Legal Featured Article
June 20, 2011
Oracle versus Google on Android Infringement - 'What a country!'
By Peter Bernstein, Senior Editor
With so much to cover, it might seem overkill to return briefly to the topic of intellectual property which I touched on only a few days ago. However, the tussle between Oracle and Google over the alleged Java infringements of Android (News - Alert) (News - Alert) is simply irresistible. This is not only because of the staggering amount of money being sought (between 1.4 and 6.1 billion dollars), but also the logic behind the calculations to derive such numbers and the fact this case is still going on.
This all became the center stage of industry discussion June 17 when Google (News - Alert) (News - Alert), complying with an order by Judge William Alsup (U. S. District Court, Northern District of California), was forced to make public parts of a court filing originally made on June 6, 2011. The information, while contained in documents Google was attempting to keep out of public view, shows details of Oracle's (News - Alert) damage claims. If you are so inclined, the unredacted filing is interesting reading even for those of us without a law degree.
The document is a quick, compelling and self-explanatory read. I will not summarize it except to say it focuses on Google’s request to file a Daubert or other motions challenging the admissibility of expert testimony by Oracle. If such a motion(s) were granted, it would mean the analysis of Oracle’s expert on calculating the value of infringement, Iain Cockburn, would not be heard by the trial jury in this case. What I will do is repeat the phrase, made famous in the 1986 sitcom of the same name by Russian comedian Yakov Smirnoff, “What a country!”
As a content producer, I am sensitive to the need for protection of my intellectual property and the exercise of my exclusive rights to be compensated by those who use my creativity for their commercial gain. IP protection dates back to 500 BC. The Greek city of Sybaris let culinary contest winners have one year’s exclusive rights to profit from their creations. In the U.S., Congress passed the first patent act on April 10, 1790 titled "An Act to promote the progress of useful Arts." It emphasized that protecting the ingenuity of citizens was and would be critical to the country’s growth.
Fast-forward to the battle of the behemoths. Is Oracle entitled to compensation if Java (what many view as key to its acquisition of Sun Microsystems (News - Alert) (News - Alert) in 2009) has been infringed upon by Android? Yes.
Is pursuing their claim and the outlandish sums associated with it a good idea? I think not.
Let’s not suspend reality as much of this case seems to have done thus far. In fact, it is more than reasonable to assume that there will not to be a trial. A long and expensive public fight, where a jury of ordinary folks will be asked to discern what multi-billion dollar companies may or may not owe each other, seems improbable and counter-productive. Both companies have better things to do. Plus, almost all of these disputes settle pre-trial for usually “undisclosed” amounts —less than the original claims laid out by those seeking compensation, i.e., less than Oracle’s $6B, but certainly more than the $0 claimed by Google who denies the infringement.
The bigger question, to use the famous Rodney King quote, is: “Why can’t we all just get along?” The number of Android apps is over 200,000. The number of downloads according the calculator on AndroLib is over 5 billion and accelerating. This throws a cloud of doubt over:
Helpful? No. It looks like a lose/lose.
A note to Oracle: this genie is out of the bottle. Other than throwing a damper on innovation, extracting a pound of flesh from a deep and detested pocket and getting lots of people unnecessarily angry, what’s the point? Is it worth potentially a few points on the Oracle stock price?
Aside from the continued instance of various members of the IT community desiring to swell their bottom lines through litigation rather than innovation and competition, the Java imbroglio raises an interesting point about the potential benefits of doing well by doing good. In many ways Java has become an essential, building block for constructing universally adaptable apps. Making Java part of the IT communities’ public “commons”, or pricing licenses of its use so affordably that it is virtually part of the commons, would seem to be a wise move. It does not have to be pure open source (meaning "free"), but being reasonably accessible is important.
A note to Google: You need to be reasonable as well. There is value in the use of Java in Android that, if validated, needs to be recognized. Allowing this matter to fester and overhand the market is not doing anyone any good.
History suggests that Oracle in the long run could/should make more money off of Java’s IP by being accommodating than by asserting its rights in an antagonistic and expensive way. Think of this as a kind of “rational exuberance effect” (my term). One can only hope rationality prevails. It is worth reiterating that we could do with less and not more IP ticking time bombs.
Peter Bernstein is a technology industry veteran, having worked in multiple capacities with several of the industry's biggest brands, including Avaya (News - Alert), Alcatel-Lucent (News - Alert), Telcordia, HP, Siemens, Nortel, France Telecom (News - Alert), and others, and having served on the Advisory Boards of 15 technology startups. To read more of Peter's work, please visit his columnist page.
Edited by Rich Steeves
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