Victory for Oracle may drive software development out of U.S.

The following commentary comes from an independent investor or market observer as part of TheStreet's expert contributor program, which is separate from the company's news coverage.

SAN FRANCISCO (TheStreet) -- Most reporting on this week's Oracle (Nasdaq:ORCL) vs. Google (Nasdaq:GOOG) trial is of the celebrity type.

Oracle CEO Larry Ellison looked uncomfortable on the stand after dancing for reporters outside the courthouse. Google CEO Larry Page was evasive with Oracle's lawyers.

But these are not Kardashians. This is not a celebrity case.

The question before the court is whether Oracle can assert copyright over the Application Program Interfaces (APIs) essential to using a computer language. Can you control what someone else does with a computer language?

The question is difficult to answer because of Java's history. Originally, the language was proprietary to its creator, Sun Microsystems. During these days there were also many implementations of the language made by others, some using open source licenses, and the platform was becoming fragmented, its "write once, run anywhere" promise lost like a great Tower of Babel.

In 2006, Sun decided to make the language open source, with a version under the General Public License (GPL), in order to unify development. Google made the decision to use Java for its Android phones after Sun made Java open source and sought a license of its APIs to this effect, but nothing was ever finalized.

Then, Oracle bought Sun. Oracle saw the success of Android, saw that Sun had not sold a commercial license for Java to Google, and sued asserting its copyright. The question before the courts is whether Oracle's copyright to the APIs - and hence control of the language - is valid.

Copyright is more powerful than a patent. This article has copyright. I assert it because I wrote it, and I assign it to the publisher. This right exists for the rest of my life, and extends 70 years after my death. The terms have been repeatedly extended by Congress whenever Mickey Mouse has approached the public domain.

Patents, by contrast, are inventions that must be disclosed, and their protection is limited to about 20 years. You can also invent around patents. Copyright violations, by contrast, are pretty self-evident.

So, can you have a copyright on a computer language?

Former Sun executive Simon Phipps says no. "This flies in the face of the received wisdom of the software industry. It's so widely accepted that programming interfaces and languages are beyond the scope of copyright that very few cases have ever been brought to court. In those that have, the received wisdom has largely been upheld," he writes.

Software patent analyst Florian Mueller, who now consults for Oracle, says the trial record is clear. "Oracle's opening statement presented 10 documents indicating willful infringement, from a five-year period in the middle of which Google launched Android," he writes.

Mueller added, in an e-mail, that in his view the question of the language's copyright isn't at issue. "It's about complex APIs. The judge denied Google's summary judgment motion," based on claims that Oracle lacked a copyright to Java, "back in the summer because it's a question that really depends on the facts."

Maybe. Or maybe this is not a question of fact for a trial court but one of law for an appellate court.

I think the question of "complex APIs" is sort of a smokescreen covering this larger issue. Did Google need a license in order to use Java? If it did, then the creator of any computer language could now use APIs to assert copyright, and control over, the use of that language. A copyright to language APIs and one to the language itself is fundamentally the same thing.

The facts here may be on Oracle's side. Google did seek to license Java from Sun. But the law needs to be on Google's side. European law does not go where Oracle wants it to go, and if our law is going there, anyone interested in modern software development would be advised to move to Europe.