Oracle vs Google: Triple Damage!

In Norse mythology it’s predicted that the final days of the world will see a supernatural wolf called Sköll swallow the sun before helping to kill Odin, the mightiest of the Gods. In a move that will surprise no ancient Vikings, Oracle – the gigantic database corporation that up swallowed Sun Microsystems – has made a wide-ranging patent and copyright infringement complaint (pdf) against the mighty Google Inc. that may or may not indicate that the world will soon end.

The complaint concerns the use of Java-related technologies in Google’s Android mobile Linux platform, and the details are ugly indeed. Ever since Sun released Java back in 1995, they (and now new owners of the Java IP Oracle) have been looking for ways to make some money off it. Java was intended to provide a solution to the problem of platform fragmentation – the unfortunate situation that means software developers have to write many differing versions of their code to cater for all the different varieties of computing environment out there (Macs, Windows, Unix etc). Sun’s Java provided a layer of virtualisation, so that in theory you could write your Java code once and have it run anywhere, confident that the virtualisation layer (or ‘virtual machine’) on each system would handle the complexities of translating your program for use on the local hardware.

It didn’t help that the technology grew in ways that Sun had not really predicted – seeing far more adoption on the server than in the client area at which it was initially targeted. When mobile phones and set top boxes began to become more powerful and able to run consumer software, Sun launched a ‘Micro Edition’ (ME) of Java that was intended to coalesce this massively fragmented market. This ought to have given Sun a strong, commercialisable position as gatekeeper between software developers and a wide spectrum of hardware platforms, but in the event the technology was not equal to the vision and developers still needed to tweak Java ME software to run efficiently on each platform, causing much woe and despondency. Nevertheless, the mobile market remained Sun’s core focus in the struggle to wring money out of Java. At the same time, Sun was positioning itself as an open source-friendly company, and was therefore receiving quite a lot of pressure from the open source community to put its money where its mouth was and release Java under an open source licence. In 2006, when Sun finally did release Java as free software, the strategy to monetise mobile was still very clear in their licensing choices.

The standard edition of Java – designed to run on desktop computers and servers – was released under the GNU GPL with the so-called ‘Classpath Exception’. This was a licence created by the Free Software Foundation’s GNU project to cover their own free software implementation of the core Java-compatible class libraries (essentially toolkits of functionality for building complex applications). The exception meant that you could use the GPL-licensed libraries to build your applications without having the copyleft requirements of the GPL transmit to your own code. However for the ‘Micro’ edition of Java, Sun used a dual licensing model, leaving out the exception from the GPL version and selling commercial licences for device manufacturers and developers who wanted to write mobile software which was not compelled to be GPL.

Thus, when Google decided it wished to use Java as the development language for software on their eagerly anticipated mobile Linux platform Android, one could argue that it should – finally – have been a huge payday for Sun. However it was not to be. For whatever reason, Google did not want to go down the road of licensing and mandating the use of Java ME. Instead, they took an open source implementation of Java called Apache Harmony and made some variations to it of their own. First they created their own virtual machine called Dalvik, which ran a different kind of code to a standard Java virtual machine (a tool in the Android development kit converts standard Java ‘byte-code’ to the new Android format). They also added many new libraries to support more modern functionality such as Bluetooth and the 3D graphical acceleration technology OpenGL. Everyone – except Sun – was happy. Developers did not need to buy commercial Java ME licences from Sun but could still use the Java skills they had developed over the last decade. Google did not have to rely on another company to mediate their relationship with developers and handset manufacturers. Sun had lost out again. Perhaps their previous highly-publicised love affair with open source meant that they could not easily start suing a competitor over a piece of open source software? Finally in early 2010 a financially embarrassed Sun was acquired by Oracle.

Oracle itself has some open source credentials – they run a proprietary/open dual licensing model for the product Berkeley DB. However the majority of their business is unashamedly closed source and therefore ever since they acquired the Java IP with Sun there has been much speculation that they would come after Google over Android and Dalvik. The complaint that has finally emerged is a wrathful document indeed, accusing Google of wilfully infringing on Sun/Oracle’s patents and copyright and seeking the seizure of all infringing devices, code and even advertising materials. Due to what they see as the egregious cheekiness of the infringement, Oracle want punitive triple damages.

What makes this case interesting – apart from the enormity of the two combatants – is the range of the counts. Along with seven fairly generic technology patents dealing with program compilation and execution, Oracle are also alleging copyright infringement. This would normally imply – in the case of software – that Oracle believes that Google (and quite possibly Apache Harmony) have incorporated verbatim sections of their code in their own products. Here, though, it’s hard to see how that could be the case. As an open source project Harmony’s source has been available for the world to see for many years, and one might have expected any literal code inclusion to have been noticed and acted upon a long time ago. As for the parts added by Google, it seems extremely unlikely that a company with Google’s resources would risk any kind of ‘code contamination’. Dalvik has been widely reported to have used ‘clean room’ reimplementation in its creation – meaning that no-one with any experience of (in this case) Java’s internals would be allowed to contribute any code to the project. The only point of connection between the original and the new code in a clean room reimplementation is the specification – the detailed but high-level description of how the software should operate. Could Oracle be suing over the use of the specification?

Oracle’s complaint says this:

38. The Java platform contains a substantial amount of original material (including
without limitation code, specifications, documentation and other materials) that is copyrightable
subject matter under the Copyright Act, 17 U.S.C. § 101 et seq.

39. Without consent, authorization, approval, or license, Google knowingly, willingly,
and unlawfully copied, prepared, published, and distributed Oracle America’s copyrighted work,
portions thereof, or derivative works and continues to do so. Google’s Android infringes Oracle
America’s copyrights in Java and Google is not licensed to do so.

…so specifications are explicitly listed as a variety of copyright work Oracle considers itself to hold in Java. This is of course true – specifications are copyright works as they are original and complex. The documents themselves are clearly ownable and their owners rightly get peeved if people copy and distribute them without permission. Here’s another quote from the Java Specification Participation Agreement – the agreement which allows third parties to get involved with defining and implementing new parts of Java:

For any Specification produced under a new JSR, the Spec Lead for such JSR shall offer to grant a perpetual, non-exclusive, worldwide, fully paid-up, royalty free, irrevocable license under its licensable copyrights in and patent claims covering the Specification (including rights licensed to the Spec Lead pursuant to Section 4.A and 4.C) to anyone who wishes to create and/or distribute an Independent Implementation of the Spec.

(JSRs are Java Specification Requests – basically descriptions of new features). Taking the language of the complaint along with the language of the participation agreement, it seems quite possible that Oracle are going to argue that any implementation of their specification is a derivative work of that specification and therefore needs a licence from them. This kind of copyright action – essentially claiming a high-level copyright in the design of the technology – is controversial and difficult to win. The more abstract the entity for which you are trying to claim copyright ownership, the harder it is to show indisputable infringement. Verbatim code copying is fairly easy to spot and demonstrate; the duplication of structures and interfaces is harder to demonstrate and is always open to arguments that there is no substantial relationship between the design and the implementation.

Of course, it may be that Oracle does have evidence of more concrete low-level copyright infringement, despite my personal instinct that that is unlikely. However if they will be arguing on the difficult basis of ‘specification infringement’ I have to wonder why. Is it a plan to bolster a set of patents they are unsure about? Somewhat selfishly part of me hopes that the case will play out publicly and not be settled behind closed doors, if only to clarify this controversial area of copyright.

6 thoughts on “Oracle vs Google: Triple Damage!

  1. Ross Gardler

    It’s worth noting that Apache Harmony is also a clean-room implementation. This means that, at least in theroy, there cannot be any verbatim copies of code, or even willful rewrites of inspected code.

    It’s also worth remembering that this case has been brought against Google and not Apache. At this point there is no indication that the case has anything to do with Apache Harmony.

    It is likely to be a very long time before there is any detail in the claims, for now this is little more that two giants making noise.

  2. wally

    While the legal points will matter somewhat- but not entirely – in court, don’t you think this is really a nuisance use of law as a business tactic?
    The people most rewarded in business in modern times have been those who can establish monopolies or near-monopolies and who basically lie, cheat and steal to establish them.

  3. Pietro Pesci Feltri

    Nice article. Very insightful.

    Explain to me the importance about why some Oracle pointed SUN engineers was working on Google (I don’t know if this is true or not).

    On the other side, Google kick out JSR and don’t think that is good to Java at all because lead to java fragmentation as M$ did about 15 years ago.

    Was a bad thing Google don’t help SUN licensing JavaME from them. Sun had a very supportive of Open Source initiatives, no other commercial company matches what it did but unfortunately receive many critique and not enough help. Oracle has a different history :(.

    My heart is in Google side but logic point maybe Oracle has some compelling points in this case.

  4. Jack Williamson

    Shades of SCO against the Universe! Much sound and fury, and little in the way of concrete evidence.

    It will be interesting to see how the GPL angles play out in open court. I suspect that Google will not roll over and play dead, unless they feel that they have absolutely no alternative.

  5. TGM

    Did Sun ever enforce the patents that Oracle has picked up – there is a clause in law that says to prevent losing your rights to patents (copyrights?) you must enforce them. If Sun hasn’t enforced these since the opening up of Java, there may be no case.

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