It has been a long a winding road to get here, but after two years of failed settlement talks and pre-trial motions, Oracle began its infringement and copyright lawsuit against Google this week in a U.S. District Court in San Francisco. Many believed a deal would have been reached long ago, preventing all of this drama. Yet there they were, the two tech giants hauling each other's CEOs up to the stand for public spectacle. Ugly.
Money, basically. In January 2010, Oracle finalized a deal to buy Sun Microsystems, including the Java computer programming language and all of its related technology. Just seven months later, on August 12, 2010, Oracle filed a lawsuit against Google, claiming the Android operating system infringed on patented Java technology. However, Google let it be known that before Oracle bought them, Sun was a huge supporter of Android, and that the Java programming language was open source and free to use.
(Photo by Oracle)
Like most things in life, however, and all things in regards to intellectual property, the devil is in the details. According to the official response Google filed with the court, Sun only "released some but not all of the source code for Java SE" to the public in 2006 and 2007, and that "Sun also released the specifications for Sun’s Java platform, including Sun’s Java virtual machine, under a free-of-charge license" that allowed "developers to create 'clean room' implementations of Sun’s Java specifications." If any of those implementations met specifications, Sun would issue a Technology Compatibility Kit (TCK) to the developer. However, the "TCKs were only available from Sun, initially were not available as open source, were provided solely at Sun’s discretion, and included several restrictions, such as additional licensing terms and fees."
Google used Java to develop Android, claiming it may have been open-source, even though it never fully was. Oracle bought Sun and demanded that Google pay for a license to use Java and, when Google refused, filed the lawsuit. But surely, since Google is aware it used Sun-then-Oracle technology that wasn't really free to use they would be able to reach a settlement agreeent, right? Wrong.
Oracle and Google have met in settlement talks twice now, and both times failed to reach an agreement. The big sticking point is the number of zeros on the check Google is going to write to Oracle. Oracle originally asked for $6 billion, and then $2.6 billion in June of 2011. In July of 2011 the judge presiding over the case, Judge William Alsup, stated that if Google is found liable, they would owe Oracle "probably in the millions, maybe in the billions." Some legal experts contend that Google is on the hook for around $100 million.
Google threw down an offer to pay only $2.8 million plus some residuals.
It's all about the Benjamins.
So, when two parties attempt to negotiate, and the difference on the bargaining table is roughly $5,000,900,907, that's when a trial happens.
It appears Google is indeed infringing on Oracle's patents, and there is a huge chasm between what they are willing to pay for a license and what Oracle wants to charge. In such cases, it is not uncommon for the company being infringed upon -- in this case, Oracle -- to ask the court for an injunction barring the sale of the infringing product. This is a huge request with massive implications, so while the court is considering an injection, often a Temporary Restraining Order (TRO) is requested to halt the sale of the products immediately until things can be sorted out.
Clearly, a TRO against Android devices would send shockwaves through the mobile device industry. Is it possible it could come to that? Yes, but it is unlikely. As Mike Shea, Managing Partner for Direct Access Partners LLC told us, "Seeing as how Android OS is currently found in 50% of all smartphones sold these days, I would think it unlikely a judge is going to issue that TRO."
You worried, bro?
Judge Alsup doesn't want to take Android devices off the shelves, Google certain doesn't want that outcome, and most likely Oracle does not, either. "Let’s remember, at the end of the day, this is about money; it’s about licensing fees," said Shea. "If Oracle wins, Google will owe them money -- quite a bit of money. Since Google happens to have quite a bit of money, my guess is they start accruing for the possibility of either a settlement or a loss, and we all move on."
One company that may not mind seeing Android devices whisked off the shelves is Apple. The late Apple CEO Steve Jobs declared war on Google, claiming that the Android operating system was a "stolen product." Apple is currently embroiled in dozens of lawsuits with companies that manufacture Android devices, like Samsung, Motorola, and HTC. A big ruling against Google in this Oracle case could add quite a bit of support to Apple's claim that Android is sitting on a throne of lies, and that Google has a history of lifting intellectual property from other companies.
Aside from helping build their legal arguments against Android, Apple could also stand to benefit from the opportunity to move a lot of product in the wake left from a TRO against Android devices. "If Oracle were somehow to get a TRO prohibiting the Android system from being used in smartphones coming to market, and Apple were to have the capacity to ramp up production, they could clearly grab some market share," explains Shea.
Just as the Mayans predicted.
Competition is good for everyone, though. We certainly would not want to see Android devices removed from the marketplace, although if they could stop borrowing so heavily from other companies that might be nice. Well, at least Windows Phone would get a chance.
Adrian writes the weekly Law & Apple column for MacLife.com. Follow him on Twitter, or subscribe to him on Facebook.
