On Thursday, a jury found that Google didn’t violate Oracle’s copyright with its Android operating system – ending the $9 billion lawsuit that had the whole tech industry on edge.
Oracle had alleged that Google violated its copyright when it put pieces of the crucial Java technology into Android, which now ships on 80% of smartphones sold. Google’s defense hinged on “fair use,” the idea that it was legally allowed to use Java as it did.
The jury found in Google’s favor. But if Oracle v. Google had gone the other way, then it could have had huge ramifications for the way software is built and marketed. It would have meant a big payday for Oracle and a total shift in the industry.
What is open source?
Google’s defense relied in part on the idea of “open source” software.
The core concept of open source, as former Microsoft CEO Steve Ballmer once infamously noted, is akin to communism. Developers, including teams of employees at companies like Google, Netflix, and Apple, share code that they’ve been working on with the world. In return, they reap the benefits when the community improves it.
If you hang out with open-source people long enough, then you’ll end up hearing some variation on “all of us are smarter than any one of us.” Because successful open-source projects have dozens, hundreds, or thousands of programmers improving the same code from different angles, the software can get way better way faster than any proprietary tool.
- Reuters/Suzanne Plunkett
That’s why open source is increasingly in vogue with tech companies that find themselves in a race to improve their products as fast as consumers get bored with them. Apple uses the open source Mesos software, a tool first pioneered at Twitter and Airbnb, to manage the huge number of requests Siri gets every day.
It’s also extremely common for companies, especially startups, to take open-source software and use it as the basis for a real commercial product that they’ll actually sell. Open source presents the opportunity to avoid reinventing the wheel, instead focusing on building a viable product.
For instance, a scientific paper that Google wrote in 2003 became the genesis of Yahoo’s Hadoop data-analysis software in 2006. When Yahoo released Hadoop as open source, it became the foundational technology at a string of hot startups that include Hortonworks, Cloudera, and Platfora.
Which brings us back to Oracle v. Google.
Where Google got into trouble
The testimony in this lawsuit tells the story.
When Google was first building Android around 2005 and 2006, it knew that Apple was building something good with what would become the iPhone.
To get its operating system out the door faster, Google decided that instead of building certain crucial pieces itself from scratch, it would use Java – a well-established technology that lots of would-be Android app developers were already familiar with.
Eric Schmidt, Alphabet’s chairman and Google’s former CEO, testified in this case that he went to Sun Microsystems – now owned by Oracle and the original developer of Java – to try to properly license Java for $30 million to $40 million. Those talks fell apart, apparently because Sun was worried about giving up control of the mobile space.
- Michael Bradley/Getty Images
Google cofounder Larry Page testified that Google did use a whole bunch of Java code in Android, skipping the bits that it thought Sun alone had the rights to and rewriting what it couldn’t take in-house.
But Page says that Google did this only because Java was available as open source. Android cofounder Andy Rubin further testified that Google didn’t believe that the parts of Java used were copyrighted – though he’s in hot water over an email he sent that suggests otherwise.
Originally, Google was claiming that Oracle could not copyright APIs, or application programming interfaces, which are the “hooks” that lets software and websites talk to each other. An API is how, say, “Candy Crush Saga” logs you in with a Facebook account.
But a court decision ruled that the pieces of the code that Google used were, in fact, Oracle’s intellectual property under the law. So Google invoked a “fair use” defense – admitting that Oracle owns the copyright to those pieces of Java, but claiming that Google should be allowed to use the code commercially.
Between the lines
If Google’s fair-use defense didn’t work, then it could have set an alarming precedent for the tech industry.
Open source is the way of the world for many technology companies. And the kinds of API code that Oracle has taken issue with here are the kinds that make their way into many pieces of software. It’s not quite ubiquitous, but it’s close.
A ruling against Google here would have meant that established tech companies like Oracle could have had a new source of revenue: Finding startups and developers that use Java or other technology that could be found to be copyrightable and claiming damages.
If Google couldn’t have mounted a successful defense, then it would’ve been unlikely that anyone else would have had better luck.
It wouldn’t have been great news for software innovation, by any stretch. A big part of open source is free and open communication and collaboration. If developers are worried that they might get sued, then the next great open-source software project may simply never get built.
And while it seems likely that Oracle will appeal this case, Google has successfully fended off that worst-case scenario for now.