help protect us from future suits we went on a patenting binge. Even though we had a basic distaste for patents, the game is what it is, and patents are essential in modern corporations, if only as a defensive measure. There was even an unofficial competition to see who could get the goofiest patent through the system. My entry wasn't nearly the goofiest.

While that patent that Gosling names isn't included in this particular lawsuit, but others have noticed that one of the patents (RE38104) is a Gosling patent.

Of course, it's easy to point out that the folks named on the patents are claiming themselves that the patents were part of a joke to see how bad the patent office is. But, you can take it to another level altogether, and have folks who actually know quite a bit about the technology go through the patents one by one and explain why each of them is a total joke.

This is yet another in an exceptionally long line of examples of what a complete mess our patent system has become. I'm curious if the patent system supporters out there can come up with some sort of way to defend the patent system in this particular situation.