I've seen comments on Internet discussion boards according to which the long-running Oracle v. Google copyright infringement dispute has been practically settled, given that Google has just confirmed to VentureBeat that its upcoming release of Android (Android N) will come with Java language libraries that follow "an OpenJDK-based approach." The OpenJDK is licensed by Oracle under the GPLv2 with a so-called Classpath Exception.
It's too early to agree with those who believe it's a virtual settlement (except that damages for past infringement might still have to be determined in court). I do remember that Oracle's lawyers released a statement ahead of the 2012 trial in which they basically said that Google had two options for using Java in Android--a proprietary license or using it on open source terms with the obligation to contribute back to the open source community--but, by simply using Java without either kind of license, Google had committed copyright infringement. That was more than three-and-a-half years ago. Why wouldn't Google have taken this step long before, if such a seemingly simple solution to the legal problem as OpenJDK had existed all along?
There are two possibilities:
It could be that Google is now (that Android has unstoppable momentum) indeed fine with GPL'ing all of Android and just wanted to avoid it earlier on. Android already uses Linux, which is available under only the GPL (no proprietary option there). Now it's also going to use the OpenJDK libraries. So maybe Google doesn't care about applying copyleft--the rule that derivative works incorporating GPL-licensed code must also be published under the GPL (or they must not be published at all)--to Android as a whole. It previously preferred the Apache Software License, which gave Google and its partners more flexibility in terms of throwing closed-source components into the Android mix.
Without knowing how Oracle views this and what Oracle will do, I consider a second possibility no less likely than the first one. It could be that Google still isn't going to put Android as a whole under the GPL. Maybe Google interprets the copyleft rule in the GPL (in this case, in conjunction with the Classpath Exception) in a way that differs from the way Oracle would interpret it. Maybe Google believes it can just replace those Java APIs with something based on the OpenJDK but still doesn't have to put any additional components of Android under the GPL. In that case, Oracle would likely disagree. And that disagreement could then give rise to another lawsuit.
The first possibility is, for now, a possibility. Maybe Oracle will look at Android N (when it's released) and say: this is in compliance with our rules, we just want to get damages for past infringement (including older Android versions that are still out there).
The second possibility, however, would lead to the most significant and dramatic GPL enforcement litigation in history. With the greatest respect for what the likes of Harald Welte and the Software Freedom Conservancy have done on that front, a lawsuit with which Oracle would seek to force Google to release the whole of Android under the GPL would dwarf everything that has ever been done to enforce the GPL.
As a litigation-focused blogger, I can't resist from speculating about what this scenario would mean in procedural terms.
So far, GPL enforcement lawsuits have typically been settled. To the extent that judicial decisions have come down, there is no indication that one can successfully seek what is called specific performance and have a court of law order a GPL infringer to release something under the GPL. It appears that the original right holder can at best obtain an injunction against continuing to distribute the derivative work without making it available on GPL terms.
Let's assume for a moment that Oracle defeats Google's "fair use" defense at next year's trial. It could then seek an injunction against further use of the proprietary Java API declaring code. If Judge Alsup and/or the appeals court agreed, Google would then be barred from continuing to distribute the proprietary Java APIs as part of Android unless it takes a license from Oracle.
But Google would then say: that five-year-old lawsuit is about the proprietary Java APIs, and new Android versions follow what Google now calls its "OpenJDK-based approach."
In that case, Oracle might argue that the injunction still applies, and seek sanctions against Google. So there would be an enforcement dispute.
If Oracle prevailed on the enforcement question, the whole OpenJDK thing wouldn't have helped Google in the end.
However, in order to enforce an injunction arising from the five-year-old lawsuit against Android N, Oracle would have to convince the district court (and/or the appeals court) that this is really an issue that was decided in the original lawsuit. Google, of course, would argue that the copyleft implications of its use of OpenJDK are a completely different matter. I don't want to state a position on this yet, but if the dispute reaches this presently-hypothetical point, I will say what I think (based on the facts that will be on the table at that point, and one of those facts would be the exact wording of the hypothetical injunction Oracle would have won in the meantime).
Without stating a position on a combination of hypothetical events, I think it's not too speculative to say that a not entirely impossible outcome of such an enforcement dispute would be that the court(s) would say: sorry, Google's use of OpenJDK raises one or more new legal questions that must firstly be decided on the merits. In that case, Oracle would have to bring a second complaint against Google, which would be OpenJDK-centric. All of this would take a long time--also including any appeals--to be resolved.
I don't think it's purely coincidental that Google is going down the OpenJDK avenue just in time before Oracle has its next opportunity to obtain an injunction, which will be after the upcoming trial.
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