August 17, 2010 1 Comment
A follow-up to this post, now that some additional information is coming out.
James Gosling has made another interesting post with some historical information, including the fact that as a result of an IBM lawsuit some Sun engineers made an unofficial game out of seeing how ridicuouls of a patent they could get approved:
In Sun’s early history, we didn’t think much of patents. While there’s a kernel of good sense in the reasoning for patents, the system itself has gotten goofy. Sun didn’t file many patents initially. But then we got sued by IBM for violating the “RISC patent” – a patent that essentially said “if you make something simpler, it’ll go faster”. Seemed like a blindingly obvious notion that shouldn’t have been patentable, but we got sued, and lost. The penalty was huge. Nearly put us out of business. We survived, but to help protect us from future suits we went on a patenting binge. Even though we had a basic distaste for patents, the game is what it is, and patents are essential in modern corporations, if only as a defensive measure. There was even an unofficial competition to see who could get the goofiest patent through the system. My entry wasn’t nearly the goofiest.
He notes that “Apple’s expected entry into advertising” (now iAds) may have been the initial impetus for Android and adds “Don’t interpret any of my comments as support for Oracle’s suit. There are no guiltless parties with white hats in this little drama. This skirmish isn’t much about patents or principles or programming languages. The suit is far more about ego, money and power.”
Charles Nutter has an extremely detailed post where he breaks down each of the patents one by one. While lengthy, if you’re interested in this topic you should read the entire post (probably twice). Here is part of his conclusion:
So, Does the Suit Have Merit?
I’ll again reiterate that I’m not a lawyer. I’m just a Java developer with a logical mind and a penchant for debunking myths about the Java platform.
The collection of patents specified by the suit seems pretty laughable to me. If I were Google, I wouldn’t be particularly worried about showing prior art for the patents in question or demonstrating how Android/Dalvik don’t actually violate them. Some, like the “mixed mode” patent, don’t actually seem to apply at all. It feels very much like a bunch of Sun engineers got together in a room with a bunch of lawyers and started digging for patents that Google might have violated without actually knowing much about Android or Dalvik to begin with.
But does the suit have merit? It depends if you consider baseless or over-general patents to have merit. The most substantial patent listed here is the “mixed mode” patent, and unless I’m wrong that one doesn’t apply. The others are all variations on prior art, usually specialized for a Java runtime environment (and therefore with some question as to whether they can apply to a non-Java runtime environment that happens to have a translator from Java code). Having read through the suit and scanned the patents, I have to say I’m not particularly worried. But then again, I don’t know what sort of magic David Boies and company might be able to pull off.
He also gives his opinion on the “possible outcomes” as: The Nuclear Option (ie. the death of android, which is *very* unlikely), a Google Licensing Deal, Nothing At All, and the Total Collapse of Software Patents (wouldn’t that be nice).
Matthew Aslett attempts to answer the question of whether Oracle should now be seen as anti-open source:
I want to address is whether Oracle should now be seen as anti-open source.
I believe this theory is flawed. Firstly, because it assumes the open source community is a single, sentient being. As Matt Asay notes: “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.”
Secondly, because it assumes an emotional relationship between Oracle and open source that is equally non-existent.
As Simon Phipps has explained, corporations are reptiles that react instinctively to survive and thrive. Google’s call-to-arms of the Java open source community can be seen in the same light, especially since Google’s prior relationship with the Java community in relation to Android has been somewhat tenuous (rather than repeat what has been written elsewhere I recommend reading Carlo Daffara for the details).
And let’s not forget that Google’s approach to using open source resulted, at least in part, to the creation of a whole new license, one that the company has actively discouraged.
The statement by Oracle’s chief corporate architect Edward Screven, that “Oracle doesn’t really have an open source-specific strategy” must be understood in the context of this opportunism. The company’s engagement with open source is tactical, and changes on a case-by-case basis. It is wrong, therefore, to expect continuity in Oracle’s approach to different open source projects.
I’m not trying to excuse Oracle’s actions with regards to either Java or OpenSolaris, but I think each must be considered separately. [update – to clarify] Any Oracle related open source project should be approached with caution but… we should all be equally cautious about being encouraged to see the patent claims as a matter of good versus evil or open versus closed.
This is a legal matter between two corporations both of which are opportunistic in their approaches to open source engagement (unless it suits them to be otherwise).
In other words, as Matt Asay explains: “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.”
Stephen O’Grady attempts to answer a question that has been on many people minds with this post: WHY?
The latter point is perhaps the most important. It’s the only real clue we have to answer the only real question here: what does Oracle want?
Because the answer to that is: not what they’ve asked for in the complaint. Oracle may indeed request recompense for “the damages sustained and will sustain” as well as “any gains, profits, and advantages obtained by Google as a result of Google’s acts of infringement and Google’s use and publication of the copied materials.” But you can be sure that that’s not all they want.
As Andy Updegrove covers, the obvious motivation is financial. Specifically, maximizing the return on the six and a half billion capital expense that bought Sun’s assets, the patents in question included. If Oracle realized the same return as Sun from the Microsoft settlement concerning Java, for example, the cost of Sun becomes four billion. Remaking what was arguably a bargain into a steal.
Purely financial justifications for this suit are less than satisfying, however.
To begin with, Oracle would effectively be trading long term ecosystem health for a short term cash windfall. Unless the settlement is historically immense – a difficult outcome to rely on from a planning perspective – it’s not clear that this would be a net win. For all of its sustained success in the application and database markets, Oracle remains as fundamentally dependent on the Java ecosystem as Sun was before it. Even for a company that’s sought and found growth through stack ownership and category dominance, the health of the ecosystem is and must remain a concern. While the original technology was technically groundbreaking and differentiated, the key to Java’s success lay outside its featurelist. What drove its ascension within enterprises was the reality that Java offered at least the potential for independence from vendors. That will not be surrendered lightly, whatever Oracle may believe. A Java ecosystem dominated by Oracle is a doomed ecosystem. While it’s far from clear that this action by itself would create that perception amongst current Java ecosystem participants, it, coupled with Oracle’s own aggressive history, would be unlikely to be beneficial from a participation standpoint. As Andy put it, “it’s less clear to me what the strategic value would be to Oracle to prevent Google for incorporating Java into Android, or to impede the marketplace generally from relying on Java.”
It can be argued, then, that this is a high risk exercise for Oracle. The only satisfactory return for high risk exercise is high reward. Based on past software settlements, it’s difficult to project this being material to Oracle financially over a multi-year timeframe. Which is why I suspect there’s more at stake here than royalties.
What that is is non-obvious. All that we know about what Oracle wants, realistically, is what they are prepared to surrender. Aside from bearing the hard costs of litigation, Oracle is willing to absorb soft costs in risk to reputation and participation rates in the Java ecosystem. We must expect then that Oracle’s expected return will be commensurate with these costs. Oracle is many things, but stupid generally isn’t one of them.
Perhaps, as Forbes speculates, this is a prelude to a cross-licensing arrangement. Though if that’s the case, I’m far less certain that this suit actually has anything to do with Android; might patents like this “Large-scale data processing in a distributed and parallel processing enviornment” or this “Information extraction from a database” be relevant to Oracle’s core businesses? Perhaps Google is already or plans to compete directly with Oracle in ways we are not aware of yet. Or maybe Oracle just wants Google to buy a bunch of database licenses.
Whatever the real reason, this is a surprising decision even for a firm as aggressive as Oracle. The only thing more surprising is how quickly it turned Google – excoriated around the web for their questionable net neutrality proposal with Verizon – back into the good guys. Even if you speculate about differences in Oracle’s evaluations of its own assets – that Oracle believes that Java has peaked in popularity, for example, and that this is a one time opportunity to cash in on an asset that must, inevitably, decline – the calculus of this move fails. Nothing in Oracle’s product roadmaps hint at such a realization. Nor would a one time windfall, however large, be sufficient to offset the costs of a significant decline in Oracle’s Java related products.
As for predictions, I’ll make only one: whoever wins will also lose. This suit is going to negatively impact – probably substantially – Java adoption. The enterprise technology landscape is more fragmented by the day, as it transitions from .NET or Java othodoxy to multi-language heterogeneity. Oracle’s suit will accelerate this process as it introduces for the first time legal uncertainty around the Java platform. Apple and Microsoft will be thrilled by this development, and scores of competitive languages and platforms are likely to see improved traction as a result of Java defections.
Add up these costs, and the only supportable conclusion is that Oracle’s ambitions here are big.
As Stephen notes, it’s exceedingly difficult to ascertain what Oracle is *really* after here. As more information comes out, their motivation may become more clear and I’ll guess this won’t be nearly my last post on the topic.
In tangentially related news, it’s now confirmed that Oracle is killing OpenSolaris although it remains committed to Solaris itself and will be bringing Solaris Express back from the grave. It also appears that Oracle will continue to commit resources to MySQL, at least for the time being.