Oracle’s Fight for the Future

Jeff Chiu/Associated PressLarry Ellison, Oracle chief executive.

The continuing lawsuit between Oracle and Google has raised a lot of thorny questions about patent violations, copyright violations and what constitutes a fair use of software. One other large question is not in the lawsuit itself: Why did Oracle bring this lawsuit in the first place?

The answer is that most likely, Oracle is making a claim on the future.

Oracle may say it is setting right a wrong, because in creating the Android operating system, Google used Java code that Oracle got when it bought Sun Microsystems. Java is an open source code, meaning anyone can use it, but companies are supposed to get a license and pay a nominal fee for commercial use of Java.

With fiscal 2011 revenues of $35.6 billion, it’s unlikely Oracle is thinking about the licensing fee it would get. This isn’t just about money. Companies like Oracle, along with Microsoft, Cisco Systems and other older tech companies are in a strange position. They are young enough that the people at the top remember when they were scrappy youngsters who overthrew major tech incumbents that were unable to cope with disruptive technologies. There are new technologies now, however, mostly within cloud computing, that threaten to disrupt them. If you’ve done it to someone else, you know it can happen to you.

Oracle’s relational databases power much of our world, but much future growth is in cloud-related things like unstructured databases, which hold unorthodox data like the contents of e-mails and what people clicked on in Web sites. There is also growth  in in-memory computing, meant to speed the analysis of large amounts of data needed in online business. Larry Ellison, Oracle’s chief executive, lampooned the cloud for years and then become a convert. Last fall, he announced Oracle’s own in-memory product and is spending a $3.4 billion on the cloud computing companies Taleo and RightNow Technologies.

The claim on Android’s code fits into that. Android is the most popular operating system for smartphones in the world. This becomes important for Oracle as work forces become more mobile and Android appears in more computing devices, like tablets. If Java is part of Android, Oracle’s future work on Java could influence how Android works. At minimum, Oracle has a better window on the code.

Google fears that a Java license would mean Oracle could influence the future development of Android, which may be exactly the thing Oracle wants.

Neither side is likely to be satisfied with the state of the trial, however. On Monday, the jury found that Google did use without permission a small part of the Java code (it amounted to nine lines, out of millions) but couldn’t decide whether this quantity amounted to so-called “fair use” of code, which would mean it was not a copyright violation. Google argues that this is grounds for a mistrial, as you can’t say there was a copyright violation if you can’t decide on fair use. The judge is expected to rule on the mistrial later this week.

The jury also said that Google did not violate copyright on the use of descriptive material related to the code. It found no copyright violation on two other parts of code used in Android. A fourth question, advising the judge in the penalty phase of the trial on whether Google believed it did not need a license and whether it relied on that belief in creating Android, was also split.

The trial still must conclude a penalty phase and the judge’s assessment of damages. Google could still be required to get a Java license. Some difficulties with the jury on Monday, however, may also give Google grounds for an appeal, the issue of a mistrial aside.

Oracle may be making a claim on the tech future in this lawsuit. In the meantime, it certainly seems to have one in court with Google.

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