
Google responds aggressively to Oracle Java suit - grellas
http://www.groklaw.net/article.php?story=20101005114201136
======
jacquesm
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_user
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?

~~~
gaius
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.

~~~
bad_user

         Consumers don't care
    

Customers (the ones paying money) care about doing business with winners, not
hypocritical trolls (SCO was one, the jury is still out on Oracle). And
starting IP lawsuits instead of delivering products has a desperation stench
attached; and you can bet that Oracle's customers care about that.

And speaking of corporate customers, those include companies like Adobe which
also have investments on top of Java.

    
    
         Oracle's large corporate customers will cheer them on for defending 
         their patents.
    

This line of reasoning I don't get: are they earning anything from Oracle's
lawsuit?

Quite the contrary, unless you have a patent arsenal the size of Microsoft's
or IBM's, patents are one of the biggest nightmares you can have, especially
since this lawsuit proves that companies like Oracle aren't acquiring patents
just for "defensive purposes" and lawsuits are not reserved just to patent
trolls.

    
    
          Google's "do no evil" schtick is a triumph of PR, but that's all it is
    

Corporations are recognized by the law to have rights and responsibilities
like natural persons. Companies should and are punished for their bad behavior
in society.

Regardless of Google's morality, this discussion is not about Google, but
about Oracle's lawsuit. Substitute Google with "X" and it would be the same.

~~~
Andrew_Quentin
_are they earning anything from Oracle's lawsuit?_

Well Oracle would probably be granted damages if so the court finds that the
patent was infringed.

~~~
varikin
Oracle will earn something through winning the lawsuit, but their customers
will not, which is what that line was referring to.

------
cosgroveb
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...

~~~
tzs
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?

~~~
dctoedt
Copyright owners can try to prove "indirect profits."

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-...](http://ftp.resource.org/courts.gov/c/F2/886/886.F2d.1545.87-6321.87-6257.html)

------
lukev
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
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
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.

------
tzs
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.

~~~
wtallis
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.

~~~
tzs
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.

------
guelo
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.

------
Estragon
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.

~~~
pseudonym
>>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.

~~~
recoiledsnake
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.

~~~
inklesspen
Actually, that does carry legal weight. It's called the doctrine of unclean
hands; those who wish equitable relief must themselves act equitably. Acting
hypocritically in this case may fall under that doctrine.

~~~
Andrew_Quentin
Patents are a creation of equity? Would have never thought!

------
andreyf
_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?

~~~
adbge
_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
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.

------
anigbrowl
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.

~~~
bad_user

         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?

~~~
cletus
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.

~~~
bad_user
The patent grant doesn't extend to Harmony because it hasn't passed the TCK
(because it contains a fields of use restriction).

You also can't violate a license, if you haven't agreed to one in the first
place. This is also important!

Violating a license is different than unknowingly infringing on a patent.

~~~
cletus
> You also can't violate a license, if you haven't agreed to one in the first
> place.

Perhaps I chose a misleading word by saying "violating" as it implies only the
problems for license holders. The nature of patents however is that if someone
has a patent affecting your software you are potentially in violation if you
either don't have a license or you do have a license and are in violation of
it (which tends to devolve into a contractual dispute).

------
strebler
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.

~~~
wvenable
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
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.

~~~
wvenable
Actually, Dalvik is a register-based VM and the Java VM is stack-based -- so
they don't have the same semantics.

I agree that it's not really relevant to the lawsuit, but I suspect a lot of
VMs (especially the .NET CLR) contain designs covered by Oracle's patents.

------
kenjackson
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"

~~~
davidw
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.

~~~
kenjackson
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.

~~~
davidw
> my experience in the space of dealing with open source

Could you be more specific? I'm curious, as this is not something that seems
familiar to me, but 'open source' is pretty big.

~~~
kenjackson
Here's one example when I was a consultant doing work on embedded devices, I
saw often very flagrant violations of GPL. When I asked what their policy on
GPL was it was that GPL was only allowed in these specific modules, but not
these other ones. And they had a review process for it.

When I went and reviewed the logs I saw that the review process did happen,
but tailed off and then about two years before I began it had completely
stopped. Yet I could find new code checked in that GPL'ed.

This particular place was really receptive to my suggestions and actually
refactored the code and rewrote some of the code (although I wouldn't call it
clean room). But had I not randomly ran across it, they stopped looking at it.
Legal and management cared a great deal about this, but the devs on the floor
didn't seem to care quite as much. And I'd heard about some that complained
that I had apparently come to slow them down by adding extra process.

In any case, this isn't the only example. I think you'd be surprised how much
BSD code gets shipped w/o attribution. And I think you'd also be surprised at
how much reverse engineering takes place (which is a slightly different issue,
but I think related in liberties devs will often take w/o consulting legal).

~~~
davidw
Aha, embedded: that's definitely an area where companies get busted for GPL
violations.

Apache Harmony is the other side of the coin from this though: it's an open
source project with very strict requirements in terms of contributors:
<http://harmony.apache.org/contribution_policy.html>

And I think Google is likely a lot more careful/knowledgeable than some random
hardware company trying to ship a product as fast as it possibly can. Also, my
guess is that something like Dalvik is not just something you find laying
around on the internet...

~~~
kenjackson
I just read this snippet from Nilay Patel:
[http://www.engadget.com/2010/10/05/google-responds-to-
oracle...](http://www.engadget.com/2010/10/05/google-responds-to-oracles-
android-patent-lawsuit-we-break-it/)

IANAL and at least he is. I'm not really sure what to think from it. In
particular these bullet quoted items: "•Sun open-sourced Java Standard Edition
under the GPL in 2006 and 2007, but didn't include a patent or copyright
license with the code. In order to get that license, developers have to
demonstrate compatibility with the Java specification.

•The only way to demonstrate compatibility with the Java specification is to
use Sun's Technology Compatibility Kit, or TCK, and Sun / Oracle and Apache
have been bickering about the license for the Java TCK, or JCK, for years.
(That's putting it lightly, actually. It's been more like a war.)

•The only license Sun ever offered Apache for the JCK included significant
"field of use" restrictions, including a restriction on mobile phones."

This actually makes me believe that Oracle and Google both know what they're
doing and this ends up really ugly. Can anyone give a second opinion as to if
those bullet points are true?

~~~
davidw
* Apache's implementation is a clean room one - the ASF agreed to no such restrictions on the TCK, and did not get a license for it.

* Dalvik, as other people point out above, is not Java. It is its own virtual machine, built from the ground up by Google, so Oracle can't claim copyright on it, but is going after it with patents, which seems like a low blow (we can't compete, so we'll sue).

~~~
kenjackson
Dalvik seems off the table to me. I suspect Oracle has little case there.

But the Apache stuff seems shadier. It reads like you specifically can't use
the Apache stuff for mobile devices due to patent and copyright issues. Clean
room implementations don't get you around either of those specific legal
issues -- unless I've misunderstood something here.

~~~
davidw
I think you've misunderstood something: Apache never signed anything with Sun.
Apache never got to use the TCK, because the ASF didn't accept those terms,
and therefore, Apache Harmony can't claim to be an implementation of Java,
legally speaking. Copyright doesn't apply because Harmony does not use other
people's code. Patents... may or may not apply, but the complaint only goes
after Dalvik (Google's VM, not Harmony's) in terms of patents, IIRC.

~~~
kenjackson
You can copyright API signatures (classes, methods, functions, etc...). I
assumed that was what was at issue. Is it not? If it is are you saying that
Apache clean roomed the whole thing so there is no interface compatibility or
library similarity?

If that's the case then I agree.

~~~
davidw
My understanding is that no, you cannot copyright an API.

~~~
kenjackson
You can certainly copyright APIs. The Win32 API is copyrighted, for example.
Although I did note while just looking this up that there is a disclaimer that
the copyright allows others to still use it, if they don't also use the code.
No citations are ever given though. I suspect that this has simply become
standard practice and never tested in a court of law.

Could it be the case that Oracle is about to actually test this?

~~~
vetinari
Win32API is not copyrighted. You can find independently created .h files, if
you really want, and they are legal. In WINE or Mingw, for example.

Microsoft used "moving target" tactics to avoid having its APIs cloned.

~~~
kenjackson
This is what Wikipedia, and a few other sources say, "Although Microsoft's
implementation of the Windows API is copyrighted, it is generally accepted due
to legal precedents in the United States that other vendors can emulate
Windows by providing an identical API (but not an identical implementation in
code) without breaching copyright."

I also believe the BCL is copyrighted too. I suspect that large chunks of Java
libraries are as well.

------
mcmc
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...](http://en.wikipedia.org/wiki/Statutory_damages_for_copyright_infringement)

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

~~~
davidw
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...](http://regmedia.co.uk/2010/08/13/oracle_complaint_against_google.pdf)

------
jleard
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.

------
8ren
Finally, Google gets a chance to appear non-evil!

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

------
megaman821
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
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
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.

~~~
wtallis
It's not so much that Harmony doesn't comply with the TCK as Harmony wasn't
allowed to be tested against the TCK except under Faustian terms: in order to
be allowed to test Harmony against the TCK, Apache would have had to make
Harmony non-Free.

