Oracle v Google: the open source perspective

Oracle v Google: the open source perspective

Summary: 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.

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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?

Topics: Open Source, Google, Oracle

Dennis Howlett

About Dennis Howlett

Dennis Howlett is a 40 year veteran in enterprise IT, working with companies large and small across many industries. He endeavors to inform buyers in a no-nonsense manner and spares no vendor that comes under his microscope.

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19 comments
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  • All very interesting. I do not think that Oracle has too much to gain from

    this. It will just hurt java in the end.
    DonnieBoy
    • RE: Oracle v Google: the open source perspective

      @DonnieBoy The only way for Oracle to make money from Java is through licensing. If they don't charge for the single biggest implementation of their technology, I don't see how they can afford to keep an otherwise money draining technology in active development.

      You probably think the real strength behind Java is "the community", but in real world, the biggest strength behind Java was Sun (and now Oracle), and they are (well... at least Oracle is) in it for the money (as Sun should have been in the first place).

      Open source, while a legitimate concept, had almost become a scam in the recent years. This lawsuit will bring some sanity to the open source world and hopefully people will realize that "Free as in freedom*" would (and should) always have a "*Conditions Apply" in fine print because "freedom for community" doesn't pay your (in this case: Sun's/Oracle's) bills, does it?
      m23weiu@...
      • No, there are many ways for Oracle to make money off of Java without

        licensing fees. They can charge for tools, and of course all of their software written in Java.<br><br>This will NOT help with licensing fees for Java anyway. The majority of people use the standard Java that is GPL.

        Finally, Open Source is not a scam, it is a very important way for multiple companies, countries, universities, individuals, to cooperate for the common good. It is a very efficient way for us to cooperate and generate software.

        The old way does not work so well . . . . .
        DonnieBoy
      • RE: Oracle v Google: the open source perspective

        @m23weiu@... Spoken like someone that has never used Java. Any Java dev will tell you that if you removed the open source application servers, libraries, IDE's, testing frameworks, enterprise frameworks and on and on your are left with nothing but a language. They aren't going to get much money for licensing something that isn't usable.

        Most devs aren't going to want to use something tied deeply into a company. The majority of the Java community has been screaming for Java to be set free. Java will end up being forked or Dalvik will find its way into being used as a generic VM and one of the more advanced languages like Groovy may become the standard.
        storm14k
  • I dont buy the "test case" theory, you dont start with the deepest

    pockets, not unless you're case is bullet proof to even the non technical. However #19 in googles response is laughable. That's like saying something in a java library doesnt infringe on something patented that was implemented in C++ first. Complete non sequiter. Also the quote "Oracle sees open-source software as being only a means to an end" is poignent in that you could replace oracle with google and it would be equally dead on true. I'm sure oracle's gone through android and continues to do so and will pile on a few more claims before lift off. And I wouldnt be surprised on the other hand if Larry fully expects to lose this case and pay googles legal fees and is still eager to charge ahead just to be a ball and chain on googles ankles for a couple years to give others a better shot at knocking them down a couple pegs. In the end you just have to say they both deserve each other...
    Johnny Vegas
  • RE: Oracle v Google: the open source perspective

    I fail to see that Oracle has any case at all against Google, and the article does nothing to illuminate. And what's with the sideswipes against Open Source code? What specifically does the author and some of the commenters have against well-written FOSS programs? Are they just mad that somebody else does it better and and doesn't charge for it?
    Elwood Diverse
    • RE: Oracle v Google: the open source perspective

      @ewyatt - I don't get your point. Where are my 'sideswipes' at OSS? And if you don't get what is being said then I can only suggest you've missed all the stuff I included from Groklaw.
      dahowlett
    • RE: Oracle v Google: the open source perspective

      @ewyatt The case against Google is very much as the Sun v. Microsoft J++. The distinction is that the DVM isn't Java, it's analogous to the "embrace" part of "embrace, extend, extinguish." Not that I believe that to be Google's motives, but the reasoning behind the dispute is valid, the concerns legitimate. What we're on the verge of is the forking of Java -- in a bad way. Keep in mind that Sun criticized the Google App Engine, and rightly so, for being a subset of Java. The DVM is similarly a VM for a subset of Java. In and of itself, who cares? They're both *useful* subsets, and I personally think it's great. However, they're not "official," and therin lies the problem.

      The optimal outcome would be for Google et. al. to pay Oracle $$$, and then for Oracle to setup a non-profit Java foundation to deal with all this crap. Until that happens, though, yes, stomp on non-official JVM's.

      (Sure, the JLS is under GPL, but *not* the JVM.)
      THUFIR.HAWAT
      • RE: Oracle v Google: the open source perspective

        @THUFIR.HAWAT I think the whole "don't fork" idea was Sun's downfall. Developers need a platform that allows them to do whatever they need to do....build whatever architecture they need to. I can' understand sticking to one syntax. But if you need to build a server that cuts out some things in order to be more efficient then why not? Why sit on your hands and wait for one company to come up with something when they really have no motive to do so. Thats for .Net folk.

        And how do you so called stomp on a non-official JVM thats not a JVM? Thats like saying no one can write an interpreted language and do JIT compiling. The ONLY reason this even comes up is because its Java class files being converted. They could have used any other language and done the same. Then would Oracle have a case?
        storm14k
  • Joseph Midnight

    Your article is very biased and panders towards the "free" delusion model. Nothing is free. Google is profiting from android by placing its search bar as default on android devices. It is very naive of learned people like yourself to talk like illiterates.
    slickmagic
    • RE: Oracle v Google: the open source perspective

      @slickmagic - where exactly is the bias? I asked OSS people who know more than I do what they thought. What is the matter with that you think it is OK to make charges of illiteracy yet make no defensible case?
      dahowlett
    • RE: Oracle v Google: the open source perspective

      @slickmagic
      Then don't use Google's search bar after you "freely" downloaded Android's source?
      ZackCDLVI
  • RE: Oracle v Google: the open source perspective

    First of all I like this article very much. Thanks for the great amount of well compiled information. I think what we can see here is a turning point in the IT world and intellectual property discussion. Fact is that the patent system needs to be reformed. Nearly everywhere. It is difficult to differentiate what is worth to protect because of its uniqueness and ingenuity and what is simply abusing the idea of protecting intellectual property. People like Larry Ellison would like to patent even the English language or the process of exchanging information by speaking. Banal processes like a mouse click can be patented as a "one-click-order". Here the whole stupidity starts. Clean room implementations and some sort of reverse engineering shouldn't constitute a legal case. Open source has a dramatic influence to the processes in the world. Old fashioned business makers may be scared by the idea to share intellectual property. But only open source is the right medicine to keep pace with the constant increasing speed of innovation. What Oracle is doing will finally hurt mainly Java but not the open source movement. New open source projects will be born with a better legal foundation. The Microsoft's and Oracle's in this world will try to hinder it but they will fail. Won money will be lost around the next corner in another litigation. The energy flow in a company and the ability to catch a market momentum will get diminished so that nobody really wins beside the lawyers. Google's business model is smart and Google understands the mechanics of the open source world. That's why Google is so fast and agile in the market. Instead of fighting the wars of yesterday companies like Oracle and Microsoft should focus to develop attractive products. That is the best way to serve shareholders and humanity.
    hengels
  • RE: Oracle v Google: the open source perspective

    Check out Oracle's web site. They're selling Oracle Open Office for $49.95USD.
    1djk1
  • WRT Unclean Hands

    Dennis, great article and analysis as usual. On the unclean hands section I don't know whether that's accurate. In an Engadget article they note that:

    * Because Apache doesn't have a license to test Harmony with the JCK, it doesn't have a license for Sun's Java patents and copyrights either.
    * Part of the reason Apache wants a JCK license is to assure its users they have the necessary IP rights.
    * Google knew all this and used parts of Harmony in Android anyway.

    Plus with all the ex-Sun people at Google, there is an open (no pun intended) question whether Google's implementation was truly 'clean room'.

    So I wonder whether Groklaw has this interpretation right.

    And I think that Google's claim to be solely focused on supporting the open source movement is BS. They are first and foremost concerned with the growth of the Android platform which is central to the Google franchise right now. They were more than willing to put their concerns over openness aside to support that franchise before when they offered their "joint proposal" with Verizon (who almost singlehandedly has made Android a leading mobile OS in the US) to neuter Net Neutrality. So the holier-than-thou part of the Google response rings more than a little bit hollow to me.
    ggruber66
  • This Lawsuit isn't good for Java or Open Source

    I wouldn't be surprised if this greed induced lawsuit results in eventually forking Java (if legal) or developing something similar and better. It seems to be Oracle's intent on simply cashing in Google's success. Would the lawsuit have been filed if Android was a failure? Highly doubtful.
    Galicja
  • Forking

    @storm14k Allow me to clarify what I meant by fork: I *don't* mean that OpenJDK or Hotspot being forked is bad. I more mean fragmented than forked; and, forking is an essential process with benefits.

    The DVM, as you point out, isn't a JVM per se.

    It's just a frustrating situation because the DVM is a great thing, but the consequences suck.
    THUFIR.HAWAT
  • RE: Oracle v Google: the open source perspective

    And if Google loses, it will just change the language used in Android from Java to a different language. Just like Microsoft did -- it stopped using Java and created C#, which is better than Java in many ways.

    However, I'd propose that there are lots of other languages that would make a really suitable choice for programming Android. How about C#, which ECMA certified as a standard, and Microsoft and its partners have agreed to make the patents available royalty-free? Alternately Adobe's Actionscript 3.0, or how about some type of managed C++? Could we make nice Android apps using Ruby?
    ioot@...
    • RE: Oracle v Google: the open source perspective

      @ioot@... yeah I agree with many of your points. This stuff is more legal than technical, but, my understanding is that, mono (C#) is potentially patent encumbered. So, it seems unlikely that C# on a JVM would be any different :(

      There's always Jruby (or its Microsoft twin, IronRuby), but it's not fully implemented, or so I believe. Supposedly it solves some of the performance problems of Ruby.
      THUFIR.HAWAT