Slashdot Mirror
Legal Analysis of Oracle v. Google
snydeq writes "InfoWorld's Martin Heller provides an in-depth analysis of Oracle's legal argument against Google, a suit that includes seven alleged counts of software process patent infringement and one count of copyright infringement. 'Oracle's desired relief is drastic: not just permanent injunctions, but destruction of all copies that violate copyright (thus, wiping all Android devices), plus triple damages and legal costs. Also, it demands a jury trial,' Heller writes, and while this amounts mainly to saber-rattling, the Supreme Court's recent Bilski ruling did not completely invalidate software process patents despite their shaky ground due to prior art."
Where's Groklaw in all of this?
La vida vale puro chili
Everybody knows how to use Googles' services, but not everybody's had the displeasure of working with Oracle's often slow-as-shit Java databases. Oracle's balls in this case are a typical indication of its niche-but-top-heavy domination in the 'states.
I'll sum up the article:
1) Oracle is suing Java over Android.
2) Oracle hired a really good lawyer, so they must be serious.
3) I sure hate software patents.
4) Oracle would like all copies of Android destroyed, but this isn't likely.
5) Sun might settle out of court.
6) Did I mention I hate software patents?
7) You should try to make life harder for Oracle, since I hate software patents.
With all due respect to the author, half the posts on this Slashdot thread will probably have as much to say and contain as much useful information -- but really, maybe whoever wrote/published the article summary is more to blame for claims the article just doesn't live up to.
It wouldn't help with patent infringement, especially after the fact.
They'd also have to gpl every single android maker's software, which(htc comes to mind) they might not want to.
I'm not saying that Oracle has a legitimate case, but I don't see how Android being GPL'd would invalidate any of their claims if you assume they are valid to begin with.
If the idea is that making Android free eliminates Oracle's ability to litigate against it, consider that a stubborn enough man will insist on trying to get blood from a stone, and Larry Ellison is several orders of magnitude more stubborn than that.
The only thing "in-depth" about this article is the fact the author seems in over his head.
Generally, bash is superior to python in those environments where python is not installed.
I'd almost suspect they just bought Sun to use the cited patents in court. The patents are so broad and ill defined that if they uphold there are not many processes that do not violate them. (Heck -- my coffee-maker probably violates them!)
Please, mod up the submitter. Submitting is his good right, and we should reward his efforts.
Please, mod timothy down for accepting a boring, not-even-a-story.
Please, mod the original author 'overrated', since his story should never have made it into infoworld in the first place.
http://www.groklaw.net/article.php?story=20100815110101756
Just read the first few paragraphs of this and it's 2:30 here... time for bed. But I got as far as what eerily described Sun's suit against Microsoft so long ago.
Sun sued Microsoft successfully for their embrace and extend of Java. They claimed it damaged the Java dream of single binaries that run everywhere. Most of us on slashdot agree with that notion as a Microsoft version of Java would make Sun's Java appear broken due to their huge distribution model.
Now we have Sun (Oracle America) making claims against Google. Not that they are violating a license or agreement, but in spirit may contain the same basic drives as described in the Groklaw article. "New-Sun" is, perhaps, trying to do what "Sun" did before -- successfully take down a giant a step or two. After all, what were the end results of Sun v. Microsoft?
patents != copyright
GPL is a license which grants certain rights using copyright law. This has no bearing on patent infringement.
Want to improve your Karma? Instead of "Post Anonymously", try the "Post Humously" option.
Sun sues Microsoft over Java = GOOD? Oracle sues Google over Java = BAD?
There's some confusion out there about how Google would be in a better position from a patent point of view if it had used existing Java code under the GPL (OpenJDK, phoneME). The Android ecosystem as a whole would have had other benefits (such as making it much harder for the makers of Android-based phones to keep important parts of their source code closed) but it wouldn't really help as far as Oracle's patent infringement allegations are concerned.
The GPLv2 (under which OpenJDK and large parts of phoneME are available) does not contain an explicit patent grant. Only an implicit one. As a result, any fork (derived/modified version) is probably not covered.
The InfoWorld article that this Slashdot story refers to talks a lot about forking as a possible strategy -- especially toward the end, where MySQL is also mentioned. I was very much involved with the debate over whether Oracle should get to acquire MySQL (together with Monty, MySQL's original author/founder, I opposed the deal). In that context, it was also a subject of debate whether MySQL forks would be safe from Oracle patent threats in the future. Eben Moglen, who was basically part of Oracle's legal team and had botched the patent aspect of GPLv2 (thus tried to fix the problem with GPLv3), argued that GPLv2 would take care of those forks. However, the European Commission, which (unlike Moglen) is impartial and has vast legal resources, concluded that the implicit patent grant does not -- at least not reliably, but probably not at all -- protect forks.
If you're interested in more detail on the question of whether Google would be or would have been better off with GPLv2, here's a link to the related part of a blog posting of mine. It discusses that question and right thereafter (or you can go there directly) explains that my work related to Oracle's acquisition of MySQL was not an effort to change MySQL's license away from the GPL to something else. I have meanwhile published documents from the process that serve as conclusive evidence that I argued vehemently against -- not for -- a license change. Still, the GPLv2's limitation concerning patent claims against forks is a fact.
"Covering forks" really isn't very meaningful. What that means is that you can't redistribute the software under the GPL at all since you can't meet the terms of the GPL. As a result, the GPL on OpenJDK (or any other patent-covered software) is really a sham.
(Heck -- my coffee-maker probably violates them!)
Foiled by the old Java patent
These posts express my own personal views, not those of my employer
Ahhhh shit! Time to learn another fucking language and 10 more over-engineered libraries! So much for time with the family.
These posts express my own personal views, not those of my employer
There's a fundamental error in the InfoWorld analysis referenced above:
Oracle simply asks for absolutely standard remedies in this situation. There's nothing evil about it, and it cannot be reasonably interpreted as a strategy to destroy open source as a whole or anything like that.
I'm saying this even though I opposed Oracle's acquisition of Sun. I just want to point out that if a case like this goes to court, the plaintiff will always ask for those kinds of remedies. There's nothing unusual about it. In fact, asking for less would be unusual and would probably confuse the judges as to what Oracle actually wants.
Intellectual property rights are exclusive rights. That's the way the law has designed them -- it's not a matter of Oracle being evil. Those IPRs entitle a right holder to enforce exclusivity. That necessarily means to ask for an injunction, and under such circumstances as the ones of this case (with copyright in play), also the destruction of infringing material.
The way to prevent that scenario from materializing is a license agreement between Oracle and Google. So it's up to the two parties to sit down and negotiate, and I believe we as a community should now expect both of them to be constructive. The court can't impose a license agreement on the two of them. If the court has to rule, it will -- if Oracle is right -- have to enforce exclusivity. That's sort of binary, whereas a license agreement would offer much more flexibility.
It's regrettable that they couldn't work this out before the matter was taken to court. But it's not too late until there is a final court ruling.
A very strict interpretation of the GPL would indeed be incompatible with today's legal framework. There's no such thing as a piece of software that's guaranteed to be patent-unencumbered. So there will also be some exposure to the risk as long as there are software patents (if it were up to me, there wouldn't be any). The whole notion of "free software" is a wonderful vision but as long as there are software patents, it can't materialize to the full extent.
It would actually seem a wiser move, for a Civil case; the burden of proof is much lower, all Oracle must make them see is that 'The company we bought made this, and those guys stole it, based on X, Y, Z (without getting exceedingly technical), where everyone else has had to pay to use it.' Google are the ones who have to get technical, and will likely lose the jury in trying to split hairs to make it seem like they really didn't 'steal' their implementation. It basically comes down to good guy vs bad guy, and Oracle are pretty confident that, should this reach trial, they can play a pretty decent good guy.
I don't post AC. I like my -1, Flamebaits. Trump/Sheen 2012 on the Batshit Insane ticket!
What if we say that our Android devices are running JAndroid, that happens to be very compatible with Java... but of course is not Java...
That's what they did - Android devices run Dalvik, which is actually not compatible with Java at all. However, you can recompile a Java class into a Dalvik class, which is what the SDK does.
How can I vote this article down? It's so insipid and lacks anything new I wonder why it was approved in the first place.
Groklaw did publish something useful and interesting, this piece of opinion is nothing new.
Actually the GPL3 has patent wavier in it so it isn't just a license to do with copyright.
"Also demands a jury trial"
So you're going to grab a bunch of people 'off the street' and try to get them to understand what patents are, what software is and how this software infringes this patent. This will defentally give an honest and fair trial.
Well, based on "destruction of all copies that violate copyright (thus, wiping all Android devices)" I'd say that Oracle isn't aiming for a trial. Bringing a lawsuit like this looks very much like corporate extortion to me.
But then, I'm neither a lawyer nor an American.
Google's market capitalization as of now is around 150 billion dollars, Oracle's around 115 billion dollars. So it wouldn't be easy for Google to just gobble up Oracle. Theoretically, if Google bought Oracle, it could solve the IP problem. But these two companies are more or less on an equal footing in financial terms (although the $35 billion difference in market cap is nothing to sneeze at in absolute terms ;-)).
Google is big, but Google is not big enough to just buy Oracle. Their market caps are pretty close: Google at ~$150bn, Oracle at ~$115bn.
The way I read the European Commission's decision, Oracle submitted Eben's paper as a supporting document along with its reply to the Commission's Statement of Objections. Attaching a supporting document is not the same as making a claim in one's own name. For an example, companies routinely attach market research from the likes of IDC and Gartner to their submissions, and that doesn't mean that they necessarily claim all of what's stated in those reports. (Of course, the way it was used calls into question Eben Moglen's independence by any reasonable standard, but not necessarily formally.)
Also, those merger control processes are pretty confidential. Oracle's response to the Statement of Objections was never published in its entirety. All that's publicly known is what the Commission's published decision states.
If the recording of the hearing were public, it would actually be a real problem for Oracle because of what they (several of them, not just Eben Moglen in his formally independent capacity) said about how to interpret the GPL in general, but I'm not allowed to disclose what exactly they said because the hearing took place behind closed doors and on a confidential basis.
Actually the GPL3 has patent wavier in it so it isn't just a license to do with copyright.
Unless Sun/Oracle released the code under GPLv3, Google can't waive Oracle's patents.
Want to improve your Karma? Instead of "Post Anonymously", try the "Post Humously" option.
I've done two other analyses of Oracle v. Google:
Expert in software patents or patent law? Contribute to the ESP wiki!
> They'd also have to gpl every single android maker's software
Not so. And where there's doubt, they could just use the Classpath exception, just as Sun used for OpenJDK (distributed under GPLv2 plus the "Classpath exception").
Expert in software patents or patent law? Contribute to the ESP wiki!
I propose a new logo for Oracle stories on Slashdot. As Oracle is obviously The Evil Empire, it should get a Death Star as its logo.
>>Actually the GPL3 has patent wavier in it so it isn't just a license to do with copyright.
>Unless Sun/Oracle released the code under GPLv3, Google can't waive Oracle's patents.
You're both wrong. The GPL has had a patent waiver clause since version 2. It states that if you use or distribute code under it you explicitly give a zero-royalty patent permission to all users who receive it under the license. Sun released OpenJDK under GPLv2 so indeed no patents SUN had on OpenJDK code can be asserted on it or anything derived from it (as explicitly required by the license). The fact that the patents changed ownership should not invalidate this in the least - since the licensee of the copyright was also the patent owner at the time - and granted the explicit patent license, the new owner cannot revoke it unless it can show breach of contract.
What GPLv3 did was to EXPAND the patent clause to cover things like the Microsoft/Novell deal - whereby if a company distributes any GPLv3 code - and obtains or purchases patent protection from third party (as Novell did) it HAS to offer this patent protection free of charge to all recipients of the code regardless who they got it from. If they are not willing to do so - they may not distribute (or derive from) the code, or alternatively they can refuse to sign such a deal - but what it basically did was make sure nothing with a GPLv3 license can be in Suze Linux unless Novell manages to convince Microsoft to change the patent protection deal so it's free to all users of said code.
As it turned out - GPLv3 effectively killed the Microsoft patent racket and no distro has signed up for it since Xandros several years ago now.
Either way it wouldn't be google waiving Oracle's patents - SUN already waived them, themselves for any OpenJDK derivatives. The trouble is Google didn't use OpenJDK - in fact technically speaking Android doesn't run java AT ALL.
It doesn't run Harmony either - it contains no JVM whatsoever (the Oracle Lawyers are obviously confused).
Dalvik is NOT a JVM. It does not, indeed CANNOT, run Java Bytecode. It has it's own bytecode format. Google just provided a toolkit that let you compile Java sourcecode to Dalvik Bytecode rather than Java Bytecode. This compiler used the much of the classpath code from Harmony to ensure it was compatible with Java source code as far as possible - but that's the extent of it.
I think Oracle is in for a major shock - Google had originally planned to use an adapted JVM but since SUN wouldn't give them what they needed from one, and Java had patents over it, they chose not to. They instead did a clean-room implementation of their own VM that just happens to have a compiler that can convert Java code (and Bytecode) to it's own. In fact, the technique is identical to the way IKVM runs Java on .net. .net, over java, hell even over Python (beca
That's the real issue here - if Oracle can somehow convince a judge that what Google did DOES in fact violate their patents (unlikely since it's not even a replacement technology or even a compatible one, it merely contains a compatibility layer but Dalvik native Bytecode can in theory be compiled from any language you write a compiler for) then that means Oracle can sue Microsoft next and win under case-law.
They'd control not only Java but essentially all VM-executeable software development ! I sincerely doubt that the patents they have can cover widely enough to give them that (unless the judge is REALLY stupid and Google really REALLY mess up their defense) but I think Larry thinks the possible pay-off is worth the risk of failure.
Look at the damages sought- it includes WIPING EVERY ANDROID CLEAN ! Regardless that these devices belong to CONSUMERS - not to google ! If Oracle can convince the court that any JVM capable of running code translated from Java Bytecode violates it's patents - then wiping every Android at will is the kind of power they will gain, not just in mobile but over all programming. Over
Unicode killed the ASCII-art *
Okay, let's follow this train of thought:
- Oracle wins, forcing destruction of all copies that violate copyright.
- This means _all_ Android handsets must be not only factory reset, but zapped entirely. This also includes _all 3rd party_ apps and services from the professional and recreational community. That's _a lot_ of software.
- All Android users will be up in arms.
- Hundreds of thousands of Americans will file a class action law suit (but against whom, Google or Oracle?).
- Hundreds of thousands of non-Americans will (AFAIK?) not be able to participate in that American lawsuit, but there will most likely be a similar suit on EU-level (by users or by a trade commission).
In the end, the big loser will be the many individuals who were not able to partake in, or did not benefit from, any of the lawsuits, and/or(!) relied upon (as in: have stored data in) apps for which no other alternative exists, or whose data cannot be migrated.
"Good news, everyone!"
Old English legal saying. If you are guilty (or have a bad civil case) choose a jury. If you have a strong case or are innocent, choose a judge. If Oracle had any kind of strong case, they would obviously want a trial without jury because it would be over faster, their costs would be lower and they would get redress quicker. So? So this looks like a classical Von Falkenhayn Battle (after the German WW1 Minister who wanted a battle that would be inconclusive but would go on a long time, so as to wear out the French. Unfortunately, just as with SCO, he wore out the Germans as well.)
From scarped cliff or quarried stone she cries "A thousand types are gone, I care for nothing, no not one."
Maybe because it was too long... ;)
I did read it, but the assertions you made in the rest of your comment showed a lack of understanding of how this legal process works.
Patents are not copyrights and it doesn't matter if Google used Oracle's code directly. Except that ironically if Google did they would have a better case to defend themselves.
The absurdity of patents is the fact that you only have to make something that does something similar to be in violation of a patent. To use a slashdot car metaphor/story - Robert Kearns invented the intermittent wipers and was granted a patent. He went to the big three automakers and they refused his offer to sale them the right to use them. Ford motor company decided that they could make their own intermittent wipers, and eventually Robert Kearns sued Ford for patent infringement. Ford settled the case for $10 million. Kearn subsequently sued Chrysler and ultimately won in court a judgement of $30 million. This was even with the auto makers arguing that the patent needed to meet some standard of originality and novelty.
Sun was granted these patents as they relate to virtual machines. Google appears to have created a clean room implementation that mimics the behavior described in those patents. Oracle the purchaser of Sun feels like they have case for patent infringement against Google and sued. Google can not refer to Microsoft's ".net" as a counter example, since Microsoft and Sun entered into a cross licensing agreement in 2003 as part of the settlement of the long dispute over Microsoft's handling of Java. Both sides have sufficient money to make this a long and drawn out court battle. Google has more to lose than Oracle. Oracle understands this and upped the ante with the severe damage relief being demanded.
I will not be surprised in the end that this is settled without a court judgement with an establishment of cross licensing agreement and some money heading Oracle's way. It's not about "right" or "wrong"... it is all about the Benjamins...
These comments are my own and do not necessarily reflect the views or opinions of my employer or colleagues...
Given that it would seem the jury pool will consist only of people who don't own a cell phone or a computer, which should really provide a crap shoot for all involved. Might as well let the judge be that octopus that perfectly predicted the World Cup results.