CERN is an organisation with a major track record in terms of openness, going back to the very start. The declaration from the 1953 CERN Convention states: “the results of its experimental and theoretical work shall be (…) made generally available”. Well known is the history of the world wide web and the role of Sir Tim Berners-Lee played, who was working at CERN at that time.
Last week I attended and presented at a workshop on ‘open source software with TT Perspective’, organised by the Technology Transfer Network at CERN. Given their long history of developing and using open source software, the TT network was interested in getting to know more about issues related to the commercial exploitation of open source software.
I presented two case studies of projects that originated from academia and managed to generate a lot of interest from the commercial sector. The first one is Apache Wookie (Incubating), a project OSS Watch is working closely with. Wookie started off as part of the TENCompetence project but the people at Bolton University realised that there was value in the widget server they developed as a separate project. By bringing the project to a foundation and working on a W3C standard it attracted the attention of many new potential partners, both from the academic and the commercial sector. Some of these have resulted in collaboration both on the project itself and in new collaborations with Europe.
The other example I presented was TexGen. By open sourcing this modelling tool, the university of Nottingham found many new collaborators. Commercial partners, for example from the aviation industry, were interested in this tool and in the expertise that Nottingham had developed. The open source project turned out to be a very good marketing tool and as a result new investments were made.
These examples show how open source software projects are an excellent example of bringing open innovation into practice. Cross-collaboration between the academic and commercial sector can thrive in these projects and the examples mentioned show that there is not a single best way of achieving this. Wookie and TexGen are quite different projects: Wookie is centred around widgets, which is a very generally applicable technology, and the project carries a permissive licence. TexGen on the other hand is operating in the niche market of modelling the geometry of textile structures and their licence is GPLv2. But in both cases the commercial sector was interested and willing to invest in the project. Being open and making their work generally available as an open source project was a key factor. This involves much more than just choosing a licence and dumping your code; by using the open development methodology projects can become a true platform for open innovation.
Almost two months after Oracle filed suit against Google over the use of Java technologies in Android, Google has responded – somewhat angrily. The gist of Google’s responses are as follows:
- Google has not infringed Oracle’s patents
- …which are invalid anyway
- …and unenforceable because Oracle have waited too long to enforce them
- Also, Google’s Android code can be used in many ways that do not infringe on Oracle’s patents
- Also, we believe that Oracle already made these patents public domain
- In any case, damages should be limited because any infringement was long time and Oracle only just told us… oh and because the patents are invalid anyway
- Did we mention that Oracle are misusing their patents?
- We definitely think that Oracle should pay Google’s attorney fees because Oracle knew they had no case but went ahead anyway
- Also, the US government uses this code so take (some of) this up with them
- Oracle certainly shouldn’t be able to stop Google distributing Android as other less harsh remedies could sort this whole problem out
- …and anyway, Google already has a licence for all this stuff
- …or at least Oracle implied Google had a licence by the way they acted
- Oracle is not trying to right a wrong here; they are trying to commit a wrong
Reading these lists of defences can often be confusing, or amusing, or both. It’s important to remember that these arguments are allowed to be somewhat contradictory; they are designed to stand individually even if some or all of their compatriots are struck down. Thus saying “I wasn’t there, but if I was I didn’t kill him, but if I did he was threatening me and therefore asking for it” is perfectly normal when defending accusations in court.
In addition to this response Google is responding to the claims of copyright infringement that I found so interesting in the previous post by arguing that Oracle’s pleas are just not specific enough to amount to anything at all. Google is asking that these claims therefore be dismissed entirely. Now, with any luck, Oracle will have to respond with specifics on the copyright infringement issue. This is perhaps the most important aspect of the claim from the point of view of the open source community. In asking for the claim to be dismissed, Google point out that Oracle’s vagueness on this issue is unaccountable. After all, this is not an accusation leveled at a closed source program, where there might be some justification for not producing specific examples of code copying; here the source is available to all, and Oracle could easily reproduce or cite the sections which it feels are duplicative of their property. Perhaps Oracle will respond with a more general claim that Android infringes on its copyright in specifications; although as I pointed out in my last post, that can be a hard argument to make successfully.
Some of the uncertainty over the specification issue springs from the history of the so-called Java Community Process, of which Google gives its own account in its response. This is an ugly, contentious and long-running story that I have touched on before and which I don’t propose to fully detail here. In essence, despite nominally releasing Java as open source and creating a process whereby other implementations of Java technologies could get accreditation and necessary IP licences, Sun never really made Java technology open for all potential uses. Their keenness to profit from the mobile sector in particular meant that they set up obstacles to the creation of mobile Java implementations that enjoyed all (potentially) necessary IP licences from Sun. The result of this was that Sun’s Java Micro Edition was somewhat protected from competition by the lack of clarity over whether open source versions of Java could be run on mobile devices without infringing on some of Sun’s intellectual property. Google points out that – when they did not own the Sun IP in question – Oracle repeatedly attacked Sun’s position on this issue and called for Sun to create a simple process whereby any Java implementation could be tested and obtain all necessary licences from Sun. However once Oracle itself acquired the Java IP, they went curiously silent on the issue. In some ways Oracle is in an awkward position here (if their copyright claim relates to specifications). Having loudly called for all Java implementations – regardless of whether they are mobile or not – to be licensed by Sun in the past, they would now find themselves relying on the fact that Sun refused to do as they asked.
The 13th point above is – in the response itself – detailed in this way:
13. All of Oracle’s claims are barred because Oracle has come to this Court with unclean hands.
This essentially means that Google believes that Oracle is using the Court system – whose intended purpose is to create greater fairness and justice – to perpetrate an injustice and achieve an unfair outcome. Whether this accusation is based upon Oracle’s u-turn Java openness remains to be seen.
