Linux and Open Source

Steven J. Vaughan-Nichols & Paula Rooney

Google pits the law against its open source designs

By | September 7, 2010, 5:21am PDT

Summary: When you don’t have the law on your side you argue the facts, and when you don’t have the facts you argue the law, but when you don’t have either you pound the table. Google is doing a lot of table pounding.

Could Google’s PR machine be hiding a weak legal case?

Google made its case recently to The New York Times, arguing that Oracle is trying to “take back” Java, and the Times got a law professor to call the case part of an “open source proxy war” in which open source is used as a weapon.

Bad Oracle. Nasty, nasty Oracle. (Then they play right into it by hiring Mark Hurd.)

Product is also a weapon in this war, I would argue. Google was dumping its Wave project. So how big a deal is it that it puts Wave in a box? Isn’t that more of a paper-or-plastic question? It’s like the rich kid who gives poor kids his old toys for Christmas.

For Google, I suspect, image is everything. This chart makes clear that Android phones are catching up with Apple’s, in terms of mobile data use. But are these really Android phones? Or are they carrier phones built on top of Android?

It is telling that, on the legal case, we still haven’t heard from groups like the Free Software Foundation. Some response is said to be forthcoming. But if this is as easy a call as Google makes out, why hasn’t it been made yet?

I’m as big a fan of Google as anyone. I like their stuff and I like their style. But there’s an old legal saying that when you don’t have the law on your side you argue the facts, and when you don’t have the facts you argue the law, but when you don’t have either you pound the table.

Google is doing a lot of table pounding.

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Topics

Dana Blankenhorn has been a business journalist for 30 years, a tech freelancer since 1983.

Disclosure

Dana Blankenhorn

Dana Blankenhorn has been a journalist, writer and part-time futurist for over 30 years.

At the present moment I run only a personal blog in addition to my ZDNet open source blog.

DanaBlankenhorn.Com has the subtitle The War Against Oil. In the past I have used it to write about political history, e-commerce, personal matters, some ideas related to open source, and The World of Always On, which is the idea of using sensors, motes and RFID to turn WiFi links into platforms for applications which live in the air.

My IRA account at Schwab holds a few tech shares, most notably some Intel and Applied Materials, but there are no open source companies in it. I don’t even own any CBS stock.

Biography

Dana Blankenhorn

Dana Blankenhorn has been a business journalist for nearly 25 years and has covered the online world professionally since 1985. He founded the Interactive Age Daily for CMP Media, and has written for the Chicago Tribune, Advertising Age's "NetMarketing" supplement, and dozens of other publications over the years.

Talkback Most Recent of 13 Talkback(s)

  • google has the community
    and I'm sure there are plenty of lawyers that would be working pro bono on behalf of open source.
    So Oracle, watch out!...dump the lawsuit, ask for redemption and make a big donation to OSS to erase the shame Larry brought upon Java.
    ZDNet Gravatar
    Linux Geek
    7th Sep 2010
  • RE: Google pits the law against its open source designs
    @Linux Geek Let me be the first to say this. Not gonna happen.
    ZDNet Gravatar
    DanaBlankenhorn
    7th Sep 2010
  • Pro-bono freetard lawyers will get eaten alive
    @Linux Geek By the sharks in pinstripes Oracle will show up with. "You don't bring a knife to a gun fight!"
    ZDNet Gravatar
    matthew_maurice
    7th Sep 2010
  • Where is the content of this article?
    Word salad. Join me as I try to detect a coherent idea in this article!!!

    'Could Google PR machine be hiding a weak legal case'

    TRANSLATION: Can this troll bait be hiding a weak effort at writing?

    'So how big a deal is it that it [Google] puts Wave in a box?
    TRANSLATION: What the hell does wave have to do with Android or Java? Nothing.

    'For Google, I suspect, image is everything.'
    TRANSLATION: I just thought I would throw in this meaningless statement.

    'But are these really Android phones?'
    TRANSLATION: Maybe they are really the 'first wave' (get it?) of alien invaders!

    'It is telling that, on the legal case, we still haven't heard from groups like the Free Software Foundation.'
    TRANSLATION: So FSF prefers to *understand* what Oracle's lawsuit means before speaking. Unlike the author.

    "I'm as big a fan of Google as anyone... But there's am old legal saying' that a bird in the hand is worth two in the bush.
    TRANSLATION: That's all I have? Next week I will just throw a basketball against the keyboard and see if my editor will publish it!
    ZDNet Gravatar
    JohnVoter
    7th Sep 2010
  • Sorry you don't like it
    @JohnVoter There's an important point here, which is that Google has not made a substantive reply to the Oracle suit, and (so far) neither have any open source advocates in the legal profession. Meanwhile they scream about Oracle attacking open source, which may not be the case.
    ZDNet Gravatar
    DanaBlankenhorn
    7th Sep 2010
  • What the Oracle lawsuit is and is not about
    First off, the Oracle lawsuit is NOT a case of rebranding software released as public domain (Java) as closed source.

    Because Google is not using Oracle's source code. They used a clean room effort to build a new byte code interpreter. Then they added a byte code translator so that people can use the public domain Apache classes, WHICH ORACLE DOES NOT OWN.

    What this lawsuit IS is an attempt to use software patents (look up 'bad idea' in the dictionary) to attack independently developed software such as the Android effort.

    Google will claim that they either don't use these patents, or that they are obvious, or that they are preexisting practice.

    Oracle's patents are dangerous. Likely there is patent claim out there somewhere that might support an infringement claim against everything the open software community has developed (Ruby, Python, etc).
    ZDNet Gravatar
    JohnVoter
    7th Sep 2010
  • Thanks for saying where you're coming from
    @JohnVoter That's the most substantive defense of Google I've seen. Basically they're claiming to have re-invented Java? That may satisfy copyright law, but I don't think it satisfies patent law.

    If I create a mousetrap and patent it, then you go into a clean room and create the same mousetrap you are still subject to my patent, even if you can prove you haven't violated copyright.
    ZDNet Gravatar
    DanaBlankenhorn
    7th Sep 2010
  • Agreed
    @DanaBlankenhorn
    I completely agree with your point about patents. As you say, I'm subject to your mousetrap patent regardless of whether I made my mousetrap in a clean room effort.

    When Google was thinking about Android, there were various reasons why they didn't feel they could live with the Java licensing agreements. So, Google responded with the clean room strategy, which shields them from copyright claims. Now Oracle has responded with a suit that claims patent infringement.

    It looks to me that Google is working the ref (jury) when it talks about Oracle breaking their promise of open source.

    Nevertheless, I hope Oracle loses here, since as a general rule, I want programmers to be free to make 'compatible software', like Sun/Oracle's Openoffice opening MS Word documents; or Google/Android opening Java class libraries that were not written by Oracle.

    To me, the most interesting question is *why* Google wanted to gain expertise in mobile phone development in the first place.

    Let me add that I am not an attorney, so you can take my opinions for what they are worth.
    ZDNet Gravatar
    JohnVoter
    7th Sep 2010
  • RE: Google pits the law against its open source designs
    @DanaBlankenhorn As Proudhon didn't say: "all (software) property is (patent) theft".

    The big difference between copyright and patent is clarity. Under copyright, if you wrote it yourself, you know that you own it, or should. It is - at least in principle - clear who owns it. Under patent, it's all down to interpretation, or who can shout loudest and longest in court. It's like some kind of post-modernist legal nightmare.

    I challenge any supporter of software patents to write an innovative program with more than 100 lines of code and prove that it doesn't infringe anyone's patents.

    @JohnVoter, great analysis but why limit your concern to the impact on open software? Get big business worried about the impact of software patents on their ownership of their own corporate infrastructure and you may find patent reform comes easier!
    ZDNet Gravatar
    francis.norton@...
    8th Sep 2010
  • RE: Google pits the law against its open source designs
    @DanaBlankenhorn and @JohnVoter -- I'm confused. Java's licensing expressly permits others to create their own VMs that interpret the byte code (doesn't it?), and many others have done so (BEA's [now, ironically, Oracle's] JRockIt probably being the most widely used one, but certainly not the only one -- heck, GNU has one, gij). What did Google do that's any different from others who built VMs from the ground up? Isn't the claim really based on an assertion from Oracle that they DIDN'T use a sufficiently clean clean-room?

    In other words, I think you guys are wrong in asserting that what Google did ipso facto violates patents ... my understanding is it's about the "how", not the "what" of what they did.

    Obviously IANAL.
    ZDNet Gravatar
    daboochmeister
    8th Sep 2010
  • RE: Google pits the law against its open source designs
    @DanaBlankenhorn
    While you're right Dana, playing the patent card, especially in software circles, is very dangerous.

    The JVM and Google's Dalvik are both virtual machines. But it is Wang who patented the concept of the virtual machine. While Sun paid off Wang, the Sun patent probably hinges on the Wang patent.

    And this is the problem with software patents. Someone always has something on which your patent stands upon. All modern software is built on the concepts that went before. We stand on the shoulders of our ancestors.

    What this means is that you could find yourself in the Windows-Mac-Star situation. For those who don't remember this, Apple sued MS for "look and feel" since it felt that MS windows has ripped off the Mac GUI. So Xerox sued Apple under the same terms since the Mac GUI was clearly based on Xerox's Star GUI.

    The other problem that Oracle could run into is a variation of the VHS-Betamax problem. By suing for patent infringement on a software patent, they are claiming proprietary ownership of that material. That means, they could demand licenses. Sony did that with Betamax which is why it lost out to VHS. While Java is too mature for that, the case could cause a lot of cooling interests and migration away from Java.

    All in all, Larry could find that even if he wins this battle, it puts him strategically worse in the war.
    ZDNet Gravatar
    mheartwood
    8th Sep 2010
  • John Voter
    @JohnVoter Thanks for the excellent analysis. You make some great points. This is why I love blogging -- for the talkbacks, and people like you who know stuff.
    ZDNet Gravatar
    DanaBlankenhorn
    7th Sep 2010
  • johnvoter is right about this article
    word salad.
    "Next week I will just throw a basketball against the keyboard and see if my editor will publish it!"
    ZDNet Gravatar
    akabeer1983
    8th Sep 2010

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