Patent licensing based on counting the number of products using the patent is a fundamental obstruction to open source. Even arrangements that are "reasonable and non-discriminatory" take away the freedom open source developers have to work without obstacle; an old-fashioned royalty arrangement that involved counting copies of Android would be a serious issue for the popularity of Android with handset manufacturers and software developers alike.
The Oracle copyright case
The main substance of the case is now a copyright claim that surprised most observers. Oracle is claiming that, by implementing the Java programming language and interfaces in Android, Google is in breach of Oracle's copyright.
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.
This is a good thing. Without it, the lives of programmers would be much more complex. Header files and function prototypes would all need licensing from their owners, so programming for any operating system would at best require attention to license compatibility and at worst would involve total control of the programming lifecycle by the platform vendor.
If Oracle wins, the decision could set a legal precedent that legitimizes controlling behaviors by platform vendors -- and introduces a complex and unwelcome legalism into software development. Header files and function prototypes would need copyright statements and corresponding copyright licenses. Open source developers would need to check that the open source license on header files they were using was compatible with the open source license on their software. Corporate developers would receive instructions from their legal departments not to use GPL headers for fear of the license terms becoming applicable to corporate software. Complexity and confusion would return to a world where they have largely been expunged, bringing fear, uncertainty, and doubt back into open source software development.
This would be largely an American phenomenon. In Europe, there is continentwide law asserting that programming languages and interfaces are unlikely to be copyrightable, and even if they are, an exception written into the law allows copyright to be ignored if the purpose of infringing it is for interoperability. Any precedent set by an Oracle win would likely just harm the American technology industry and offer an advantage to its competitors.
That's why the case is of great interest. The need to pay royalties on Android would change the whole character of the mobile market. But it's not just the subject companies and technologies that are at stake. A precedent that programming languages and programming interfaces are indeed copyrightable would affect us all. I'll certainly be watching the case with great interest.
This article, "If Oracle wins its Android suit, everyone loses," was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.