Many electrons have been expended in the discussion of Oracle's
recently-filed lawsuit against Google alleging patent and copyright
infringements in the Android platform. Your editor is somewhat reluctant
to contribute to the flood; at this point, the amount of real information
which is available is minimal while the amount of speculation is high.
This will be an important case, though; the world will be watching to see
how it turns out. So here are a few thoughts to add to the pile.
The patents all cover various aspects of the implementation of
Java-based systems. Some of them seem rather trivial; others are quite
broad. One of them, for example, would appear to cover the concept of a
just-in-time compiler. Those wanting details can see the
complaint itself, which lists the patents in question, and this page
on the End Software Patents wiki for a look at each patent and the
beginning of an attempt to collect prior art. The short summary, though,
is that we're just dealing with another set of obnoxious software patents;
these are not the silliest ones your editor has ever seen. The patents
used for Apple's attack on
Android cover much more fundamental concepts.
The patents may or may not stand up to a determined prior-art defense, but
chances are that it will not come to that. Prior art is a hard way to go
when defending against patents, which enter the courtroom under the halo of
presumed validity. What we may see, instead, is an attempt to push the
inadequate Bilski decision to
get the whole mess invalidated as a set of unpatentable abstract ideas.
That would be a risky course which would take years to play out, but there
is the potential, at least, of dealing a severe blow to software patents in
general. One can always dream.
Meanwhile, there are many outstanding questions about whether Oracle (or,
more precisely, Sun before Oracle) has licensed these patents to the world,
either implicitly through the GPLv2 code release, or explicitly via patent
grants. Only a court will be able to provide a definitive answer to that
sort of question, but it is not obvious that such a license exists. The
explicit patent grants are generally tied to exact implementations of the
language and library specifications, with neither subsets nor supersets allowed.
Android's Dalvik is not such an implementation. There may be an implicit
patent grant with Sun's GPL-licensed code, but Android does not use that
code. Dalvik is not governed by Sun's license, so it may be hard to claim
protection under the patent grant which is (implicitly) found in that
But, then, your editor is not a lawyer and his opinions on any subject are
known to have a tenuous grip on reality; just ask your editor's children.
The complaint also alleges copyright infringement, but no specifics are
available at this time. There is some speculation
that Oracle sees an "unauthorized" implementation of the Java specification
as an infringement on that specification's copyright. For now, though, we
must wait to see what Oracle is really claiming.
This is not an attack on free software in general, despite the fact
that Google would like to see the community view it that way. It is an
attack on a specific platform (much of which is free software) by a
rapacious company which has just bought an expensive asset and wants to
squeeze some revenue from it. It seems quite likely that this suit would
have happened in the same way if Dalvik were proprietary. Even if Oracle
gets everything it wants, the damage to the wider free software community
will be limited. We were strong before the advent of Android, and would
remain strong if it were to be removed from the scene.
That said, we are certainly stronger with a free Android than without, and
we surely do not want to see a thriving free software platform taken down
(or taxed) by a patent troll.
What is going on here is that the mobile market is seen as a gold mine, and
everybody is trying to grab a piece of it in one way or another. Some
companies are most interested in gaining their slice through the creation
of mobile platforms that people actually want to buy and use; others are
more inclined toward getting theirs through the courts. And some companies
are doing both. As a result, anybody trying to work in this market is
currently embroiled in lawsuits; see this
diagram in the New York Times for a summary of where things stood back
in March. It will be most interesting to see if this whole mess can be
resolved. In the past, such situations have led to the creation of patent
pools - not a free-software-friendly solution.
Despite this suit, and despite the withdrawal of OpenSolaris, Oracle seems
to be determined to continue to work with the community on other fronts.
The company claims to contribute to a long list of projects, and it
employs a number of well-respected developers. One assumes that those
projects will not start rejecting contributions from those developers. But
neither will those projects deal with Oracle in the future without
wondering, if just for a moment, what the company's motives and goals
really are. It may not be an attack on free software in general, but this
lawsuit has shown that Oracle is willing to use software patents to attack a
specific free software project that it disagrees with.
This move will kill a lot of the trust between Oracle and the
development community; now one cannot help but wonder what might happen if,
say, an OpenSolaris or MySQL fork starts to overshadow the original.
Non-free platforms should be avoided. Sun released much of the Java
code under the GPL - eventually - but it never made Java truly free. The
company went out of its way to retain control over the language and of any
implementations of it; control over the specifications, copyright
licensing policies forcing control over the code, and software patents
held in reserve do not add up to a platform one can trust. Sun seemingly
feared forks above all else, and so went out of its way to eliminate the
freedom to fork whenever possible. The result was a non-free and hazardous
platform; Oracle now seems to be saying that it cannot even be implemented
independently without infringing both patents and copyrights. This kind of
suit would not have happened had Google decided to
make its own version of, say, Python.
There is no absolute security in this world. But there is relative
security, and, by now, it should be clear that the relative security of a
platform owned and controlled by a single corporation is quite low.
Corporations, by their nature, are not trustworthy beasts; even the most
well-intentioned company is only one bad quarter (or one takeover) away
from becoming an aggressive troll. Sun was unlikely to sue over a
not-really-Java virtual machine, but Sun has been replaced by a company
with a rather different mindset. That company now has control over a
platform that many people have based their businesses on, and, as we can
see, it will react strongly when it sees a potential threat to that
How all this will turn out is anybody's guess. Perhaps Google will pay the
troll to have some peace to continue to pursue the goal of total Android
world domination. Perhaps some parts of Android will become more closed.
Or perhaps Google will fight to the end while simultaneously executing an
emergency backup plan which involves shifting the whole platform to the
Ruby language. One thing that can be said is that, as long as software
patents remain a threat, we will continue to see cases like this.
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