Oracle-Google trial over Android has software industry on edge

Oracle and Google are back in court debating a 6-year-old case tied to the Android operating system. The stakes extend well beyond the walls of the two Silicon Valley giants.

Developers are paying close attention because the ruling may determine how they can continue to use tools they've always relied upon for free.

Android, which powers over 80 percent of global smartphones, utilizes Oracle's Java programming language. Oracle's infringement lawsuit claims that certain ways Google uses Java are unauthorized, while Google argues that everything in its operating system falls within "fair use."

Oracle is suing for upwards of $9 billion, a number that Google calls "astronomical."

But more important than the money, which at the high end amounts to more than half of Google parent Alphabet's 2015 net income, is the precedent.

Oracle claims that Google "cherry-picked" 37 application program interfaces (APIs), in essence bastardizing Java and its ability to work properly across platforms. As one of the world's most popular programming languages, Java is the basis for applications written by millions of developers, who have never had to worry about how and when they use related APIs.

Furthermore, APIs have become the way that websites and apps easily communicate, integrate and share data. They're fundamental to the modern-day web.

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Thus, the trial isn't just about Oracle and Google, even though a Google loss could result in a substantial payment and some technical changes to Android.

"What about everybody else who is going to be in the same situation when Java comes knocking on their door or anybody else who owns APIs?" said Christopher Carani, a partner at Chicago-based IP law firm McAndrews, Held & Malloy and a faculty member at Northwestern University School of Law. "Everybody has been going on with a gentlemen's agreement that they're not copyrightable so we can all borrow freely."

The case has been kicking around the courts for a half decade, ultimately ending up in the U.S. District Court in San Francisco, where the latest trial began this week. Android creator Andy Rubin, who left Google in 2014, took the stand for about four hours of cross-examination on Thursday.

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Why Twitter chose to do battle with the CIA

The dispute between Twitter and the U.S. intelligence industry that broke into public view this week actually began as long ago as last fall, sources familiar with the matter tell CNBC.

The Wall Street Journal reported this week that Twitter has cut off U.S. intelligence agencies from a service that sifts through the entire output of Twitter's social media postings. That comes as Silicon Valley and the U.S. government have been engaged in a heated dispute over the degree to which American tech companies should cooperate with U.S. law enforcement and intelligence agencies, such as the FBI and CIA. 

It has not been clear exactly which entity in the vast U.S. intelligence apparatus was involved in the dispute with Twitter, but sources tell CNBC that it was a division of the CIA known as Open Source Enterprise. According to the CIA's website, that unit is a part of the CIA's directorate of digital innovation. It was created in the wake of recommendations by both the 9-11 Commission and the Iraq Weapons of Mass Destruction Commission that CIA focus more effort on gathering "open source" information — data that is available to anyone in the public, as opposed to information that can only be gathered through covert means.

Justin Tallis | AFP | Getty Images

Jack Dorsey

Twitter used a veto clause in its contract with a separate firm to block the U.S. intelligence community from buying access to a Twitter data feed. The issue arose as early as September, when the private company Dataminr began work to transition a free pilot program for U.S. intelligence into a paying contract, according to a source in the technology industry. Dataminr is a New York-based firm founded in 2009 that has a contract with Twitter to purchase the raw feed of all Twitter data, known as the Twitter "firehose."

Dataminr has received investments from both Twitter, which reportedly owns a 5 percent stake in the company, and In-Q-Tel, the CIA's venture capital fund that exists to spur innovative technologies of interest to the intelligence community. 

Among the many details of the saga that have not been made clear is exactly what information Dataminr contemplated selling to the CIA. A technology industry source, however, tells CNBC the data did not include direct messages, protected tweets, or geo-location information on where Twitter users are located, unless those users posted that information publicly. Tweets by their nature are public information — Twitter users broadcast their information to a wide array of followers, some of whom they know personally and some they do not. CNBC is among the news organizations that use Dataminr, which deploys algorithms to locate public tweets that may be an indication of breaking news anywhere in the world. 

The Dataminr service has been particularly useful recently in spotting early tweets indicating that ISIS-related terrorist attacks were underway in Paris, Brussels, and San Bernardino, California, source said. Twitter's decision not to cooperate with U.S. intelligence is especially personal, given that ISIS threatened in a video released in February to kill Twitter's CEO Jack Dorsey and Facebook CEO Mark Zuckerberg.

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