FSF sides with Google over Oracle

FSF sides with Google over Oracle

Summary: That legal strategy might have worked under GPLv3 but that license has not been accepted by the industry specifically because of that patent clause.


It took a while, and that delay may be telling in terms of the underlying issue, but the Free Software Foundation has finally issued a public statement on the Oracle-Google Java suit.

They side with Google.

(FSF logo from Wikimedia.)

Not that Google is entirely on the side of the angels, writes the FSF's Brett Smith.

He says they could have avoided the problem by forking IcedTea, which is covered under the GPLv2. They're still not on the side of the angels when it comes to software patents. But that Larry Ellison is one bad (shut your mouth). So the FSF statement says:

An aggressive infringement suit over software patents is a clear attack against someone's freedom to use, share, modify, and redistribute software—freedoms that everyone should always have. Oracle now seeks to take these rights away, not just from Google, but from all Android users.

Smith then calls on Google to use this case as a "come to Jesus" moment, and to defend itself by attacking the very idea of software patents as impractical and a very bad thing.

Over on the other side of the pond, long-time software patent foe Florian Mueller doesn't think joining the IcedTea party would have made any difference. Here is what he wrote to me this morning:

The idea of those GPL defenders is that the right holder (in this case Oracle in succession to Sun) of a GPL'd work can't use his patents against GPL-based forks. So in theory if Google had used Oracle/Sun's GPL'd Java code as the basis for its own virtual machine, the FSF argues it could now claim Oracle/Sun made an implicit patent grant. However, where the FSF is wrong is that this would relate to forks.

That legal strategy might have worked under GPLv3, he adds, but that license has not been accepted by the industry specifically because of that patent clause.

Patents have become strategic weapons. They were created by courts, not the Congress, and both the courts and Congress have refused to reject them since. Now that every large company has an arsenal of such patents, they're assets from which they wish to gain corporate advantage.

But the whole intent of patent, as with copyright, is to encourage the production of more and better stuff. It's not to make the heirs of inventors or writers or film actors wealthy, but to make them productive.

This should be the test. Do Oracle's software patents encourage innovation or discourage it? Would there be more innovation with the patents or without?

Patents are not a property right, and neither are copyrights. That last sentence should not be controversial, but you'd be amazed at just how revolutionary it appears to be in 2010.

Topics: Open Source, Google, Oracle, Software Development

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  • Patents are absolutely necesary...

    ..and for all intents and purposes, they are a property right, even if the property isn't tangible in itself. There are clear owners, there is a right to buy and sell, and there is value in ownership of copyrights and patents.

    In that vein, I like the way that you worded this sentence: "But the whole intent of patent, as with copyright, is to encourage the production of more and better stuff. It?s not to make the heirs of inventors or writers or film actors wealthy, but to make them productive."

    In a capitalist society (the worst kind in the world, except for all others, correct?), these are one and the same thing. I'd shudder to think of the alternative methods that would be used to "make" people productive.

    There are a lot of jobs out there that would not exist without patents, at least not to the extent that they do today - and I'm not talking about CEOs and patent trolls, I'm talking about research institutes and universities who derive more than a small amount of their income from inventions that they neither produce nor use, but which are valuable and wouldn't exist without their effort.
    • RE: FSF sides with Google over Oracle

      @daftkey No. They are not a property right. They are a monopoly, created under the Constitution. Read Article I Section 8 again, please.
      • A monopoly *is* a property


        Especially when it's a monopoly guaranteed by a very vicious gang who posess nuclear weapons and a proven track record of using them...

        Can't get much more "property" than that... :) Possession (and a big stick) are 10/10'ths of the law after all.
      • We're splitting hairs here...

        @DanaBlankenhorn - in a legal sense, yes, you're correct - it is a monopoly privilege.. I'm not saying that, in the purest sense, it is property.. The phrase "for all intents and purposes" seems to have confused you, though.

        As I have mentioned - patents and copyrights are traded, have value, can be damaged or destroyed, and are defended and treated almost the same as pure property.. To look at them as something other than property is doing yourself a disfavour, and leads to such nonsensical statements as "patents were invented to benefit society, not the patent holder". (by the way, need a bridge?)..

        I understand that Oracle and Google are both American companies, but please, don't tell me to read an article from a constitution that doesn't apply to me.. Patents exist for a far different reason here and are handled differently here.

        We also don't hide behind some rose-coloured idea of "benefitting society" - we know people are naturally greedy, and we try our best to both embrace and control that greed - and it seems to work a little better than just assuming that there is some kind of idealogy behind every law and right that was created. As far as patents existing to benefit society goes, they come from the same train of thought that brought you Reganomics and the "trickle-down effect". Let people get the most out of their hard work, and society can benefit from the side-effect of that. Patents are 100% meant to protect inventors, not society.
      • Convoluted rubbish


        Rules that a society makes are all ultimately for the benefit of that society, not for a class of individuals in that society. The fact that individuals can benefit immensely form those rules while at the same time benefiting that society does not change anything. As a matter of fact, we try hard to create rules so that an individual's greed and self interest are directed in ways that both encourages that individual to follow his/her basic instincts, but at the same time benefits society.

        As far as real property rights vs intellectual property rights goes, there is no comparison. Physical property rights are narrow and limited by the existence of that physical property. Intellectual property rights are just a legal construct to encourage certain behavior. It would be possible to create all kinds of intellectual property rights which would have market value, be tradeable and create employment, but would at the same time be highly detrimental to society. Some of the existing intellectual property rights have probably already taken on that latter characteristic. Just because certain groups or individuals benefit, does not make it justifiable.
    • RE: FSF sides with Google over Oracle


      You make a very good argument about how patents are important, but you do not make any argument as to why software should be covered by patents when they are already adequately covered by copyright laws.
      Michael Kelly
      • RE: FSF sides with Google over Oracle

        @Michael Kelly <br>In most of the world <b> software </b> patents is not recognized ; in some countries they are actually <b> specifically stated as [b]not legal [/b] !</b>
    • RE: FSF sides with Google over Oracle

      @daftkey <br>No they are not property rights.<br>They are <b> privileges granted by society </b> and as such society can take them away any time the society want to do it !<br>Privileges can be changed at any time (and they have been). It is not so easy to do that with property rights.

      Also keep in mind that property can be stolen in the sense that the owner no longer has the property ( it has "left the building"). Privileges can not be stolen because it does not go away the way property can do.
  • same as my opinion

    Oracle is the bad guy because it uses patents against OSS.
    The remedy is simple: Oracle should withdraw the lawsuit, repent, and commit more cash for OSS.
    Linux Geek
    • 9.2 for the parody value. You're catching up to Mike...

      @Linux Geek
  • I don't think we're splitting hairs

    Daftkey: Property rights are inalienable. I've heard that early drafts of the declaration read "life, liberty and property."

    A government granted monopoly is not the same thing. For one thing, government can take it away easily, just by passing a law changing the terms of the monopoly. As in every patent act ever passed by Congress.
    • No?

      @DanaBlankenhorn - <br>"Daftkey: Property rights are inalienable. I've heard that early drafts of the declaration read "life, liberty and property.""<br><br>Oh, so if your public works department decided to run a subway through your house, they wouldn't have the right to expropriate your property? That's news.<br><br>"A government granted monopoly is not the same thing. For one thing, government can take it away easily, just by passing a law changing the terms of the monopoly. As in every patent act ever passed by Congress." <br><br>So real property has to be something that cannot be legally taken away by a government act? Is this where you're drawing the line? Does this mean your hard-earned money isn't property? <br><br>Truth be told, if that is where the difference lies, then I don't think the idea of whether patents and copyrights are real property has really been tested in court yet. It's not likely to happen in our lifetime, but if congress did pass a law ending these monopolies, you can bet there would be constitutional court challenges revolving around property rights.
      • RE: FSF sides with Google over Oracle

        @daftkey Property can be taken from you, through due process. But the right to property is inalienable. It's basic. No one denies it.

        On the other hand, copyrights and patents are monopolies the Congress has the right to control, in ways it can't control property.

        This is important, because many people in the copyright and patent industries have deliberately confused the issue by having their rights termed "intellectual property." The key in that is intellectual, not property.
  • RE: FSF sides with Google over Oracle

    Congress has the right to control COPYRIGHT LAW, within the bounds of its authority, ie the US. They do not have control over individual patents or copyrights, the patent and copyright (or trademark) owners maintain that control.

    And congress only has control to the degree that the constitution allows for laws to be changed.

    Congress cannot take a patent or copyrighted work and claim it as their own, nor does congress grant monopolies.

    They simply dont, having a patent does not ensure you have a monopoly, and you should well know that. there is nothing stopping someone from developing something better, and if that is very popular, it may become a market leader.

    You broach the question "Is interlectual property, property?". We'll ofcourse it is, if fact the government can more easily seize your physical property than it can your interlectual property.

    If "what you know", ie interlectual property, is able to be of value to you, ie, you know how to do something better than presently possible, then that knowledge has value, it exists and is as real as any other method of doing something.

    The value to society of an idea, is the knowledge of how to achieve certain goals, with improving techniques and methods. Those techniques and methods are what invention is all about. Rewarding someone for thinking up a better method of achieving a goal is not granting a monopoly.

    The value of the basic mouse trap is not the mouse trap itself, its the idea, method and invention involved in putting together 5 components (and the product of thousands of years of development of those 5 components) to create a mouse trap.

    In other words the value is in the idea, not the end product. The value is in the knowledge, and a patent is your chance (if what you invent is viable) to profit off it for a period of time.

    (98.5% of all registered patents issued in the US fail to reach commercialisation, hardy a Government granted monopoly, more like a very very long shot gamble on the horses!)
    • Re;Is interlectual property, property?

      @Aussie_Troll <br>It is most certainly <b> not ! </b><br>It is a <b> privilege granted by society. </b><br>It is not possible to steal a privilege, but property certainly can be stolen; as in removed from the owner.

      Privileges can be infringed upon in many ways, but it still does not go away !
  • Talk of Property misses a point.

    The FSF is all about software by the people, for the people. Sharing. If you make the mistake of using a non-open software, and a patent claim ensues then you have no-one to blame but yourself, so just don't go there!
    If there is any doubt as to the openness of Java, the correct thing for Google and Android to do is to drop it, and write a genuine open-source language. With any luck this would be less of a mess than Java, too. So patents don't matter. To hell with patents.