The problem with Oracle v. Google is that everyone actually affected by the case knows what an API is, but the whole affair is being decided by people who don’t, from the normals in the jury box to the normals at the Supreme Court—which declined to hear the case in 2015, on the advice of the normals at the Solicitor General’s office, who perhaps did not grasp exactly how software works.
In a world where Silicon Valley is coming into dominance, Oracle v. Google is an unusual instance in which the nerds are getting totally owned by the normals. Their judgment on the technologies they have birthed is being overridden by old people in black robes; their beloved traditions and mythologies around free and open source software are being scoffed at by corporate stiffs in suits as inconsistent hippie nonsense.
Google’s witnesses are—or at least profess to be—true believers in free and open source software (FOSS), and FOSS isn’t purely about the technology, it’s also a bastion of copyright radicalism. The General Public License (GPL) and other licenses carve out a counterculture amidst a harsh copyright law. In trying to explain the facts, the nerds must also explain their religion, and Oracle attorneys have nothing but scorn and skepticism for them.
Silicon Valley wants to live in a world of its own, where it sets its own rules and writes its own laws. Oracle v. Google does little to change its mind that this is only right and fair.
And to be fair to Oracle attorneys, although the copyleft idealism of the free and open source software movement infects Silicon Valley at its very foundation, Silicon Valley is a capitalist enterprise, and has always had an ambivalent relationship with FOSS. It’s all well and good for Andy Rubin, co-founder of Android, to sit in a courtroom and explain that Android makes money despite giving a product away for free, but outside the walls of the courthouse, the elegant, perfectly manicured, proprietary walled gardens of Apple are beating the goddamn pants off Android.
The nerds don’t want to dwell on that. There’s one big thing on their minds: they are really, really worried that the jury does not understand nerd shit. The witnesses that Google calls keep turning to the jury and trying to explain what an API is, only to be halted by Oracle’s objections that Eric Schmidt (once an executive at Sun Microsystems, later chairman and CEO of Google, now executive chairman of Alphabet) and Jonathan Schwartz (CEO of Sun during Android’s development) aren’t expert witnesses.
Schmidt and Schwartz are just there to talk about how things went down over the years that Google created Android: the who, what, where, when. They aren’t there to explain the technology as experts—that job falls to the actual expert witnesses, who are, as Judge Alsup speculated disapprovingly on Wednesday, likely being paid millions of dollars to play their roles in this litigation. But to Schmidt and Schwartz, the definition of an API—which may be an arcane, slippery concept for the jury—is fundamental to the questions they are being asked about who, what, where, when. They know this, and with the classic compulsion inherent to every nerd, they want to explain so very badly.
Eric Schmidt sought to describe APIs and languages using power plugs as an analogy. Jonathan Schwartz tried his hand at explaining with “breakfast menus,” only to have Judge William Alsup respond witheringly, “I don't know what the witness just said. The thing about the breakfast menu makes no sense.”
Schwartz’s second attempt at the breakfast menu analogy went much better, as he explained that although two different restaurants could have hamburgers on the menu, the actual hamburgers themselves were different—the terms on the menu were an API, and the hamburgers were implementations.
No one bothered to challenge Schwartz’s apparent belief that hamburgers are commonly featured on breakfast menus, as he had already moved on to confusing the jury on another front: the operating system GNU, which is a pearl of the free software community. When asked by Judge Alsup to “explain GNU in 30 seconds,” he launched into a reverent speech about how a “very smart man” believed that software should be free.
Before he could actually name Richard M. Stallman, or give out the “free as in freedom” speech that many of us adjacent to the tech community have heard from that one friend of ours many times, Alsup interrupted him. “That’s not 30 seconds,” the judge said, and managed to truncate the stirring legend of the Free Software Movement to a few minutes of terse explanations, including what the acronym GNU stands for: GNU is Not Unix.
“The G part stands for GNU?” Alsup asked in disbelief.
“Yes,” said Schwartz on the stand.
“That doesn’t make any sense,” said the 71-year-old Clinton appointee.
Oracle CEO Larry Ellison. Image: Getty
Schwartz and Schmidt aren’t supposed to be expert witnesses, but they can’t help but be ambassadors of a strange universe that the jurors may or may not be familiar with. In any other jurisdiction I would confidently say that none of the jurors had ever heard of Richard Stallman—but this is San Francisco, after all. There’s a chance that all this talk of free and open source software is not nearly as alien to the jury as it could be, but it’s more likely than not that it’s very, very, very alien.
The nerds struggle to be understood. It doesn’t help that towards the end of his cross-examination by Oracle, Schwartz became snippier and snippier, answering the Oracle lead attorney’s questions with passive-aggressive hostility. He seemed to lose his cool starting with the moment that Benjamin Bicks brandished an exhibit, asking, “You kept a Google blog on yourself, did you not?”
“No,” replied Schwartz, bewildered. When Bicks showed him the exhibit, he looked it over, and said, “I think you’re mistaken on what this is.”
It was a Google Alert on Jonathan Schwartz’s name, one of many emails that had landed in his inbox and likely never gotten read. “You don't remember this article about being one of the fifteen worst CEOs in American history?” Bicks asked him.
“There’s a lot of things on Google Alerts I don’t control,” said Schwartz, unable to resist sarcasm. “It’s a big internet.”
Schwartz seemed less upset about being called one of the worst CEOs in America, and more put off by the sheer indignity of being cross-examined by a man who didn’t know what a blog is—enough that he broke a 10-month long Twitter silence to snark about it.
On the stand, Schwartz comes off as an inconsistent character, but his inconsistencies are only the inconsistencies of the tech industry at large. The big players both love and hate FOSS, and FOSS both loves and hates the big players. And in reality, the soulless corporations can’t really be separated from the starry-eyed idealists, who themselves work for the corporations as both engineers and executives—thus generating the hypocrisies that Oracle is eager to point out in this trial.
This is why Schwartz can speak reverently of Stallman, even though Schwartz apparently walked away from a deal with Android over disagreements about control of the Java ecosystem—control that Sun did not wish to relinquish. This is why Schwartz congratulates Google on developing an open source mobile platform to its face, and then calls it “Scroogle” in a private email—derogatory portmanteaus being a classic pastime of FOSS nerds, the most prolific creator being FOSS patron saint Richard Stallman himself, who insists on calling the Amazon Kindle “the Amazon Swindle.”
Google’s nerd witnesses are hamstrung on their ability to explain the motivations behind their actions, because a big part of the sequence of events that led up to Oracle v. Google is that no one thought the Java APIs were copyrightable. Programming languages aren’t copyrightable because they were only valuable insofar as many programmers could freely use them. And it is impossible to implement programming languages without the APIs. Copyrighting a Java API would be absurd. It’s why Sun never threatened to sue Apache Harmony for their implementation of Java, it’s why Sun put out their own open source implementation of Java themselves.
Oracle v. Google is the revenge of the normals, bringing a hammer down on the customs and practices that the nerds decided for themselves.
But ever since a bunch of normals at the Federal Circuit decided in 2014 that the structure, sequence, and organization of the Java APIs are copyrightable, copyrightable they are—and now Google witnesses are struggling to explain their actions as part of a long shared history in an insular community of nerds with their own language, their own mythology, their own intuitions about software and intellectual property.
Oracle v. Google is the revenge of the normals, bringing a hammer down on the customs and practices that the nerds decided for themselves. After all, something can’t be copyrightable just because all the nerds agree it is; so why should something be unable to be copyrighted just because the nerds think it is?
But Oracle v. Google does nothing to disabuse the nerd of the conviction that they are right, and that the copyright law forged by the normals is an unrigorous wishy-washy piece of nonsense. Because in this case, the law really is completely out of touch with what the technology actually is, with reality itself. Just look at the Federal Circuit opinion that ruled that APIs are copyrightable, where they say, “Google was free to develop its own API packages and to ‘lobby’ programmers to adopt them.” A federal appeals court actually proposed that in some alternate universe, Android launched and told developers to write apps in a language they’d never encountered before.
Silicon Valley wants to live in a world of its own, where it sets its own rules and writes its own laws. And Oracle v. Google does little to change its mind that this is only right and fair. It’s why the tech community often lashes out with such vitriol at Larry Ellison over this suit: It’s a betrayal of nerd solidarity, Ellison selling them all out just to land a $9 billion punch right in Google’s face.
The normals would have never had a chance to get it wrong if Ellison hadn’t pursued this grudge-match all the way to the top. And now this trial—over whether the Android use of the Java APIs was fair use—proceeds on an absurd foundation, the assumption that APIs are copyrightable in the first place.
Correction: An earlier version of this story incorrectly said that Eric Schmidt is the CEO of Alphabet. He is the chairman.