12 ms·

Google responds aggressively to Oracle Java suit

297 points by grellas 16y ago

strebler 16y ago
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 16y ago
  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 16y ago
    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 16y ago
      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 16y ago
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 16y ago
  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 16y ago
    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 16y ago
      > 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 16y ago
        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).
cosgroveb 16y ago
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...
- jacquesm 16y ago
  That's a very interesting observation. I think it hinges on the fact that filesharing 'damages' can be directly related to a product that would have otherwise been sold (or at least, so they allege). In the case of Oracle vs Google though, Google receives no payment for their product, but as far as I know neither does Oracle. The java runtime is available to anybody free of charge for the 'price' of a download, so what - if any - damages Oracle intends to show is a mystery to me.
  - notauser 16y ago
    It's fairly disingenuous to say that Google doesn't get paid for sales of Android. They get no direct payment, but they are indirectly paid via: - Increased take up of Google Mail and Google Apps (with associated desktop ad revenue). - Increased take up of Google Voice (both for Android, and also for the iPhone which was at least in part a result of pressure from GV on Android). - Maintenance of a viable mobile ad market. (By which I mean an ad market which isn't Apple-dominated.) Plus every other indirect network benefit. I think a good lawyer could certainly establish a plausible link.
    - jacquesm 16y ago
      Indirect revenue does not come in to play here, just as RedHat isn't obliged to pay Linus Torvalds or RMS. A good lawyer might make that link, but that won't entitle them to a share of that particular pie. And you'd still have to prove that increased use.
8ren 16y ago
Finally, Google gets a chance to appear non-evil! But note: nothing substantive about the patents which are the tricky bit.
tzs 16y ago
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 16y ago
  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 16y ago
    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.
jacquesm 16y ago
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.
- 8ren 16y ago
  I've been thinking about Oracle's stewardship of Java, as an intellectual exercise. I'm going to argue for Oracle (because that's the opposite of how I feel.) (1) Oracle is not a technology company. They don't have an engineering culture; they don't want an engineering culture. So James Gosling left and many others (though oddly, Guy Steele remains: http://labs.oracle.com/people/mybio.php?uid=25706 http://labs.oracle.com/people/mybio.php?uid=25706). But maybe this doesn't matter for Java today... Java has matured (some would say "stagnated") and that doesn't hurt its prospects for business use, but enhances them. And, quite amazingly, Java still has great qualities for today's two largest emerging markets: the Cloud (hey! the network is the computer!) and small embedded systems (like Android.) None too shabby, as-is. (2) Oracle is a sales company. Sun was terrible at making money from Java. Maybe Java... needs Oracle? Microsoft has pushed business cases and business applications, and C# and .Net have gained great acceptance, even though they are confined to MS's stack. Even Apple is succeeding with its closed iPhone/iPad "stack". Why can't Oracle do the same in an Enterprise stack? Yes, many Java developers will really hate it. Yet, that confinement hasn't stopped .net developers. (3) The problem with Oracle is not sales vs. tech, but that they don't seem to be 100% on the ball - which is why Google is able to rip them apart so confidently. While I think the sales-based stewardship I outline above is plausible, it still needs to be well executed.
  - icey 16y ago
lukev 16y ago
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 16y ago
  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 16y ago
    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.
- jcl 16y ago
  Or anything using JITed virtual machines, for that matter...
- blub 16y ago
  Only bad news for corporations like Google that want to benefit as much as possible from Java while giving little back in return. They get the Java name and popularity, but they don't pay any licensing costs because they don't license JavaME and instead try to create their own implementation. In my opinion, Google is both morally and legally in the wrong in this situation and trying to salvage it by playing the part of the open-source-friendly corporation. The fact that they publish open-source code doesn't get them a free pass. They knew what they were doing.
  - davidw 16y ago
    They didn't just try and create their own implementation, they did it. And then released it under a very liberal open source license. And you call that "giving back little in return"? I think if they want to go do stuff like that, it's their own business - it's not a trivial amount of work, and if that's what it takes to get around someone's licensing that they find distasteful, well, so be it. Reimplementing something is not 'morally wrong' in the slightest, in my opinion, as long as you're not out and out stealing code. We would have no Linux or BSD if those people hadn't redone "Unix".
mcmc 16y ago
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_infringement http://en.wikipedia.org/wiki/Statutory_damages_for_copyright...
- stonemetal 16y ago
  The lawsuit is about patents, copyright doesn't apply.
  - davidw 16y ago
    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_google.pdf http://regmedia.co.uk/2010/08/13/oracle_complaint_against_go...
- protomyth 16y ago
  Well, when coverflow is worth a half-billion dollar litigation, I a pretty sure this is a little more valuable.
Estragon 16y ago
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.
- doki_pen 16y ago
  I agree. Should we pretend that companies don't act selfishly? 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? I still hope Google wins though.
  - bad_user 16y ago
    Should we pretend that companies don't act selfishly? As I've said in another comment, corporations are recognized by the law to have rights and responsibilities like real people. For example, corporations can exercise human rights. Corporations can even be convicted of criminal offences, and it would be stupid to not hold them to the same standards as real people. I don't know were this trend is coming from (that companies shouldn't be accountable for anything other than making money) but it doesn't do any good.
    - scott_s 16y ago
      But being a hypocrite is not a crime. The original question was: what legal relevance does that have? I have the same question, although I suspect the answer is "none." Although anything that makes Oracle look bad might help Google by biasing a judge, even if only a little.
      - sprout 16y ago
        http://en.wikipedia.org/wiki/Estoppal http://en.wikipedia.org/wiki/Estoppal Hypocrisy isn't a crime, but it can invalidate a claim if you publicly state one interpretation of law and later state another.
megaman821 16y ago
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 16y ago
  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 16y ago
    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.
andreyf 16y ago
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?
- _delirium 16y ago
  I don't think Google actually has a direct Java source -> Dalvik bytecode compiler. They have a translator that converts any JVM bytecode to Dalvik bytecode, so the usual stack is Java source -> JVM bytecode -> Dalvik bytecode. (This means you can also run other JVM languages on Dalvik.)
  - bad_user 16y ago
    > This means you can also run other JVM languages on Dalvik. Only if that language doesn't do any runtime bytecode manipulation, otherwise it is incompatible.
- adbge 16y ago
  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 16y ago
    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=USPAT6125447 http://www.google.com/patents?vid=USPAT6192476 http://www.google.com/patents?vid=USPAT6192476 http://www.google.com/patents?vid=USPAT5966702 http://www.google.com/patents?vid=USPAT5966702 http://www.patentgenius.com/patent/7426720.html http://www.patentgenius.com/patent/7426720.html http://www.google.com/patents?vid=USPATRE38104 http://www.google.com/patents?vid=USPATRE38104 http://www.google.com/patents?vid=USPAT6910205 http://www.google.com/patents?vid=USPAT6910205 http://www.google.com/patents?vid=USPAT6061520 http://www.google.com/patents?vid=USPAT6061520 Edit: note that http://www.google.com/patents?vid=USPAT7426720 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.
guelo 16y ago
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.
anigbrowl 16y ago
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 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 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 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 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.
jleard 16y ago
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.

297 points by grellas 16y ago

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 16y ago
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 16y ago
  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 16y ago
    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 16y ago

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 16y ago
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 16y ago
  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 16y ago
    > 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 16y ago
      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).

cosgroveb 16y ago

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...

jacquesm 16y ago
That's a very interesting observation. I think it hinges on the fact that filesharing 'damages' can be directly related to a product that would have otherwise been sold (or at least, so they allege). In the case of Oracle vs Google though, Google receives no payment for their product, but as far as I know neither does Oracle. The java runtime is available to anybody free of charge for the 'price' of a download, so what - if any - damages Oracle intends to show is a mystery to me.
- notauser 16y ago
  It's fairly disingenuous to say that Google doesn't get paid for sales of Android. They get no direct payment, but they are indirectly paid via: - Increased take up of Google Mail and Google Apps (with associated desktop ad revenue). - Increased take up of Google Voice (both for Android, and also for the iPhone which was at least in part a result of pressure from GV on Android). - Maintenance of a viable mobile ad market. (By which I mean an ad market which isn't Apple-dominated.) Plus every other indirect network benefit. I think a good lawyer could certainly establish a plausible link.
  - jacquesm 16y ago
    Indirect revenue does not come in to play here, just as RedHat isn't obliged to pay Linus Torvalds or RMS. A good lawyer might make that link, but that won't entitle them to a share of that particular pie. And you'd still have to prove that increased use.

8ren 16y ago

Finally, Google gets a chance to appear non-evil! But note: nothing substantive about the patents which are the tricky bit.

tzs 16y ago

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 16y ago
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 16y ago
  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.

jacquesm 16y ago

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.

8ren 16y ago
I've been thinking about Oracle's stewardship of Java, as an intellectual exercise. I'm going to argue for Oracle (because that's the opposite of how I feel.) (1) Oracle is not a technology company. They don't have an engineering culture; they don't want an engineering culture. So James Gosling left and many others (though oddly, Guy Steele remains: http://labs.oracle.com/people/mybio.php?uid=25706 http://labs.oracle.com/people/mybio.php?uid=25706). But maybe this doesn't matter for Java today... Java has matured (some would say "stagnated") and that doesn't hurt its prospects for business use, but enhances them. And, quite amazingly, Java still has great qualities for today's two largest emerging markets: the Cloud (hey! the network is the computer!) and small embedded systems (like Android.) None too shabby, as-is. (2) Oracle is a sales company. Sun was terrible at making money from Java. Maybe Java... needs Oracle? Microsoft has pushed business cases and business applications, and C# and .Net have gained great acceptance, even though they are confined to MS's stack. Even Apple is succeeding with its closed iPhone/iPad "stack". Why can't Oracle do the same in an Enterprise stack? Yes, many Java developers will really hate it. Yet, that confinement hasn't stopped .net developers. (3) The problem with Oracle is not sales vs. tech, but that they don't seem to be 100% on the ball - which is why Google is able to rip them apart so confidently. While I think the sales-based stewardship I outline above is plausible, it still needs to be well executed.
- icey 16y ago

lukev 16y ago

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 16y ago
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 16y ago
  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.
jcl 16y ago
Or anything using JITed virtual machines, for that matter...
blub 16y ago
Only bad news for corporations like Google that want to benefit as much as possible from Java while giving little back in return. They get the Java name and popularity, but they don't pay any licensing costs because they don't license JavaME and instead try to create their own implementation. In my opinion, Google is both morally and legally in the wrong in this situation and trying to salvage it by playing the part of the open-source-friendly corporation. The fact that they publish open-source code doesn't get them a free pass. They knew what they were doing.
- davidw 16y ago
  They didn't just try and create their own implementation, they did it. And then released it under a very liberal open source license. And you call that "giving back little in return"? I think if they want to go do stuff like that, it's their own business - it's not a trivial amount of work, and if that's what it takes to get around someone's licensing that they find distasteful, well, so be it. Reimplementing something is not 'morally wrong' in the slightest, in my opinion, as long as you're not out and out stealing code. We would have no Linux or BSD if those people hadn't redone "Unix".

mcmc 16y ago

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_infringement http://en.wikipedia.org/wiki/Statutory_damages_for_copyright...

stonemetal 16y ago
The lawsuit is about patents, copyright doesn't apply.
- davidw 16y ago
  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_google.pdf http://regmedia.co.uk/2010/08/13/oracle_complaint_against_go...
protomyth 16y ago
Well, when coverflow is worth a half-billion dollar litigation, I a pretty sure this is a little more valuable.

Estragon 16y ago

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.

doki_pen 16y ago
I agree. Should we pretend that companies don't act selfishly? 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? I still hope Google wins though.
- bad_user 16y ago
  Should we pretend that companies don't act selfishly? As I've said in another comment, corporations are recognized by the law to have rights and responsibilities like real people. For example, corporations can exercise human rights. Corporations can even be convicted of criminal offences, and it would be stupid to not hold them to the same standards as real people. I don't know were this trend is coming from (that companies shouldn't be accountable for anything other than making money) but it doesn't do any good.
  - scott_s 16y ago
    But being a hypocrite is not a crime. The original question was: what legal relevance does that have? I have the same question, although I suspect the answer is "none." Although anything that makes Oracle look bad might help Google by biasing a judge, even if only a little.
    - sprout 16y ago
      http://en.wikipedia.org/wiki/Estoppal http://en.wikipedia.org/wiki/Estoppal Hypocrisy isn't a crime, but it can invalidate a claim if you publicly state one interpretation of law and later state another.

megaman821 16y ago

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 16y ago
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 16y ago
  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.

andreyf 16y ago

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?

_delirium 16y ago
I don't think Google actually has a direct Java source -> Dalvik bytecode compiler. They have a translator that converts any JVM bytecode to Dalvik bytecode, so the usual stack is Java source -> JVM bytecode -> Dalvik bytecode. (This means you can also run other JVM languages on Dalvik.)
- bad_user 16y ago
  > This means you can also run other JVM languages on Dalvik. Only if that language doesn't do any runtime bytecode manipulation, otherwise it is incompatible.
adbge 16y ago
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 16y ago
  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=USPAT6125447 http://www.google.com/patents?vid=USPAT6192476 http://www.google.com/patents?vid=USPAT6192476 http://www.google.com/patents?vid=USPAT5966702 http://www.google.com/patents?vid=USPAT5966702 http://www.patentgenius.com/patent/7426720.html http://www.patentgenius.com/patent/7426720.html http://www.google.com/patents?vid=USPATRE38104 http://www.google.com/patents?vid=USPATRE38104 http://www.google.com/patents?vid=USPAT6910205 http://www.google.com/patents?vid=USPAT6910205 http://www.google.com/patents?vid=USPAT6061520 http://www.google.com/patents?vid=USPAT6061520 Edit: note that http://www.google.com/patents?vid=USPAT7426720 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.

guelo 16y ago

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.

anigbrowl 16y ago

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 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 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 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 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.

jleard 16y ago

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.