We could do a better job of getting test cases through the courts that clarify the law.
Or we could invent new mechanisms for turning rulings from specific cases into general principles that people can rely on.
Or we could allow somewhat more hypothetical cases in certain circumstances.
As I understand it, in the US, after a few cases like the Phoenix BIOS one people came to believe that a clean-room reimplementation of an exisiting interface was generally permitted, and so people stopped suing and we didn't get a flow of cases exploring the limits of that principle.
So now when Oracle comes along and points out that the Java API is a lot bigger, and arguably more creative, than the PC BIOS call interface, there isn't an existing case that settles the question.
I can see why there's reluctance to allow people to get courts to decide hypothetical questions, but this case seems to be a decent example of when it would be helpful: if Google had had the option of getting a ruling ahead of time on whether its Java library clone was permitted, it might have saved an awful lot of time and money.
Courts don't decide hypothetical questions. They decide on the case before them, constrained by the precedents of previous cases.
A judge can use examples and hypotheticals (called "obiter dictum"), but that doesn't create a binding precedent and later judges may ignore it, refute it or alternatively convert it into precedent by adopting the reasoning in a decision.
We could do a better job of getting test cases through the courts that clarify the law.
Or we could invent new mechanisms for turning rulings from specific cases into general principles that people can rely on.
Or we could allow somewhat more hypothetical cases in certain circumstances.
As I understand it, in the US, after a few cases like the Phoenix BIOS one people came to believe that a clean-room reimplementation of an exisiting interface was generally permitted, and so people stopped suing and we didn't get a flow of cases exploring the limits of that principle.
So now when Oracle comes along and points out that the Java API is a lot bigger, and arguably more creative, than the PC BIOS call interface, there isn't an existing case that settles the question.
I can see why there's reluctance to allow people to get courts to decide hypothetical questions, but this case seems to be a decent example of when it would be helpful: if Google had had the option of getting a ruling ahead of time on whether its Java library clone was permitted, it might have saved an awful lot of time and money.