4 ms·

Excuse the really really obvious question, but how can you sue somebody for intellectual property infringement on open-source software? Didn't you already give

by seldo 16y ago

Excuse the really really obvious question, but how can you sue somebody for intellectual property infringement on open-source software? Didn't you already give anybody the license to do what they wanted with it? If they've violated the license terms in some way, isn't that different from IP infringement?

squidsoup 16y ago
I'm struggling to understand this as well - I would have thought OSS licensing and software patents would be incompatible.
- alanh 16y ago
  Sadly they are not. This is why the W3C has a patent policy [1] to prevent contributed software and specifications from being covered by patents. [1]: http://www.w3.org/Consortium/Patent-Policy-20040205/ http://www.w3.org/Consortium/Patent-Policy-20040205/ If this still does not make any sense, realize that patents and copyrights, while both forms of IP, are completely different, legally. Also recall how open source GIF implementations were still covered by the Unisys patent.
  - hga 16y ago
    Which is the sort of thing that did the other JEDEC members a fat lot of good when Rambus (spit) went on the warpath: http://en.wikipedia.org/wiki/Rambus#Lawsuits http://en.wikipedia.org/wiki/Rambus#Lawsuits
- el_chapitan 16y ago
  I believe that was the purpose of the GPL3. You know, the one that nobody uses because it is too draconian.
tptacek 16y ago
Of course you can. There'd be no such thing as an enforceable software patent if any company could just sponsor an open source project to implement each part of its product that infringed a patent. Presumably --- hopefully 'grellas will clear this up --- Oracle can measure damages incurred by Google supplanting Sun/Oracle Java with their own Java in terms of percentage points of global smartphone revenue. Here's some more context: http://blogs.gartner.com/brian_prentice/2009/08/06/google-open-source-patent-reform/ http://blogs.gartner.com/brian_prentice/2009/08/06/google-op...
- tzs 16y ago
  I think you slightly misinterpreted Seldo's point. I think what he's getting at is that Java was made open source by Sun. At the very least I'd say that raises some kind of estoppel defense against any alleged infringement of Sun patents. Patent owners can't just go around encouraging people to infringe, and then come back later and sue.
- sorbus 16y ago
  So if I, as a company, release something as open source (licensing the patents[1] with no royalty to anyone who's interested, as long as they follow the rules in the license), then I, as the same company, can turn around and sue anyone who uses it for infringing those same patents? [1] I assume that when software covered by patents is released as open source, the patents are also implicitly granted as part of the license, because if they weren't no one would be able to use it for anything because they would be infringing on the patents. The only situation this can possible make sense in is if Google has somehow violated the license, thereby revoking their permission to use the relevant patents and exposing them to litigation.
  - wmf 16y ago
    You can probably sue somebody who uses different software that infringes your patents, which is what this lawsuit is about.
    - deleted 16y ago
      [deleted]
- patrickaljord 16y ago
  Sun licensed Java under the GPL which gives access to all of the patents on Java. But Google uses its own Java, not Sun's GPL licensed one, maybe they should have gone with the GPL instead...
  - chmike 16y ago
    Why didn't they do it ? Is it because of lack of ARM support ?
wmf 16y ago
It's important to understand that Android doesn't use Oracle's open-source OpenJDK. An argument could be made that Oracle licenses the necessary patents only for OpenJDK and not for alternate implementations such as Dalvik. An argument could be made that Oracle licenses patents only for JVMs that are TCK-compliant, which Dalvik isn't. An argument could be made that Oracle licenses patents for GPLed JVMs but not for ASL-licensed JVMs (because ASL is "too free" perhaps?)
- seldo 16y ago
  Thanks, it naively hadn't occurred to me that Android would be using a non-Sun JVM, and given what you've said it seems that would be a viable route for an IP lawsuit (though it still seems in pretty bad faith).
  - WildUtah 16y ago
    Dalvik would be better if Google had just licensed Oracle's Sun JVM or used the open source version. As an occasional Android developer I am constantly banging against the limitations and performance of Dalvik. It doesn't do memory management nearly as well as the JVM, and it handles dynamic dispatch and one-off closure hacks (local classes) slowly. It won't easily accept generated bytecodes. It has mysterious performance headaches (mostly memory management related I think). I'd prefer that Oracle go to heck with these bogus patents for the health of the industry but Google should have just cooperated from the start.
    - nostrademons 16y ago
      On the flip side, how do you know you wouldn't run up against those limitations on a phone that used OpenJDK? I don't do much mobile dev, but I've had friends that did JavaME development, and they didn't seem to like it any more than Android. Dalvik was designed specifically because Sun's JVM performed poorly on memory-constrained devices. In other words, your issues may be caused by mobile development, not by Android development.
      - 16y ago
jancona 16y ago
The linked article is very unclear about what Oracle is suing about. From this article, it appears that they're claiming patent infringement (not copyright violation): http://www.ft.com/cms/s/2/d95fbb12-a671-11df-8767-00144feabdc0.html http://www.ft.com/cms/s/2/d95fbb12-a671-11df-8767-00144feabd... Sun/Oracle's Java implementation was released under the GPLv2, which doesn't include a patent license. I don't know if they included any patent license with the open source release. Even if they did, it doesn't help Google, because Android doesn't use the Sun/Oracle code, so it wouldn't benefit from any patent license that goes with it. Android is based on the Apache Harmony libraries on top of Google's own Dalvik VM. (Most of the Android code is Apache-licensed.) That code was all developed independent of Sun's Java and the implementation might infringe their patents, even though it doesn't use their code.
- lkjhgfhjk 16y ago
  So take Sun's GPL Java, modify it - by say deleting all the sun code and inserting your own, then release the changes back to Oracle under the GPL!
  - cookiecaper 16y ago
    I don't think that would hold up. The judge would consider it a new work, not a derivative, and therefore not covered by Sun's release of patents for the official JVM.
kenjackson 16y ago
Just because its open source doesn't mean that IP terms still can't be brought against you. Here's a simple example. Lets say that someone contributes someone else's patented algorithm into gcc. Now you ship gcc, not knowing about the patent infringement. All of a sudden you have a patent lawsuit on your hands. This is probably the biggest reason why companies, like Microsoft, even when they do open source, don't accept contributions. Just because someone contributes specific code, doesn't mean they have the legal right to do so. Sun showed that Java could be a timebomb. And in the hands of Larry Ellison, I think Google is just the first victim. Oracle will be going through uses of Java with a fine-tooth comb. Get your duck in order now.
- protomyth 16y ago
  Java isn't a timebomb. Sun has sold licenses to companies (ex. IBM) and the terms are well understood. Google didn't buy a license and is now going to deal with the outcome. If your running WebSphere or some licensed product this move will not affect you. Plus, if you are an IT shop in the fortune 500, you company probably has closer ties with Oracle than Google. // I am a little concerned with non-Java related VM's in case Oracle goes after them with these patents.
StuffMaster 16y ago
If the license doesn't mention patents, then it doesn't cover them. Copyright licenses and patent licenses are two different things. It's pathetic that the two are actually able to intersect in this manner.

by seldo 16y ago

squidsoup 16y ago

I'm struggling to understand this as well - I would have thought OSS licensing and software patents would be incompatible.

alanh 16y ago
Sadly they are not. This is why the W3C has a patent policy [1] to prevent contributed software and specifications from being covered by patents. [1]: http://www.w3.org/Consortium/Patent-Policy-20040205/ http://www.w3.org/Consortium/Patent-Policy-20040205/ If this still does not make any sense, realize that patents and copyrights, while both forms of IP, are completely different, legally. Also recall how open source GIF implementations were still covered by the Unisys patent.
- hga 16y ago
  Which is the sort of thing that did the other JEDEC members a fat lot of good when Rambus (spit) went on the warpath: http://en.wikipedia.org/wiki/Rambus#Lawsuits http://en.wikipedia.org/wiki/Rambus#Lawsuits
el_chapitan 16y ago
I believe that was the purpose of the GPL3. You know, the one that nobody uses because it is too draconian.

tptacek 16y ago

Of course you can. There'd be no such thing as an enforceable software patent if any company could just sponsor an open source project to implement each part of its product that infringed a patent. Presumably --- hopefully 'grellas will clear this up --- Oracle can measure damages incurred by Google supplanting Sun/Oracle Java with their own Java in terms of percentage points of global smartphone revenue. Here's some more context: http://blogs.gartner.com/brian_prentice/2009/08/06/google-open-source-patent-reform/ http://blogs.gartner.com/brian_prentice/2009/08/06/google-op...

tzs 16y ago
I think you slightly misinterpreted Seldo's point. I think what he's getting at is that Java was made open source by Sun. At the very least I'd say that raises some kind of estoppel defense against any alleged infringement of Sun patents. Patent owners can't just go around encouraging people to infringe, and then come back later and sue.
sorbus 16y ago
So if I, as a company, release something as open source (licensing the patents[1] with no royalty to anyone who's interested, as long as they follow the rules in the license), then I, as the same company, can turn around and sue anyone who uses it for infringing those same patents? [1] I assume that when software covered by patents is released as open source, the patents are also implicitly granted as part of the license, because if they weren't no one would be able to use it for anything because they would be infringing on the patents. The only situation this can possible make sense in is if Google has somehow violated the license, thereby revoking their permission to use the relevant patents and exposing them to litigation.
- wmf 16y ago
  You can probably sue somebody who uses different software that infringes your patents, which is what this lawsuit is about.
  - deleted 16y ago
    [deleted]
patrickaljord 16y ago
Sun licensed Java under the GPL which gives access to all of the patents on Java. But Google uses its own Java, not Sun's GPL licensed one, maybe they should have gone with the GPL instead...
- chmike 16y ago
  Why didn't they do it ? Is it because of lack of ARM support ?

wmf 16y ago

It's important to understand that Android doesn't use Oracle's open-source OpenJDK. An argument could be made that Oracle licenses the necessary patents only for OpenJDK and not for alternate implementations such as Dalvik. An argument could be made that Oracle licenses patents only for JVMs that are TCK-compliant, which Dalvik isn't. An argument could be made that Oracle licenses patents for GPLed JVMs but not for ASL-licensed JVMs (because ASL is "too free" perhaps?)

seldo 16y ago
Thanks, it naively hadn't occurred to me that Android would be using a non-Sun JVM, and given what you've said it seems that would be a viable route for an IP lawsuit (though it still seems in pretty bad faith).
- WildUtah 16y ago
  Dalvik would be better if Google had just licensed Oracle's Sun JVM or used the open source version. As an occasional Android developer I am constantly banging against the limitations and performance of Dalvik. It doesn't do memory management nearly as well as the JVM, and it handles dynamic dispatch and one-off closure hacks (local classes) slowly. It won't easily accept generated bytecodes. It has mysterious performance headaches (mostly memory management related I think). I'd prefer that Oracle go to heck with these bogus patents for the health of the industry but Google should have just cooperated from the start.
  - nostrademons 16y ago
    On the flip side, how do you know you wouldn't run up against those limitations on a phone that used OpenJDK? I don't do much mobile dev, but I've had friends that did JavaME development, and they didn't seem to like it any more than Android. Dalvik was designed specifically because Sun's JVM performed poorly on memory-constrained devices. In other words, your issues may be caused by mobile development, not by Android development.
    - 16y ago

jancona 16y ago

The linked article is very unclear about what Oracle is suing about. From this article, it appears that they're claiming patent infringement (not copyright violation): http://www.ft.com/cms/s/2/d95fbb12-a671-11df-8767-00144feabdc0.html http://www.ft.com/cms/s/2/d95fbb12-a671-11df-8767-00144feabd... Sun/Oracle's Java implementation was released under the GPLv2, which doesn't include a patent license. I don't know if they included any patent license with the open source release. Even if they did, it doesn't help Google, because Android doesn't use the Sun/Oracle code, so it wouldn't benefit from any patent license that goes with it. Android is based on the Apache Harmony libraries on top of Google's own Dalvik VM. (Most of the Android code is Apache-licensed.) That code was all developed independent of Sun's Java and the implementation might infringe their patents, even though it doesn't use their code.

lkjhgfhjk 16y ago
So take Sun's GPL Java, modify it - by say deleting all the sun code and inserting your own, then release the changes back to Oracle under the GPL!
- cookiecaper 16y ago
  I don't think that would hold up. The judge would consider it a new work, not a derivative, and therefore not covered by Sun's release of patents for the official JVM.

kenjackson 16y ago

Just because its open source doesn't mean that IP terms still can't be brought against you. Here's a simple example. Lets say that someone contributes someone else's patented algorithm into gcc. Now you ship gcc, not knowing about the patent infringement. All of a sudden you have a patent lawsuit on your hands. This is probably the biggest reason why companies, like Microsoft, even when they do open source, don't accept contributions. Just because someone contributes specific code, doesn't mean they have the legal right to do so. Sun showed that Java could be a timebomb. And in the hands of Larry Ellison, I think Google is just the first victim. Oracle will be going through uses of Java with a fine-tooth comb. Get your duck in order now.

protomyth 16y ago
Java isn't a timebomb. Sun has sold licenses to companies (ex. IBM) and the terms are well understood. Google didn't buy a license and is now going to deal with the outcome. If your running WebSphere or some licensed product this move will not affect you. Plus, if you are an IT shop in the fortune 500, you company probably has closer ties with Oracle than Google. // I am a little concerned with non-Java related VM's in case Oracle goes after them with these patents.

StuffMaster 16y ago

If the license doesn't mention patents, then it doesn't cover them. Copyright licenses and patent licenses are two different things. It's pathetic that the two are actually able to intersect in this manner.