Oracle v Google: the open source perspective

What does the open source community think of the Oracle v Google lawsuit. Some of the answers are predictable but there are many nuances to this game.

Ever since the start of the Oracle v Google lawsuit, I've been wondering what the open source community thinks of this. Google, as one of the de facto leaders from the vendor side of the commercial OSS groupings has come back guns blazing. Sam Diaz characterizes Google's response (PDF) as calling out Oracle as hypocritical:

Google essentially called out Oracle for its hypocrisy over Java, noting that Oracle took one position about the open-sourcing of Java when it was belonged to Sun. But now that Oracle has acquired Sun, the company has changed its tune.

Well yes, that's a part of it for sure, but that doesn't win lawsuits.

Groklaw has a detailed, point by point analysis which can be summarized as follows:

Oracle is coming to this with unclean hands and muddled thinking. Here's how the commentary goes:

This history does make Oracle look bad, taking one position before it owned Java and the opposite the moment it obtained it. 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.

Here's another:

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.

As for patents, Google states pointblank that it doesn't infringe:

24. Google does not infringe any valid and enforceable claim of the Patents-in-Suit, either directly or indirectly.

And here's what matters in the patent context, repeated after each claim:

30. This is an exceptional case under 35 U.S.C. § 285 because Oracle filed its Complaint with knowledge of the facts stated in this Counterclaim.

That means they will be asking, as you saw in the relief section, that they think Oracle should have to pay them for the expense of answering and defending against the patent infringement litigation.

None of this is too difficult to understand, despite the inherent complexities of patent and copyright law. But it is the ferocity and detail of Google's response that intrigues me. One source who I cannot name but whose opinion among FOSS groups is not inconsiderable said that Google has known about this from way before the days of Oracle's Sun acquisition. It has had years to prepare for a case that Sun was not prepared to bring since it was felt this would adversely affect relationships with the OSS community. Assuming that is true then Google has had plenty of time to both prepare and anticipate an action should there be a change of control at Sun.

It doesn't take a rocket scientist to realize that Oracle's penchant for litigation meant Google was staring at a time bomb for which it needed a robust defense. However, it is not quite that straightforward. When the lawsuit started Stephen O'Grady of Redmonk predicted:

...whoever wins will also lose. This suit is going to negatively impact – probably substantially – Java adoption. The enterprise technology landscape is more fragmented by the day, as it transitions from .NET or Java othodoxy to multi-language heterogeneity. Oracle’s suit will accelerate this process as it introduces for the first time legal uncertainty around the Java platform. Apple and Microsoft will be thrilled by this development, and scores of competitive languages and platforms are likely to see improved traction as a result of Java defections.

You can argue that Stephen's prediction has already come true with the forking of OpenOffice to LibreOffice. And guess who was one of the sponsors? You guessed it: Google.

I spoke with James Governor, another Redmonk analyst and firm believer in the virtues of open source. Lending weight to Stephen's position, he says: "If Google wins then it is open season on open source. If Oracle wins, then who else do they sue? Everyone? It would be the biggest stock price driver Oracle has ever acquired. " If you think Stephen and James are correct then Google has to win.

The claim is a legal fiction but the commercial implications are huge

There is no way, from the complaint, to know why Oracle thinks it has such a claim. I thought we'd find out when Google responded, but they don't know either...The idea in the law is that you have to tell what your claim is, so the other side has a chance to defend itself. If you recall, SCO was sanctioned for not telling what it claimed IBM did wrong, so that later when it wanted to add materials, it was not allowed to. The magistrate judge said they were like a store detective grabbing someone leaving the store, claiming they stole something, but not saying what, instead handing the person a catalog and telling them, "What you stole is in the catalog somewhere, so you find it. You know what you took."

That doesn't fly in copyright infringement litigation. You have to tell. But what is really interesting here is the tone and one twist. Android, Google points out, is open source. The whole world can read the source code, so there is no excuse for Oracle not to be specific

This is interesting. By introducing the specter of SCO/IBM, the sense among those I have spoken with is that this will quietly go away. I somehow doubt it. The commercial issues are simply too big to ignore and the wallets of each party are extremely deep. If Oracle has fallen into a legal trap of its own making then it will be hard put to both lay down on this and then refile. At least that is the consensus view.

Coincidentally, I had the opportunity to ask the following question of senior Google lawyers via a third party: "What is Google's objective in defending the Oracle lawsuit? Is it revenue protection or something else?" The answer that came back was interesting:

"Two of the lawyers took a very serious interest. Both looked horrified at the suggestion of 'something else.' So aghast, in fact, that the senior guy actually answered the question: "We're defending it to protect the open web and the principle of open source." He clearly found it remarkable that anyone would even ask this question. At this point, another Google lawyer cut in and added: "Although you understand we're not saying anything publicly about this" (simply because it's an ongoing legal case)."

That's very much in line with what Google is asserting, even if it does have the feel of something that was meant to sound sincere but not quite hitting the mark. It doesn't answer the commercial question. Unfortunately, I was not in a position to detail a follow up question. That can come at a later time.

Given what Stephen and James assert, the question of commercial interests cannot be ignored. I asked Steven Vaughn-Nichols, editor-in-chief, Practical Technology to provide me with some insights into the extent to which the OSS community trusts Oracle. His detailed response in email goes as follows:

"I believe Oracle is an open-source company. But, and this is where they leave the rest of the open-source community behind, Oracle sees open-source software as being only a means to an end. Oracles supports open source only in so much as it contributes to Oracle's bottom line, hence it's purely self-serving Red Hat Linux Enterprise fork: Oracle. Unbreakable Linux. Oracle...Beyond what open source is for developers, open source for business means making a bigger pie that everyone can share in. How big a piece of the pie you get depends on how well you deliver service, support, and improvements. Oracle, thank you very much, still wants to have the whole pie to itself. Specifically, Oracle wants to build a high-priced software pie stack to call its own...Java will be dough between the pie's layers.

The open-source community 'trusts' that Oracle will follow these goals with all its considerable resources and that any benefits that will come open source's way will be side-effects, not a goal."

As I read the overall tone of what Steven V-N is saying, the OSS community may not care much for Oracle but it will live with it for as long as it sees Oracle treading a path that aligns with their objectives. Failing that, they'll simply fork. Not for them, the tortuous legal road but then even Oracle would have problems pinning down OSS groups in any legal fight. Even if it attempted such a move, the blowback would be way more than even Oracle can withstand. Oracle may be many things but stupid is not one of them. Reckless perhaps, but stupid? No.

Back to Groklaw.

Google isn't scared:

I pick up from the tone that Google is mad, not worried about the outcome, and that it intends to fight to the death on Claim VIII. [copyright infringement re: Android] I might be reading too much into it, but I don't think so. The lawyers take their stance based on what the client has told them it wants and based on what they expect will be the outcome. Usually at this point in litigation, the filings are fairly bland, though. Both sides try to reveal as little as possible, because discovery is coming and they don't want to help the other side at all or get stuck in something they said too soon, knowing that cases morph as more information gets known. Here, the language is stronger than that, and I believe it indicates that Google believes that this motion has a good shot at being granted, or rather that it believes that it *should* be granted. It's pretty hard to predict what a judge will or won't do, particularly at the beginning, but Google isn't afraid. That's what I see.

This brings us full circle to the question of preparedness. I'm not sure Oracle was prepared for this and in one sense I admire Google. They've come back with all the ferocity that often characterizes OSS debate. They'll win friends on that one.

Oracle? Your move

Sam Diaz report detailed Oracle's reply:

In developing Android, Google chose to use Java code without obtaining a license. Additionally, it modified the technology so it is not compliant with Java’s central design principle to “write once and run anywhere.”  Google’s infringement and fragmentation of Java code not only damages Oracle, it clearly harms consumers, developers and device manufacturers.

That's a simple reiteration of what is already in the lawsuit without adding any new information but confirming Stephen O'Grady's view of 'winners losing.' If anything it is a weaker argument than we've already seen because Oracle has chosen not to elaborate on what 'clearly harms' means.

More telling is that once again, Oracle is up to its old tricks. On an issue of significant importance to the whole industry, the spokesperson is not a named executive but a person in global communications. Without wishing to revisit one of my old hobby horses in detail, it is not good enough. If Oracle cannot come from behind the Red Stack Curtain on matters of importance then we have every right to dismiss its global comms fronted statements.

Is Oracle serious? Does it matter?

While at Oracle Open World, the Google case was an aside topic of some 10 minutes discussion between myself and an Oracle executive I am not prepared to name. Oracle's view is they believe Google should pay something for use of the Java code. What that 'something' amounts to was not clear, even to Oracle. However, that's not the real story. I noticed the person I was speaking with was not as confident as I expected and certainly not gung-ho on the outcome of the case. That struck me as unusual. My sense is that Oracle is using this as a test case. That fits in with the theory that Oracle may have grounds for extracting money from many players. At least in the short term. So - are they serious? I think so, but hesitant.

Should OSS keep a close eye on this? Absolutely. If you subscribe to Stephen O'Grady and James Governor's position as representative of respected advisors to the OSS/FOSS communities then a resolution one way or the other is not really a desirable outcome. Or maybe what it does is accelerate fragmentation? While that may sound horrific it could easily lead to new centers of gravity from which fresh open source innovation emerges.

What do you think? Has Oracle opened a Pandora's Box?


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