31 Comments

Summary:

Google Android is under fire from Apple, Microsoft, and Oracle, but only Oracle’s suit seems motivated by truly defensive motives. Apple and Microsoft want to throttle Android adoption to improve their odds while Oracle may want to keep Google from trashing its Java ME licensing business.

shark

The folks in Mountain View should be celebrating. After all, Google Android has been on a tear these past six months, claiming 32 percent of all new smartphone purchases, according to Nielsen data. Dampening the mood at the Googleplex, however, is a rash of lawsuits directly or indirectly aimed at Android. Google may be winning in the mobile market, but it’s unclear how it will fare in court.

It’s also not clear what the company could have done differently. Lawsuits, after all, appear to be par for the course in the mobile market, with at least 20 lawsuits being flung between companies as diverse as Kodak, Oracle, Toshiba, Samsung, and RIM.

But Android particularly annoys Apple, Microsoft, and Oracle, albeit for very different reasons.

Apple, design purist that it is, disdains the momentum Android has seen. Apple is, of course, the early winner in the smartphone market, and its lawsuit against device manufacturer HTC seems to be a means to slow Android’s advances. It hasn’t worked. Not content to sit by and watch its market share erode as developers flock to open-source Android, however, Apple has loosened its grip on developers and is making a serious attempt to win in the market, not simply the courts.

Microsoft, a serial underachiever in mobile, despises Android for the same reason it has long wrung its hands over Linux servers: Microsoft doesn’t know how to compete with free. Google gives Android away, but Microsoft has repeatedly stressed that patent-encumbered Android isn’t free. As Microsoft CEO Steve Ballmer told The Wall Street Journal, “Android has a patent fee. It’s not like Android’s free. You do have to license patents.”

This is the same strategy Microsoft has employed in the server market, signing up licensees to its patent portfolio based on vague FUD (fear, uncertainty and doubt) that Linux violates its patents. If Microsoft can force Google to license its patents, it can make it harder for Google to keep Android free.

It’s by no means clear that Microsoft will win. As TechDirt notes, at least some of the patent claims made are absurd. But it’s possible, as Mary Jo Foley speculates, that Microsoft is hoping to boost interest in Windows 7 by creating FUD around Android. Good luck with that.

The most interesting of the Android patent lawsuits, however, is Oracle’s, in large part because it seems the least motivated by a desire to cripple Android. I’ve written that Oracle sued Google to skim some of Google’s mobile money for itself, and I continue to believe this is part of Oracle’s rationale.

But there’s more to the story than that. Much more.

First, Oracle inherited the lawsuit from Sun. It didn’t initiate it. Sun was actively preparing to sue Google over Android in order to protect Java. Oracle was apprised of the lawsuit during its short due diligence process prior to its acquisition of Sun, and decided to move forward with it, but the suit was founded under Sun CEO Jonathan Schwartz’s leadership, not Oracle CEO Larry Ellison’s.

Second, the lawsuit is likely more related to Oracle’s ability to make money from licensing Java ME generally, and not specifically to Google. Indeed, sources inside Sun/Oracle have told me that negotiations with Google involved roughly $0.00 changing hands. The problem wasn’t one of negotiating a license fee for Java and its associated patents. The problem was more fundamental: Sun (then Oracle) had the option to let Google attempt its end-run around Java ME licensing restrictions, but undoubtedly it would then come under increased pressure from RIM and other licensees not afforded that leeway. To keep its Java ME licensees happy, Sun (Oracle) couldn’t afford to allow Google to snub the Java ME licensing requirements.

So why didn’t Google just go along with Sun and take a fee-free license to use Java ME? Because doing so would have required Google to keep its Java implementation consistent with the standard instead of forking it with its Dalvik virtual machine. As much as Google might talk about standards, Google has much to gain by keeping Android applications on the Android platform, rather than allowing them to run on competing platforms like RIM.

Google has now answered Oracle’s complaint, denying all allegations and eviscerating Oracle for hypocrisy over the open-sourcing of Java. What Google doesn’t do, however, is reveal its own reasons for wanting Java open-sourced, which I believe have much to do with forking Java and little to do with any particular affection for open source.

It thus does little to answer the critiques laid out in Oracle’s response to Google’s formal answer to Oracle’s complaint:

In developing Android, Google chose to use Java code without obtaining a license. Additionally, it modified the technology so it is not compliant with Java’s central design principle to ‘write once and run anywhere.’ Google’s infringement and fragmentation of Java code not only damages Oracle, it clearly harms consumers, developers and device manufacturers.

Whether Oracle is being hypocritical or not is immaterial. Whether Java should be open-sourced or not is also immaterial. Google’s contention that openness is essential to the mobile industry is also immaterial.

What is material is Oracle’s accusation that Google chose to circumvent the Java ME licensing process which RIM and others abide. That is what is at issue, not Google’s appeals to the open-source crowd.

Ironically, then, Oracle, perhaps the greediest of Android’s patent foes, may well have the purest motives in suing over Android. Of the three litigants, only Oracle seems to actually be defending its patents, rather than attempting to throttle Android’s momentum.

Image courtesy flickr user miusam-ck

Related content from GigaOM Pro (sub req’d):

You’re subscribed! If you like, you can update your settings

  1. Why should Google pay to license Java when it doesn’t use Java in Android?

    Also, I believe it was in fact Oracle, not Sun, who filed suit… Gosling says on his blog at http://nighthacks.com/roller/jag/entry/the_shit_finally_hits_the

    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. Alas….

    Which to me reads that Sun might’ve had a suit but never brought it, while Oracle jumped at the chance.

  2. Weak. Ellison wouldn’t survive an audit of all those thousands of device drivers that ship with oracle hardware, lurking therein is a bunch of FOSS.

    Haters gonna hate ( and patent troll )

    1. I would be very surprised to find improperly licensed code in any hardware Oracle ships; Sun was absolutely scrupulous at checking every line of code and in my 5 years oversight of open source at Sun I only know of problems caused by lower standards at companies we acquired. Which we fixed.

  3. @PJ: Whether it uses a *clean* implementation of Java is very much in question. Google says no (read the response), while Oracle says yes. The judge will decide.

    As for who brought the suit, you’re right: it was Oracle. But Sun had every intention of bringing that same suit. Just ask the people involved (as I did).

    @Todd: you’re likely right, but what you argue is beside the point. It’s not a question of whether Oracle uses FOSS. Of course it does. It’s not even a question of whether it uses FOSS correctly. The question is about Google’s use of Oracle’s technology.

    As for hater, you might want to read more of what I’ve written. I’m a big Google fan and an unabashed open source advocate. It’s just in this case Google’s appeal to the open source masses is disingenuous at best. Oracle is not the bad guy here.

    1. Wasn’t accusing you of being a hater, just Ellison.

      Judge smart enough to understand Oracle inherited the technology in question, through acquisition. If Sun didn’t cry wolf pre-acquisition, Oracle is on shaking ground doing so post-acquisition. First motion from the judge should be to subpoena the IP layers Sun had on retainer, ask why then didn’t act. Once it’s determined they had no grounds to, Oracle suit thrown out.

      Disclaimer: I am not an IP attorney, nor do I play one on TV

      :P

  4. Very poorly written article, go elsewhere to learn about this issue!

    1. Would love to see nicely written your thoughts about it.
      @Matt Asay – Thanks for the article, it contains the information I was trying to grasp from different sources. I ardently hope this will not affect Android sells, or – better – boost it.

  5. Great analysis. Thanks.
    A sentence with the words Oracle and pure in it. Who’d have thought.

  6. @Todd: I would be very surprised to find improperly licensed code in any hardware Oracle ships; Sun was absolutely scrupulous at checking every line of code and in my 5 years oversight of open source at Sun I only know of problems caused by lower standards at companies we acquired. Which we fixed.

  7. I found what I will call the “hypocrisy background” quite odd, a bullet shot into Google’s own foot. Not only does it seem irrelevant in court, it’s clear that Sun’s intentions (although muddled) were consistent — they are now Oracle’s intentions. But most of all, Google goes to great pains to point out this “hypocrisy” and then goes straight into telling how great for humanity the OHA is… while ignoring that Google’s services and apps do not have the same openness at all, are closed, are patented, have restrictions on usage and operate as a gating mechanism to access open Android in much the same way that the TCK did/does for Java.

  8. Matt: Was Sun really _actively_preparing_ to sue Google over patent infringement?

    I understand that the sale of Sun was pitched to Oracle with the potential of a lawsuit, but this is subtly different from actually planning of launching a lawsuit itself. Is there any more information on this?

  9. MSFT doesnt know how to compete with free? Matt Asay, how do you come up with this stuff? Office continues to crush Openoffice. Win Server looked linux in the eye, crushed it. OSS on the desktop? No thanks. Your points about the mobile space are fair. But write facts, dont spread Open Source propaganda. It’s borderline unethical as a journalist.

    1. I’d sure love to see where Windows Server is crushing Linux in usage. Sales compare company to company such as Red Hat to MS. Server to server is about usage and any way you slice that Linux looks to be more popular.

  10. Andreas Kuckartz Tuesday, October 5, 2010

    @Matt Asay The question is not if there were people within Sun who had the “intention” to file a lawsuit but if such a decision had been made. Was such a decision made ? Did you ask Jonathan Schwartz ?

Comments have been disabled for this post