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Summary:

Oracle’s lawsuit against Google over alleged IP violations in Android isn’t a threat to open source, but is a wake-up call that capitalism is alive and well in the open-source community, and its participants had better be ready to play hard.

For those who persist in believing in an altruistic peace, love, and open-source software development community, Oracle’s lawsuit (PDF) against Google over alleged patent and copyright violations in Android should serve as a wake-up call. There is no Santa Claus. No Easter Bunny. And no such thing as an open-source community separate and distinct from the profit-driven free market that drives software development, generally.

Some may dismiss this thought, arguing that Oracle is a particularly egregious example of capitalism run amok, and a poor custodian of the open-source Java development community and process. Indeed, this is Google’s first line of defense in its attempt to rally public opinion to its side.

But Google is no saint in this lawsuit, and ultimately, Google needs to answer Oracle’s specific allegations that it “knowingly, directly and repeatedly” violated Oracle’s Java-related copyrights and patents. This isn’t about open source for Oracle, really. Nor is it about open source for Google, however much it may want to publicly posture as such.

It’s about Oracle using its patent portfolio in the same way that IBM has for a decade, and that Microsoft has in the last few years. To make a little money, yes, and possibly, as I argue below, to bully its way to a seat at the Android table.

It was just a matter of time.

Sun had similar concerns about Google’s use of Java back in 2007. Oracle, however, decided to do something about it, perhaps because its financial sense is that much sharper than Sun’s was.

Indeed, as Java pioneer and former Sun employee James Gosling speculates, Oracle was spoiling for this fight before it ever owned the Java assets:

Oracle finally filed a patent lawsuit against Google. Not a big surprise. During the integration meetings between Sun and Oracle where we were being grilled about the patent situation between Sun and Google, we could see the Oracle lawyer’s eyes sparkle. Filing patent suits was never in Sun’s genetic code.

For those who see this as a nail in Android’s coffin and the opening lines of open source’s eulogy, there are two facts that cut directly against such beliefs:

Oracle is greedy and Oracle isn’t stupid.

Indeed, I think there’s much to the notion that this may be Oracle’s way of pressuring Google into a favorable agreement for Android that bolsters Oracle’s still nascent mobile business. If Oracle were in this for short-term lawsuit awards, it would have filed in a plaintiff’s paradise like the Eastern District of Texas. Instead, it filed in San Jose.

Oracle, in my view, wants to tap into the Android steamroller. Of course, as Ryan Paul suggested to me, “Most Android IP is available royalty-free,” which would leave little actual IP over which to negotiate. So maybe it’s simply a matter of asserting Oracle’s ownership of Java so as to put itself into a position to make more money from its growing patent portfolio.

Carlo Daffara’s reasoning rings true:

Oracle found a substantial technology it acquired (Java) losing value in what is the hottest tech market today, namely mobile systems. Sun had no credible plan to update JavaME, no credible alternative, and thus Android (that is loosely Java based) is at the same time a threat to an acquired asset and (from their point of view) a stolen technology. Since anyone can follow the same path, Oracle wants to make sure that no one else would try to leverage Java to create an unlicensed (and uncontrolled) copy.

Buttressing this argument is follow-up commentary from Gosling, who reminds us that while Sun tried to get Google’s attention with its Java-related patent portfolio because Sun wanted “some compensation for the large amount we would be spending on engineering,” Google had a “financial model that benefited themselves (that they weren’t about to share).”

Still think Google is unequivocally the good guy in this suit, and Oracle is the baddie?

Regardless, this lawsuit isn’t about making Oracle popular with the open-source crowd or anyone else. It’s a simple business decision, and one that Google has far from adequately answered by appealing to the open-source community to stand behind it.

Yes, it’s possible – perhaps likely – that the lawsuit will spur the industry to accelerate its shift away from Java.

It’s also possible that all the fear, uncertainty, and doubt might actually give Microsoft a chance in mobile, not to mention make .Net an even better alternative for Java developers, as Novell developer Miguel de Icaza postulates.

But as for open source, Oracle will continue to support open-source projects where it makes fiscal sense, and it will likely launch lawsuits on a case-by-case basis, irrespective of open source. It’s not going to launch an all-out assault on Java users, the open-source community, or anyone else.

That would be stupid, and Oracle is not stupid. I think the open-source community is sophisticated enough to grok this and move on. It’s not as if anyone was expecting motherhood and apple pie from Larry Ellison.

Oracle is not the least bit religious or romantic about open source or anything else. It never has been. This lawsuit may jar some into realizing this, but Oracle CEO Larry Ellison spelled it out in crystal clear detail back in 2006, when asked if open source was disruptive to Oracle’s business:

If an open source product gets good enough, we’ll simply take it. Take Apache: once Apache got better than our own web server, we threw it away and took Apache. So the great thing about open source is nobody owns it — a company like Oracle is free to take it for nothing, include it in our products and charge for support, and that’s what we’ll do. So it is not disruptive at all — you have to find places to add value. Once open source gets good enough, competing with it would be insane….

We don’t have to fight open source, we have to exploit open source.

And exploit it Oracle will. Not everyone will take as Machiavellian a line as Ellison, but the entire industry is now on alert, if it wasn’t already: Open source is not a free ride. No one would casually borrow SAP’s proprietary software and expect to get away with it. In similar manner, no one should cavalierly take open-source code without inquiring into its provenance, ownership, etc.

In this particular case, Google almost certainly took care to protect itself against IP infringement, which makes the lawsuit no easy slam-dunk for Oracle. But even an open-source luminary like Bruce Perens is quick to point out that Google’s replacement of Java ME’s Swing widget toolkit and AWT graphical user interface class in favor of its own GUI may have violated its license. This wasn’t a big deal when Sun was the owner because, as Gosling noted, lawsuits weren’t in Sun’s genetic DNA.

But Oracle, not Sun, now owns Java, and it has a very different genetic makeup. Hence, this lawsuit, while not a sign of Armageddon for open source, serves as a clear warning to Google and everyone else to take the same level of care when using open source as when using proprietary software.

And beware of Oracle. It bites.

By Matt Asay

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  1. Sounds to me like Ellison needs a lesson in what open-source means, and specifically what it doesn’t:

    So the great thing about open source is nobody owns it

    Wrong, its copyright holders own their respective contributions.

    a company like Oracle is free to take it for nothing, include it in our products and charge for support, and that’s what we’ll do.

    Wrong; the company must abide by terms of the license, which may have such requirements as distributing the source for all original and modified parts of the code. That is not “nothing”, as some have found out to their cost.

    What we do learn is what Ellison and Oracle would like “open-source” to be, and that’s a mark against them regardless of the case concerning Dalvik-is-or-isn’t-java or not.

    1. The case filed is not about copyright. It is about patents. They are not the same thing.

  2. Derrick Harris Monday, August 16, 2010

    Great post. At the very least, this looks like an attempt by Oracle to compel proactive compliance from everyone else. If it will sue Google, what chance does anyone else stand of avoiding Oracle’s patent-prosecution attention?

  3. Good post. Love that quote from the former Sun guy. I suspect very little will come of this — however: the potential is huge and could harm Android and help Windows Phone 7. I wrote something similar last week, for those who cant get enough of these Silicon Valley battles:

    http://brianshall.com/content/how-oracle-lawsuit-could-cut-head-android

  4. Silly opening, Matt. Yes, there is a an altruistic Open Source software development community, but neither Sun nor Google nor Oracle were ever part of them. There will be an altruistic Open Source community as long as people produce Open Source for altruistic reasons, and there are still quite a lot of those folks. I’ve never been able to understand what problem you have with them, and they mostly see you as a creep due to your continued abuse of them.

  5. Google doesn’t care about Java – literally. They didn’t pick it to spread the evangelic light, they wrote their own compiler and it doesn’t produce java bytecode – it produces Dalvik bytecode. Java was just an input language.
    If Oracle is too much bother Google will just throw the java back in their faces and change the input language to something else – say Basic. And write a new compiler to generate the Dalvik bytecode.
    Problem solved. Now go away Oracle.

  6. It’s always interesting to read such articles, because the authors always knew it was going to happen. Sometimes, I wonder why no one said it before, but probably because it was too obvious…

  7. Oracle, Google and Java – Oh My « Jeremy’s Blog Tuesday, August 17, 2010

    [...] Reading: Techdirt SAI Matt Asay Groklaw Bradley M. Kuhn VAR [...]

  8. People will move away from Java into .net? This is quite a development now that Microsoft has become the benevolent supporter of the developer community.

    (In anycase, good article! I like the nuance in your analysis.)

  9. patent litigation Thursday, August 19, 2010

    Funny, in all of the media reports about this, nothing that I have read has referred to Oracle as a “patent troll.” However, you can be sure that, if a smaller company had filed a patent enforcement suit to protect patents that it had recently acquired, everyone would immediately denounce it as a troll. It shows that there is a pretty strong double standard, and that a troll is in the eye of the beholder.

  10. Since when was Java Open Source? Sure they (Sun the corporation) gave the source away for people to help them debug it but only in the last years die they attempted to GPL it (though never for mobile). The Oracle Google debate has very little to do with Open Source. It it did, it would be the Harmony folks who should be suing.

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