Amicus curiae Google versus Oracle

As a part of a new series I'll be writing my professional opinion on legal matters.

In support of the Defendant

A case that started over a decade ago concerning copyright infringement. Google vs Oracle is an unprecedented case that seeks to undermine all of open-source. It also undermines a governing body that previously undermines all American ingenuity, called the United States Patent and Trademark Office (USPTO). But that is a topic for separate discussion.

There are at least a few legitimate use cases for copyright laws. In the case of Disney's Mickey mouse trademark. A little history, Mickey mouse was designed and invented by another person and stolen by Disney. Disney then lobbied for the USPTO to give them exclusive rights to all creative works for over 70 years. Disney is the perfect case study of both how the USPTO protects intellectual property and how it overreached and creates a monopoly on creativity. But worse is the astigmatisms that they have created within industry, where "rights" are no longer a logical argument, but instead a philosophical argument of right versus wrong.

Copyright infringement is a strict liability law which means it doesn't need proof of "ill intent" or "mens rae" (Latin for guilty conscience). This means that nobody actually has to be hurt by a copyright infringement, they don't have to prove they were hurt by it, it is inherently wrong because we, as a society, decided it's wrong.

Here is the depressing part from my field of software engineering. People care more about words in a service license agreement than they do about something working correctly. Specifically, when it comes to open-source licensing.

Open source, usually means that anybody can look up a product, understand the internal workings of the product, AND most excitingly, make changes to the product to improve some functionality. Where this gets messy is, every product has its own governing body, whether it is one person who works on the project (like a dictatorship) or many people who work on a product (like an oligarchy). Every product can have one or many licenses attached to it with many different stipulations such as, "all uses of this product must also be open source". Here's the tricky part, some stipulations for open source prohibit certain uses of the product. You can literally put anything in a license, such as "this product may only be used during a full moon." And everyone has to abide by those rules, no matter if they are not REALLY enforceable. And believe me, there are some really stupid rules out there.

The unfortunate part is this stifles American ingenuity, to the highest degree. I have had people tell me "NOT to use a feature because it uses License A instead of License B". The fact is, the work has already been done, but I am disallowed by my peers and whatever fading ethical alignment I have with the industry. I am unable, and even, ejected from a creative pursuit because of thoughtless words on a page. This is not to say I have zero respect for copyright. I do have respect. My issue is with utility. What utility does something have if both Product A and Product B are limited, but together could be transformed in to a great New Product. This is not the intent of any patent law whatsoever in the entire history of intellectual property.

History of intellectual property

Intellectual property has been around since ancient Greek democracy. Thousands of years ago the design of a woven basket was granted exclusive rights to a seller so that they might be the only person in town selling this style basket. In recent years, intellectual property has only been addressed since the 1500s with the popularization of the printing press. In even more recent years, the cinematic story of a man who invented the windshield wipers. Who the hell wants to spend his entire life and all their time and energy arguing about their invention that they never got paid for?

The point of all this history is to say, copyright laws, like most laws are intended to protect the lesser privileged and the people who could be hurt by people breaking them. They should be written and implemented to protect people, not the rich and powerful. There are many other examples of deficiencies with copyright laws, such as it's failure to protect content creators. A TV show ripped a cover/remake from a YouTuber. An artists story of a frog became an icon for pedophilia. Even domain name squatting has seen little improvement for trademark holders.

In software specifically, there are examples of stolen code being used to make money. Is the original author entitled to make money, or restrict the use of their code if it is published publicly? But the case between Oracle and Google is even more trivial. Can you steal implementation details, like in a clean room reverse engineering setting like Black Duck? In this scenario, it would seem like if software/code is stolen that is theft; however, the act of reusing the code for creative ends, that is artistic freedom and fair use. This is a double edge sword, indeed.

If a company makes money off an improvement to a product, that is just the free market acting itself out in this case. Google could obviously then establish that it hasn't made any money on Java's API, but instead the branding and the product they build with. I tend to agree, because patents don't really matter until someone builds something with it. I've certainly benefited from Google's work.

Common knowledge

There is another argument that could take the stage. At which point does an industry standard become common knowledge? As a programmer using a language, I expect a framework to come with that language. If Google copied a framework that is openly published, that reflects on the language and it is what I would expect. Since I already know about, it's common knowledge in the industry how the underlying functionality works, even if the source code is different from what Oracle owns. That is part of the difficulty with being "the first to market", your precedence has set the bar for anyone who understands and enters the market after you.

In the industry of software engineering, we are well aware that theft happens. All software that runs through a web-browser like Chrome, is practically "open-source". The act of executing or running the code on a web page requires that the inner workings of the web-page can be understood by the browser, and usually human readers as well. Readability, openness, and cross platform compatibility are a ubiquitous feature of software and the web. Perhaps that is why we have to resort to self-enforcement because the laws are insufficient, aren't enforced, and aren't judged properly yet. If the court rules in favor of Google, companies could charge a subscription fee to use an API. It would discourage freedom and openness if anyone educated can come along and steal your hard work and designs. If they rule in favor of Oracle it could discourage innovation because Oracle doesn't only own the programming language Java they are also taking ownership over how it is used and the developers that use it.

For Scott McNealy to claim that "packages" are somehow different than APIs, is woefully naive. He has benefited from the design of other people's packages. He's taken what he learned from Fortran mathematical libraries and applied the same principles to Java. If Google translated Java packages to Kotlin from the start, we wouldn't be having this discussion because it would obviously be fair use. If every single Java developer depends on String.lowerCase() that doesn't give Scott McNealy the right to claim he has the rights to all lowerCase() functions. It is common knowledge that String.lowerCase() converts characters from uppercase to lowercase. It is an implementation detail of how it does this conversion (e.g. using math or some sort of translation table), but no matter what programming language I am using, I expect String.lowerCase() to do the same thing.


If Scott McNealy wants to claim that package design is a thoughtful art. Then Google "stealing" that design to make new art is called Contrafactum, and it happens EVERYWHERE. It happens in music, every time an artist makes new lyrics to an old familiar rhythm. Every time a painter paints in the same style as Van Gogh and blots the paint on their canvas. Not to mention, String.lowerCase() is available in many different languages already, does Oracle deserve royalties on everyone else's work, just because they are first to market with Java?

Oracle is a company that no one needs to think about. It hasn't been thought about in years. It is NOT an industry leader in anything. Similar to IBM, it takes other people's work and provides a consulting service in implementation details. That is what the company sells. The fact that it owns a framework and a programming language is a small and insignificant part of it's business. It is trying to flail it's arms in front of Google and the Supreme Court because Oracle is jealous that Google did something they cannot. Oracle doesn't deserve royalties on Google's use of Java, because if it did, there would be more smartphone manufacturers that also wrote their own operating system and used Java for it's API. The fact that there is only 1 Android, is evidence enough that Google has done something new. Java was NOT designed for smartphones. That is a flat out lie. There are other smartphone manufacturers, and there are other smartphones that can be programmed with Java, and those companies aren't referenced in this case against Google because Oracle knows they are irrelevant to their own business model.