Google's stance could refine the code of conduct


WIRED:As Oracle’s legal wrath weighs down, the web giant may strike a blow for software democracy, writes DANNY O'BRIEN

THE BEST summary I’ve seen of the Oracle lawsuit against Google (and much of the tech news of this year) was this message on Twitter by Phil Nash: “Welcome to the new decade: Java is a restricted platform, Google is evil, Apple is a monopoly and Microsoft are the underdogs.”

To unpack that, you need to know that, these days, Apple is seen as having a dangerous amount of control over its iPhone and iPad platform; that Google, as this column covered last week, is seen to have “sold out” on network neutrality; and Microsoft’s influence, as if you hadn’t noticed, is plunging.

And to add to the poignancy, you also need to know that, just a few years ago, Apple was seen as a spent force, Microsoft was champion of the world, Java was being opened to every platform, and Google was famous for not being evil.

We might still go back to those happier times. In particular, now that Oracle has launched its legal attack, Google has a chance to return to the side of the angels, free Java, break a potential monopoly – and even look the underdog while doing it.

Here’s the story of the lawsuit. Earlier this year, Oracle bought Sun, the original creator of the Java programming language. Most merger-watchers assumed Oracle was buying Sun for its server hardware division, but it seems there was a litigation maraschino cherry on top of the deal.

The database company’s lawyers were also salivating over Sun’s ownership of a raft of patents on Java: and Google’s determination to skirt around them when building its Android platform.

Android uses the bits of Java that Sun had opened up as a standard. But not all of Java is free for anyone to use. Specifically, in order to protect yourself from being sued for violating Sun’s patents, you have to use some parts of it in a particular, Sun-friendly way.

Google either didn’t want to be Sun-friendly or just had some technical ideas of its own when it built Android. Either way, it does not pay Sun licence fees, and it is not protected from being sued by Sun.

Sun, however, wasn’t interested in suing Google, possibly because its management was more intent in selling the company to the highest bidder.

Oracle, however, isn’t going to sell up to anyone, and is very determined to squeeze every last cent from Sun’s legacy. One way is to use Sun’s patent portfolio to force Google to pay licences for every Android phone.

To do so, they willingly risk the ire of many techies. The core of the Oracle claim involves patents on software. The majority of coders believe most software patents are a legal abomination, if only because of their extremely obvious nature. Others object to them on philosophical grounds, arguing that they’re equivalent to patenting mathematical truths, and demanding money from anyone else who also discovers them.

On either ground, Oracle’s claims looks a little shaky. Some of them are arguably obvious, or were evidently used by others before Sun ever patented them. Others Google could evade simply by some rewriting of its basic Android code.

Oracle has also thrown out some vague copyright claims which, to this dabbler in copyright law at least, look to be built on sand. Perhaps Google hopes that, with a little nimble coding, it can make Oracle’s challenge go away. That’s unlikely. Oracle is, if nothing else, a tenacious and brutal competitor.

If its accusations look vague now, it’s almost certainly going to toughen them up in the run-up to the court case. It has hired David Boies, fresh from his successful overturning of the anti-gay marriage amendment in California, and not a man who takes no for an answer.

Google could also opt to fight fire with fire, and adopt an extremely righteous stance. It could turn its lobbying and legal skills toward destroying software patents entirely.

The company, despite its recent dip in the waters of evil, still likes to display saintly outrage and did so to describe the Oracle attack as an attack on “both Google and the open-source Java community”.

But will it go the whole way to defend both itself and others caught in the crossfire? The easy way out, as Oracle and Google both know, is for the search engine giant to pay Oracle off. Silicon Valley companies regularly settle over even the most ridiculous patents.

Such a quick deal may be in the interest of Google, but might well destabilise the wider world of Java, which will continue to have a stink of potential litigation around it.

That’s not to mention the effect it may have on Android hardware manufacturers like HTC, who are already fending off patent claims from Apple over the platform.

If there’s a real change this decade, it is not Google turning evil; it’s the company feeling its own vulnerability. It’s been a long time since Google had a hit, let alone one that makes revenue.

Does acting as the defender of all that is good in open source and the internet cost Google more than it brings in? And if so, can it afford to take Oracle to court in the hope of a decisive, universal win against patent trolls and software patents?