Google responds aggressively to Oracle Java suit

http://www.groklaw.net/article.php?story=20101005114201136

by grellas • 16 years ago

297 121 16 years ago

jacquesm6• 16 years ago

I'm definitely rooting for Google on this one, they do plenty of weird stuff themselves but Oracle is behaving like a complete bully in this whole saga. Since they acquired SUN it's been going from bad to worse in a hurry, to the point where major Java users are starting to wonder if they made the right decision committing themselves to the platform.

Time will tell on how this will turn out, I don't expect a case of this magnitude to take less than a few years, these are just the opening salvos.

Oracle has a lot to lose here, and that's not just the lawsuit.

The analysis presented here is pretty damning of Oracles behavior, especially the fact that the counter is that they have taken the opposite position before they owned Java through the SUN acquisition.

.NET just might see an upsurge because of all this.

bad_user9• 16 years ago

Oracle was probably hoping for an out of court resolution, similarly to how Microsoft was able to do with HTC.

Google instead has to defend it with everything it has, because lately Android phone manufacturers are being under attack by Apple and Microsoft (Nokia could be joining soon).

Regardless of the result ... this whole affair is going to generate a ton of bad press for Oracle, and I hope they learned something from the SCO lawsuit and just back off before it's too late.

And when comparing this lawsuit with SCO versus IBM and Novell, Oracle sells database management software, a field in which Google probably has patents by now. Were they hoping for a cross-licensing deal or something?

jacquesm6• 16 years ago

> going to generate a ton of bad press

That's already happening:

http://flexblog.faratasystems.com/2010/08/13/time-for-open-s...

http://www.pcworld.com/businesscenter/article/203336/oracles...

http://www.infoworld.com/t/platforms/computer-user-group-bla...

http://www.infoworld.com/t/languages-and-standards/oracle-th...

Comparisons with SCO are already being made in the kind of publications read by IT management and Oracle is already taking damage from this.

gaius2• 16 years ago

1) Consumers don't care; most of them have never heard of Oracle and 2) Oracle's large corporate customers will cheer them on for defending their patents.

Oh and 3) Google's "do no evil" schtick is a triumph of PR, but that's all it is. They are just a corporation like anyone else, and they will do what's right for them, period.

jemfinch• 16 years ago

> Oracle was probably hoping for an out of court resolution, similarly to how Microsoft was able to do with HTC.

Really? Who has Google settled out of court with on patent litigation?

8ren4• 16 years ago

I've been thinking about Oracle's stewardship of Java, as an intellectual exercise. I'm going to argue for Oracle (because that's the opposite of how I feel.)

(1) Oracle is not a technology company. They don't have an engineering culture; they don't want an engineering culture. So James Gosling left and many others (though oddly, Guy Steele remains: http://labs.oracle.com/people/mybio.php?uid=25706). But maybe this doesn't matter for Java today...

Java has matured (some would say "stagnated") and that doesn't hurt its prospects for business use, but enhances them. And, quite amazingly, Java still has great qualities for today's two largest emerging markets: the Cloud (hey! the network is the computer!) and small embedded systems (like Android.) None too shabby, as-is.

(2) Oracle is a sales company. Sun was terrible at making money from Java. Maybe Java... needs Oracle?

Microsoft has pushed business cases and business applications, and C# and .Net have gained great acceptance, even though they are confined to MS's stack. Even Apple is succeeding with its closed iPhone/iPad "stack". Why can't Oracle do the same in an Enterprise stack? Yes, many Java developers will really hate it. Yet, that confinement hasn't stopped .net developers.

(3) The problem with Oracle is not sales vs. tech, but that they don't seem to be 100% on the ball - which is why Google is able to rip them apart so confidently. While I think the sales-based stewardship I outline above is plausible, it still needs to be well executed.

icey2• 16 years ago

.Net may be confined to the Microsoft stack but C# is not, thanks to Mono.

Nelson69• 16 years ago

Have a listen to the Java Posse this last week, #325. The new platform architect seems to think Java is in better hands, for the greater community too.

How do you simply dismiss Oracle as having a culture of engineering? Are the products bad? Is it simply that the corporation wants to profit? Is it the lack of hacker's names and faces on products? Is it the cost of the products or that they don't do something that they claim or should do?

I'd assert that they might be so good at engineering that it's no longer sexy to talk about it with them and they've matured so far beyond hacking that the names and faces aren't important.

Have you ever used any Sun hardware and then maybe a similar vintage IBM or HP piece of hardware?

lukev• 16 years ago

Here's to hoping Oracle gets crushed. If they don't, it's very bad news for everyone who has anything to do with the Java platform.

kjetil• 16 years ago

It will quite possibly be bad news for Android vendors. But by Google's own admission, Android is not Java.

[Insert obligatory smiley: :-) ]

Seriously, Google is one of the big backers of Java and OpenJDK. By suing Google, Oracle risk losing contributors like Josh Bloch and Martin Buchholz. I mean, they've already skipped out on JavaOne.

CaptainZapp• 16 years ago

They don't seem to care at all about losing top tech talent.

Cripes! They even wanted to convert James Gosling as a sort of a talking puppet at trade shows.

Your line of reasoning would work, if Oracle was about engineering. Oracle, however, is mostly a sales - and marketing operation with some engineering attached to it.

jcl• 16 years ago

Or anything using JITed virtual machines, for that matter...

blub3• 16 years ago

Only bad news for corporations like Google that want to benefit as much as possible from Java while giving little back in return.

They get the Java name and popularity, but they don't pay any licensing costs because they don't license JavaME and instead try to create their own implementation.

In my opinion, Google is both morally and legally in the wrong in this situation and trying to salvage it by playing the part of the open-source-friendly corporation. The fact that they publish open-source code doesn't get them a free pass. They knew what they were doing.

davidw9• 16 years ago

They didn't just try and create their own implementation, they did it. And then released it under a very liberal open source license.

And you call that "giving back little in return"?

I think if they want to go do stuff like that, it's their own business - it's not a trivial amount of work, and if that's what it takes to get around someone's licensing that they find distasteful, well, so be it.

Reimplementing something is not 'morally wrong' in the slightest, in my opinion, as long as you're not out and out stealing code. We would have no Linux or BSD if those people hadn't redone "Unix".

mcmc• 16 years ago

From the article: "And here's a detail that matters in any copyright infringement litigation: 17. Google does not receive any payment, fee, royalty, or other remuneration for its contributions to the Android Platform."

I don't why this "matters" in copyright infringement litigation except perhaps in calculating damages. However, even in the absence of proven profits by Google on account of the alleged infringement, or losses by Oracle, there can still be statutory damages[1] which, in many cases, could be pretty steep.

[1] http://en.wikipedia.org/wiki/Statutory_damages_for_copyright...

protomyth2• 16 years ago

Well, when coverflow is worth a half-billion dollar litigation, I a pretty sure this is a little more valuable.

stonemetal• 16 years ago

The lawsuit is about patents, copyright doesn't apply.

davidw9• 16 years ago

The complaint says: "COMPLAINT FOR PATENT AND COPYRIGHT INFRINGEMENT" or at least this copy does: http://regmedia.co.uk/2010/08/13/oracle_complaint_against_go...

Estragon• 16 years ago

I wish Google well in this conflict, but can someone explain to me why Oracle's former position on open-sourcing the TCKs is relevant to the case? I agree that the somersault makes them "look bad" as the OP says, I just don't understand its specific legal implications.

doki_pen2• 16 years ago

I agree. Should we pretend that companies don't act selfishly? Oracle wanted Java more open when it worked better for them, now it doesn't. They are allowed to change their minds, aren't they?

I still hope Google wins though.

bad_user9• 16 years ago

      Should we pretend that companies don't act selfishly?

As I've said in another comment, corporations are recognized by the law to have rights and responsibilities like real people. For example, corporations can exercise human rights.

Corporations can even be convicted of criminal offences, and it would be stupid to not hold them to the same standards as real people.

I don't know were this trend is coming from (that companies shouldn't be accountable for anything other than making money) but it doesn't do any good.

bmelton• 16 years ago

Well, that's a question I'd loved to see answered. Simply put, I don't know if you can be 'more open source', and then simply change your mind on such a thing.

Perhaps this situation isn't really reflective of what I'm talking about, but I don't think that you can un-GPL code that's already been opened that way or, even if you can, I don't think you can restrict those who are using the version you originally licensed as GPL in any way other than how you licensed it.

It's a complicated scenario, for sure, but I'd like to hear whether or not the sort of bait-and-switch I described is something that can be done, or if there are any precedents either way.

bad_user9• 16 years ago

In the relief section, Google is asking among other things for ...

     f. A declaration that the Oracle’s claims are barred by the doctrine of 
        unclean hands

They are also probably going to have to explain why they didn't even bother to make Dalvik Java-compatible.

pseudonym• 16 years ago

>>These registrations appear to relate to versions of certain Sun Java materials that were released as open-sourced software in 2006 and 2007.

I'm not a lawyer (and even Groklaw goes over my head most of the time), but it seems like this is the crux. If the lawsuit is based entirely around items that are open-sourced, then there's no lawsuit. But there's no real way to tell, since Oracle hasn't specified what exactly is being infringed.

And from a comment below:

>>Oracle wanted Java more open when it worked better for them, now it doesn't. They are allowed to change their minds, aren't they?

Yes, Oracle is perfectly welcome to change it's mind and say "We don't want this open source anymore." However, they can't (I believe) un-open-source things that have already been released. They can remove the license, take down the Java.com downloads, and continue developing Java under a proprietary license, but the whole point of OS is that the community could take their last OS release and fork it themselves.

This also means that a company can't open-source software or development tools, wait until they're implemented in various systems, then turn around and "un-open-source" them and sue for infringement.

recoiledsnake2• 16 years ago

It's not about un-open sourcing anything. Apache, Oracle _wanted_ Sun to open source the Java testing kit etc. but Sun never did and placed restrictions on usage on mobiles.

So Google is claiming that Oracle is acting hypocritically depending on which side of the aisle it is, but that does not carry any legal weight.

The registrations you talk about in the beginning are to do with copyright claims and have nothing to do with the patent claims.

pyre• 16 years ago

Google is using a clean-room re-implementation of the JRE, not a fork of the JRE so calling 'OpenSource' doesn't really apply here. Oracle wouldn't have a leg to stand on (iirc) if Google had just forked the JRE.

megaman821• 16 years ago

From what I have read Google forked Apache Harmony which has a field of use restriction that includes mobile phones. They were aware of this restriction but proceeded anyway, correctly assuming that Sun would never sue them. Oracle bought Sun and that backfired.

Now I don't think software patents are valid but Google winning this case won't somehow invalidate software patents. In fact it would probably be better if they lost because it will bring the issue into the light for more people and encourage Google to campaign harder against software patents despite their own large holdings.

mbreese• 16 years ago

I don't think that's quite right...

My recollection is that Harmony was a clean-room implementation of Java licensed under the Apache license (which has no field of use restriction). The problem was the Harmony wanted to the 'certified' as Java, which meant that they'd have to pass the Java Technology Compatibility Kit (TCK). The only way Sun would let them run the test was if they included a field of use restriction. Apache said no. Google and Oracle backed Apache in this fight. Up until Oracle bought Sun, that is.

I'm not entirely sure how Harmony has woven itself into this mess, because I was under the impression that the patents in question corresponded to things in the JVM. I believe that Google only uses the Harmony libraries in Android, not the Harmony JVM. So, I'm not sure how helpful this will be specifically to them, except as to portray Oracle as a bad-actor.

It's important to note though, that even as Sun open-sourced Java, it did so under the GPL v2, which doesn't cover patents. Sun always maintained a level of control with Java due to the patents involved, regardless of licensing. It just chose to only force the issue when it came to using Java on phones.

sandGorgon• 16 years ago

I think you are right. Here's what I think the issue is:

1. Sun invents java.

2. Sun patents several aspects - including the security model, bytecode, etc.

3. Sun open sources java and has a patent grant agreement in place if (whatever flavor of ) java passes the TCK.

4. Sun does not release the TCK as opensource

5. Apache Harmony does not comply with TCK - some weird stuff that if Harmony uses the TCK, it ceases to be opensource (might be applicable to mobile domain only). This means that it does not enjoy patent grants.

6. Dalvik uses the Harmony class library, as well as having a similar security model as Java (Patents 6,125,447 and 6,192,476).

So the problem is that, indeed the Dalvik bytecode is different, but that was never part of Oracle's patent claims IMHO. The patent claims are allegedly due to Harmony AS WELL AS other stuff like security models, PACK200 Java compression scheme for DEX, etc.

Side note: there is a Android fork called Sundrop which claims to be a non-infringing Android because it uses the official jvm. I disagree because it does not take care of the other patents.

jacquesm6• 16 years ago

> From what I have read Google forked Apache Harmony which has a field of use restriction that includes mobile phones.

Do you have a reference for that? My google fu must be failing me because I searched all over and can't find a substantiation for that. (no doubt my fault though).

tzs5• 16 years ago

It's in the patent license that covers the Java specification. That license specifically covers Java SE and Java EE and excludes Java ME, and it only covers you if you implement the full spec, without any extensions.

Thus, independent Java implementations relying only on the spec and its patent license are not covered if they do Java ME.

andreyf• 16 years ago

19. Although software applications for the Android platform may be written in the Java programming language, the Dalvik bytecode is distinct and different from Java bytecode. The Dalvik VM is not a Java VM.

Wait, all they've made is a phone that runs a VM that Java can compile to? What exactly is Snoracle suing for, the use of Java syntax as a source language?

_delirium• 16 years ago

I don't think Google actually has a direct Java source -> Dalvik bytecode compiler. They have a translator that converts any JVM bytecode to Dalvik bytecode, so the usual stack is Java source -> JVM bytecode -> Dalvik bytecode. (This means you can also run other JVM languages on Dalvik.)

bad_user9• 16 years ago

> This means you can also run other JVM languages on Dalvik.

Only if that language doesn't do any runtime bytecode manipulation, otherwise it is incompatible.

adbge• 16 years ago

Wait, all they've made is a phone that runs a VM that Java can compile to? What exactly is Snoracle suing for, the use of Java syntax as a source language?

Oracle is suing over Google's usage of specific VM technologies, such as JIT compilation, which they have patents for.

acqq• 16 years ago

Convenient links to the patents (most of them hosted by Google, I guess they can't say they didn't know about them):

http://www.google.com/patents?vid=USPAT6125447

http://www.google.com/patents?vid=USPAT6192476

http://www.google.com/patents?vid=USPAT5966702

http://www.patentgenius.com/patent/7426720.html

http://www.google.com/patents?vid=USPATRE38104

http://www.google.com/patents?vid=USPAT6910205

http://www.google.com/patents?vid=USPAT6061520

Edit: note that http://www.google.com/patents?vid=USPAT7426720 is the only one not working at "Google Patents," can that be a hint to anything? I don't know.

kenjackson8• 16 years ago

It seems like Google is hoping that Oracle effectively made a mistake in their claim (claiming infringement on something that was released to open source). While this is possible, it seems more likely that Google sucked in some code that it shouldn't have. This is based on my past work with engineers and OS code. I've worked on projects with specific rules about what we use, to only audit and see that these rules were quickly abandoned w/o review.

I have no idea what happened in this case, but I do fear that when you have various rules relating to various pieces of code, engineers often don't pay attention or often simply disregard the rules in the belief that no one will care -- "Sun will never sue us... oh, Oracle bought them... brb, I need to go make some reverts"

davidw9• 16 years ago

There are two main bodies of code in question: the VM that Google did, which I'm sure was vetted by their own team, and the Apache Harmony classlib, which is a project that has always had very high standards in terms of what is included - they knew from the get-go that they were operating in a potentially dangerous space.

So this doesn't sound plausible to me.

kenjackson8• 16 years ago

The other psosibility is that Oracle/Sun doesn't know the law or are just lying. Again, I have no clue, but my experience in the space of dealing with open source are lots of violations of various forms. Most innocuous as virtually no one seems to care, but they exist nevertheless.

But maybe Google is really different than most organizations and they actually did a thorough vetting over the lifetime of the project.

cosgroveb2• 16 years ago

Very off-topic, I am sorry, but I just want to ask something to the smart folks here on HN.

In this post, PJ says: "And here's a detail that matters in any copyright infringement litigation: 17. Google does not receive any payment, fee, royalty, or other remuneration for its contributions to the Android Platform."

Also later a commenter, webster, says:

"The fact that Google does not get any fee for Android is a severe problem. It cuts potential damages immensely."

How does this square with the enormous damages that have been granted to the record labels during file sharing lawsuits? Surely file sharers get no fee for distributing mp3s...

jacquesm6• 16 years ago

That's a very interesting observation. I think it hinges on the fact that filesharing 'damages' can be directly related to a product that would have otherwise been sold (or at least, so they allege). In the case of Oracle vs Google though, Google receives no payment for their product, but as far as I know neither does Oracle.

The java runtime is available to anybody free of charge for the 'price' of a download, so what - if any - damages Oracle intends to show is a mystery to me.

notauser2• 16 years ago

It's fairly disingenuous to say that Google doesn't get paid for sales of Android.

They get no direct payment, but they are indirectly paid via:

- Increased take up of Google Mail and Google Apps (with associated desktop ad revenue).

- Increased take up of Google Voice (both for Android, and also for the iPhone which was at least in part a result of pressure from GV on Android).

- Maintenance of a viable mobile ad market. (By which I mean an ad market which isn't Apple-dominated.)

Plus every other indirect network benefit. I think a good lawyer could certainly establish a plausible link.

tzs5• 16 years ago

Actual damages in copyright can be the profits the infringer made from the infringement or the profits the copyright owner lost due to the infringement, so first of all the potential damages (if there was copyright infringement...which is an allegation that as far as I know no one has even been able to guess what it might be) could be up to what Oracle would sell a license for, which I suspect could be a considerable amount. So, I'm not sure PJ is correct here about the potential damages being cut immensely, at least if Oracle asks for actual damages.

Second (and this is the part that is relevant to file sharing), actual damages can be difficult to calculate. It is often highly speculative how much an infringer profited from an infringement, or how much the copyright holder lost due to the infringement. To deal with this difficulty, US copyright law has a thing called STATUTORY DAMAGES. The plaintiff can elect to ask for statutory damages instead of actual damages, and the court is then allowed to come up with a damage number from a range specified by the statute. That range is from $750 to $30k per infringed work, with the court having discretion to drop the low end to $200 if the defendant was not aware and had no reason to believe they were infringing, or to raise the high end to $150k if the infringement was willful.

All the file sharing lawsuit damage awards have been statutory damages, and have involved many songs. Each song is a separate work, so if the court is nice and goes low ($750) but there were 40 songs, that's $30k. The two most prominent defendants, though, were blatantly guilty, and in one case lied under oath and tried to destroy evidence and tried to frame her kids for the infringement, so the court was not inclined to go for the low end of the statutory damages.

(Note that when the RIAA goes after a file sharer, they usually offer to settle for an amount that is under the minimum they would get from statutory damages, which is why if you are in fact guilty, you should settle).

In the case of Android, it would be likely that there would only be one work infringed (although maybe different libraries are different works, so maybe there are more...), and so even if Oracle got $150k/work, it would not be an amount that would be large for Google. Maybe this is what PJ was thinking of?

cosgroveb2• 16 years ago

Ah, thanks for the very insightful reply. I didn't realize the distinction between damages being profits the infringer made, or profits the copyright owner lost. Also statutory damages.

Thanks!

dctoedt• 16 years ago

EXAMPLE: Some years ago, Frank Music. Corp., owner of the copyright in the musical Kismet, sued the MGM Grand Hotel for using material from the musical in their floor show. The original damage award was a percentage of the ticket sales to the floor show, which didn't amount to that much.

After all the appeals were over and the dust settled, Frank Music Corp. ended up with an award of 2% of MGM Grand's total revenues during the relevant time, as indirect profits arising from the infringement. The rationale was that the floor show was a draw for the casino, the restaurant, the hotel itself, etc.

The appellate court's opinion is at http://ftp.resource.org/courts.gov/c/F2/886/886.F2d.1545.87-...

lutorm• 16 years ago

I wondered about this, too. As far as I understand, that they don't get any payment would only be relevant if they were claiming fair use, since that's one of the criteria.

rgoddard• 16 years ago

From my reading, this combined with the use of the unclean hands defense: http://en.wikipedia.org/wiki/Unclean_hands, helps to protect them against both types of damages.

8ren4• 16 years ago

Finally, Google gets a chance to appear non-evil!

But note: nothing substantive about the patents which are the tricky bit.

tzs5• 16 years ago

That was not an aggressive response. It was a routine response, almost a copy/paste of what you'd see from any patent defendant who has decided to not immediately cave.

wtallis2• 16 years ago

What would an aggressive response look like? Did Google show restraint in any way with this? (Perhaps they could have made some counterclaims for Oracle's harm to their business in spite of the fact that Google doesn't make any money directly off Android?)

I think if this response seems normal, that's because aggressive smack-downs are the appropriate way to deal with patent trolls, and most software patent cases involve a patent troll.

tzs5• 16 years ago

It would be a normal response in a non-software patent case, too.

When accused of violating a patent, you generally respond by (1) denying that your product practices the patent, (2) alleging that you have a license that allows you to practice the patent, and (3) alleging that the patent isn't even valid. For the latter you generally allege that it fails pretty much every requirement of a valid patent (invention is obvious, it was not novel, the people on the patent aren't the real inventors, they failed to disclose relevant prior art that they knew about to the patent office, they didn't pay maintenance fees, and anything else that you can think of that is at least remotely plausible).

Basically, all Google is saying is that they aren't going to concede anything Oracle is claiming much beyond that Oracle got their address right, Oracle picked a legally acceptable court to file in, and Oracle appears to own some patents.

strebler• 16 years ago

Of course I don't want Oracle to win, but is this really an aggressive move? The "kitchen sink" approach could be aggressive, but in a way it feels like the "DA throwing every charge they can at a suspect" hoping something sticks.

Also, claiming that the Dalik VM is not a Java VM doesn't seem right.

wvenable2• 16 years ago

Dalvik doesn't run Java executable code, therefore it isn't a Java VM. If you open up Dalvik up to being a Java VM even through it doesn't run Java code directly then it follows that every CPU and VM is a Java VM.

wmf• 16 years ago

As I understand it, Dalvik bytecodes have basically the same semantics as Java bytecodes, but this is not the case for other VMs or processors. I don't think the question of whether Dalvik is really Java or not is relevant to the Oracle/Google lawsuit, though.

guelo• 16 years ago

I blame James Gosling for a lot of this garbage. The whole stupid dance with Apache and the field of use restrictions from trying to make money on mobile is the cause of all this.

Gosling's stewardship of Java was awful. From EJB to J2ME to JavaFX it was one failed initiative after another. I always thought it was obvious how Sun could make money from Java, sell a JVM with extra enterprise features and tools, keep it simple! They might still be alive if they had.

anigbrowl4• 16 years ago

Morally speaking, Google is on firm ground. Legally speaking, not so much. I'm not a lawyer and I don't like software patents so I hope that I'm mistaken here.

First, Oracle's sudden reversal of course following the takeover is a distraction. Oracle says it were unaware of key facts until after it had bought Sun, like a groom who discovers on his wedding night that the bride had been in an abusive relationship with the best man. Bogus? Maybe, but that's for a court to decide - the claim is plausible enough to justify conducting a trial, rather than dismissing the suit on the mere say-so of Google. Oracle only needs to demonstrate that what they learned after the acquisition altered their view.

That might sound trite, but suppose Sun had accepted Oracle's advice in February 2009 and said 'OK, Java is free to anyone for anything forever, just don't forget how nice we are,' and there was no basis for this suit as a result. If Oracle secretly thought the patents were worth billion$ at the time, why urge Sun to give them away? It was a surprise when Oracle sued Google, not least because nobody expected a patent challenge to Android from Sun. So lifting the licensing restrictions would not have damaged Sun's already-low stock price (about $4) in 2009. If it had, Oracle could have purchased the company for less money.

See, Oracle paid about $7.5bn for Sun and is now suing Google for ~$10bn, and the first reaction is 'they only bought Sun so they could sue Google for $$$.' But if Sun had gone the last mile in making Java open source as Oracle urged them to do, there would be no basis for filing a lawsuit. If Oracle had defended Sun's refusal to OS Java and then bought the company, it'd make sense - they'd have been protecting their intended investment. But Oracle's benefit from a fully open source Java SE would have been...$0. It's not as if Oracle was trying to launch a Java-derived mobile platform of its own, and being obstructed by Sun. To prove Oracle had unclean hands, Google would have to show that Oracle knew Sun would reject Oracle's suggestions and committee vote, and that Oracle was only pretending to support the idea.

On the technical level, Sun never issued a license that would allow the full use of Apache's Harmony on mobile devices. No license = no Java on mobile. You can, perhaps, make something of your own that does the same thing, but as soon as you say the word 'Java' it becomes Sun's business. Before going on, I know Android does not align with the Java SE. I will argue that legally, it shouldn't reference Java at all.

Google used some of the Harmony class libraries for Dalvik. That was source code, and not software, but the Harmony license (= the Apache 2.0 license) treats them the same way (see 'Definitions' in http://harmony.apache.org/license.html). So using Harmony source code = using Harmony. This license says nothing about mobile devices, but clause 5 acknowledges the precedence of other conditions in other license agreements, saying that 'nothing herein shall supersede or modify the terms of any separate license agreement you may have executed with Licensor regarding such Contributions.' In other words, Sun retains the rights it reserved when it made Java available. Some rights were never licensable.

At the time the Apache license was crafted, the license governing further development of Java was v2.8 of the Sun Community Source License (2001; http://java.sun.com/javase/6/scsl_6-license.txt). It makes specific claims, which are not superseded by the Harmony license: the important ones being that you can't use any parts of Java, or even offer a Java-compatible API, for any purposes other than non-commercial research unless you first sign a fee-paying license agreement with Sun. Since then, Sun released a simplified Java Research License (2005, http://java.net/jrl.csp) with essentially the same limitations. That's not a problem for Apache, because it's a non-profit organization.

There might be arguments about whether Google should have relied on the terms of the 2001 SCSL or the 2005 JRL when evaluating their rights under the Harmony license, because the earlier one is more explicit about what uses of the tools and technology are permissible. The JRL says simply that it 'is not intended to permit or enable access to the Technology for active consultation as part of creating an independent implementation of the Technology' - where 'Technology' includes any Java source code ever put out by Sun. The SCSL says you can develop your own stuff from Java for purposes other than research, but at the very least you have to validate what's Java-compatible or not before you deploy it anywhere, using sun's TCK, and you are not allowed to use the TCK for the purposes of building your own compatibility testing software. Also, mobile platform validation is explicitly excluded. Also, here's a non-legalese 2005 note from Sun clarifying what their position was when they released the JRL in 2005: https://jdk.dev.java.net/javase_ip_issues.html

Sure, Google are giving away Android, but they are doing so to be competitive in the smartphone market. They even commissioned and sold their own phone to promote the Android platform, and price their advertising services to reflect their brand strength across all internet access platforms. To the extent that Google has a financial interest in uptake of Android, it's commercial activity. The upshot of this is that by offering even a partial Java SE API in Android under authority of the Harmony license, Google has gone way past anything that could be called 'research.'

Google argues that in any case, Dalvik is not a Java VM, and Android is a system for producing Dalvik bytecode, which is nothing like Java bytecode. The obvious response to this is to ask why, then, they're using a subset of the Java SE API in Dalvik. Why have classes called 'Java' and 'Javax' which behave like the Java API does? Why not just start from scratch, rather than touting the possibility of writing code for Android in 'Java'? Let's face it, before this lawsuit began if you went up to any random developer and said 'Quick, what is this Android thing everyone is talking about?' the reply would have been 'Oh, it's a cellphone development platform based on Java.' Why didn't Sun make a fuss about this earlier? Oracle's position seems to be that they should have, and now that they are the new assignees of all Sun's IP, they are moving quickly to enforce the very same rights that Sun's management so carelessly failed to protect.

But, Google says, even if it emulates Java in many respects and incorporates bits of Harmony derived from Java, Dalvik only links to those libraries and linking is explicitly allowed by the Apache license agreement, and does not constitute a 'derivative work.' But that only applies to those parts of Harmony which were created by Apache. It does not confer retroactive rights to the Java SE, or remove the conditions which apply to redistribution of the Java SE - ie that noncommercial use is prohibited without payment of a license fee to Sun. So again, they shouldn't be offering an API that bears a strong resemblance to Sun's work, albeit a partial one. If you had never used Harmony and went straight from JDK to Android, your first thought would be 'oh, looks quite similar to Java SE.' Not permissible, under the license terms.

Everyone has assumed that when they implemented Android on their hardware using the Android SDK, they did so under license from Google; and that Google are in turn authorized to give away Android under the terms of the Apache license, and that Apache are in turn authorized to give away Harmony under the terms of the Java license from Sun. But the grant of rights by Sun specifically excluded deployment of Java SE or any of its parts onto completely new platforms unless a license was first obtained from Sun, and they had never issued any such license despite the urging of other interested parties.

Nor do I think that Google's argument of Dalvik being something fundamentally different because it produces its own bytecode is very strong. In practice, the way it is used is to read in Java source code, spit out some object code, and run it on a VM. The Apache license doesn't distinguish, though; and while the SCSL does allow you to build and distribute your own binaries of things like VMs and compilers (albeit only for research purposes), that same license is the one that specifically limits any kind of reuse on other platforms without an appropriate license...including mobile platforms.

So to wrap up, it seems to me that Google is relying on a certain construction of the SCSL which provides a loophole for them to distribute Dalvik because it is an entirely new product, but the very same license which allows this precludes them from even using the same class names. Referring to the Apache license's exclusion of linked libraries from 'derivative works' is no good, because the same document is pendant on the terms of the underlying agreement between Apache and Sun. Google's argument, when you strip away everything else, appears to contain a scope bug.

sutro• 16 years ago

Great summary. I think Google's Dalvik is quite similar to the unlicensed, unauthorized, crippled JVM that Microsoft shipped with Windows for a while (in an effort to subvert Java) which drew them into a lawsuit with Sun that Sun won. Google wants to have their cake and eat it too -- a development platform broadly accessible to all Java developers, but without having to pay anything or concede any third-party ownership or provenance. Google isn't doing the Java community any favors by forking the platform and muddying the waters. I don't think Google is on firm legal or moral ground. If Oracle's lawsuit helps prevent a UNIX-style balkanization of Java then I'm all for it.

dlevine• 16 years ago

Except that Dalvik isn't a JVM. The Microsoft JVM actually executed Java bytecode with some proprietary additions, which ran afoul of Sun's licensing terms. Dalvik executes dex files, and does so in a completely different manner than a JVM does.

bad_user9• 16 years ago

Microsoft was sued because of contract violations. There is no contract between Google and Sun to speak of. There is no license to defend. That's why the lawsuit is about patents.

> If Oracle's lawsuit helps prevent a UNIX-style balkanization of Java then I'm all for it.

Yeah, it's like they thought about you and your needs when they started this, and not about those 10 billion USD which they want.

heresy• 16 years ago

I'm sure in the US this is probably legally possible, but can you clarify why/how one can patent an API?

An API in and of itself is nothing, it seems ridiculous to me that it can be afforded any legal protections.

I don't see how an API is different from a protocol in a legal sense, and we have reverse engineered protocols all over the place (e.g. Samba).

And from an API point of view: Wine, ReactOS.

I just don't understand what Google is doing wrong, other than succeeding where Sun never did.

anigbrowl4• 16 years ago

Sorry for not answering last night, I overlooked your question. The patents are not for an API, they're for things like sandboxing, preprocessors etc. You can see them all here: http://www.scribd.com/doc/38768100/Oracle-v-Google-Complaint

Should such things be patentable, maybe not but the fact is that they are at present. In the US, if I patent something and you come up with your own invention which does the same thing, I can say you're infringing. It doesn't matter whether you were even aware of my invention (except for the purpose of awarding damages); the patent is granted for the purpose which is fulfilled rather more than the mechanism used. On the upside, patents last 20 years and after than anyone can clone your idea (sooner in some cases).

Claims about the API etc are copyright claims, which here include source code, but also specifications and documentation and so on. The basic argument from Oracle's side is that Sun owned Java, but granted people the freedom to do whatever they liked with it up to a point. Go past that point, and you've broken the agreement and the grant of rights is revoked.

But there was no agreement, you might say - however, there usually is. You have to acknowledge one to download the JDK, and you're agreeing to the terms therein. The reason Google is making such strenuous effort to point out that Dalvik != Java is because Java is not actually so open that they could just port it. Building their own compiler and VM gets them off a particular contractual hook in the licensing terms, but the problem is that going to such lengths to comply with a single provision in the license creates an implicit acceptance of the license as a whole, and (like most contracts) said license also includes a provision that if one part fails when its legality challenged, all the other parts still remain in force.

bad_user9• 16 years ago

     Dalvik only links to those libraries and linking is explicitly allowed by the 
     Apache license agreement, and does not constitute a 'derivative work.' But 
     that only applies to those parts of Harmony which were created by 
     Apache.

Harmony is a clean-room implementation of Java. No parts from Java SE were copied, so licensing terms of Java SE don't apply. There could be licensing terms for Harmony, but that's for the usage of the "Java" trademark, but AFAIK Sun hasn't provided a TCK to Harmony yet.

You also can't copyright API interfaces, so the point that Dalvik works with classes named "java" and "javax" doesn't really hold.

Also note that this lawsuit is about patents + unidentified copyright violations (on which Oracle just got bitch-slapped because they haven't identified them, as required by law), it is not about a breach of license / contract.

EDIT

And you know, Android applications are first developed and compiled using Sun's JDK. Only after that a compiler translates JVM bytecode to Dalvik. THAT's WHAT COMPILERS DO.

Are you going to suggest that compilers are illegal now?

anigbrowl4• 16 years ago

My reading (which like I say, could be wrong) is that Google would like to shift it away from being a breach of license but as written, the SCSL terminates if the Java technology is ported to a different platform without the TCK protocol being satisfied. I think Oracle's answer to the question of what bits of Android violate Sun copyright will be 'all of it.'

I suggest rereading the SCSL, and consider why Harmony couldn't legally proceed without a TCK.

cletus2• 16 years ago

Sun provided a patent license to OpenJDK/Harmony. That's important. Whether or not any code was used affects copyright violations, not patent issues.

Copy someone's code and you violate copyright.

Two people can independently come up with the exact same algorithm, one of them patents it and the other is in violation. That's just how crazy the patent system is.

Sun's license to OpenJDK was contingent on that JDK not being modified. Oracle's argument is that Google has violated that license so is outside the royalty-free patent license for the OpenJDK, which I hate to admit, is actually a reasonable argument.

That'll be enough to get a trial if Oracle wants one. When I first heard about the lawsuit I considered it an incompetent shakedown to justify the purchase price for Sun. I say "incompetent" because they picked the wrong target thinking Google of all companies would simply roll over and cut Oracle into the Android action.

I hate to admit that because I think Oracle's actions are shortsighted and, well, moronic as Google has done more to further the Java platform than anyone (including Sun) and I'm opposed to software patents anyway.

jleard• 16 years ago

I have always found the discussion of Groklaw posts on Slashdot to be interesting. It's curious that this article has not yet been posted there yet.

Google responds aggressively to Oracle Java suit

Related Stories