Oracle Google Suit Could Kill Android and Threaten Open Source

Last Updated Aug 13, 2010 12:29 PM EDT

In a surprise that, perhaps, shouldn't be, Oracle (ORCL) has filed a patent and copyright infringement suit against Google (GOOG) for the latter's use of Java in its Android mobile operating system. Not only does this have some significant ramifications in the mobile operating system space, but it raises the question of whether companies can safely use open source software.

According to the Oracle press release, "In developing Android, Google knowingly, directly and repeatedly infringed Oracle's Java-related intellectual property. This lawsuit seeks appropriate remedies for their infringement." Here's the actual complaint alleging that Google has infringed seven patents:

Oracle's complaint against Google for Java patent infringement
Oracle underscores that Java was "one of the most important technologies Oracle acquired with Sun." And as CEO Larry Ellison said in a 2006 interview with the Financial Times, the company has always been open to using open source, especially when it provides a free or inexpensive way to gain access to superior technology:

We don't have to fight open source, we have to exploit open source. At some point we could very well choose to have Linux as part of the Oracle database server. We certify it, we test it. We could have JBoss as part of our middleware. It costs us nothing. We can do that, IBM can do that, HP can do that â€" anyone with a large support organisation is free to take that intellectual property and embed it in their own products.I've had this discussion with the CEOs of open source companies. We've looked at buying some, some with very high price tags â€" but since we already have access to all the intellectual property, why wouldn't we just embed this technology in our technology and provide support.
However, in this case, the shoe is on the other foot and Oracle is the one that owns the technology. There is a license agreement that puts restrictions on what a company can do:
Software is confidential and copyrighted. Title to Software and all associated intellectual property rights is retained by Oracle and/or its licensors. Unless enforcement is prohibited by applicable law, you may not modify, decompile, or reverse engineer Software. You acknowledge that Licensed Software is not designed or intended for use in the design, construction, operation or maintenance of any nuclear facility. Oracle Corporation disclaims any express or implied warranty of fitness for such uses. No right, title or interest in or to any trademark, service mark, logo or trade name of Oracle or its licensors is granted under this Agreement. Additional restrictions for developers and/or publishers licenses are set forth in the Supplemental License Terms.
The additional supplemental restrictions extend to modification of code:
C. Java Technology Restrictions. You may not create, modify, or change the behavior of, or authorize your licensees to create, modify, or change the behavior of, classes, interfaces, or subpackages that are in any way identified as "java", "javax", "sun" or similar convention as specified by Oracle in any naming convention designation.D. Source Code. Software may contain source code that, unless expressly licensed for other purposes, is provided solely for reference purposes pursuant to the terms of this Agreement. Source code may not be redistributed unless expressly provided for in this Agreement.
These restrictions have been in the license for at least the last four years, as far as I can tell by looking at older cached versions.

Not that the picture clearly and cleanly supports Oracle. In 2006, Sun released Java under the GNU Public License, version 2 (GPLv2). As James Gosling said at the time, it included "Sun's Java SE (JDK) and Java ME implementations, and adding this license to Sun's Java EE implementation."

The question is whether Google went beyond these, which would allow modification and redistribution, and used other aspects of Java. If so, the company would be in a tough position. If Google adopted non-GPLv2-covered parts of Java with a license, then the modifications could well breach the agreement, leaving it open to suit. If without, as Oracle claims happened, then it is wide open for attack on both the patent and copyright angles.

It's not the first time Google and Java's current owner have been in conflict. In 2007, Sun was concerned about Google's modifications, because they could lead to more fragmentation of the platform. Google's answer was basically that its approach was the solution to fragmentation:

"Google and the other members of the Open Handset Alliance are working to help solve fragmentation and supporting the developer community by creating Android, a mobile platform that responds to the needs of the developers, has the backing of industry leaders, and will be available as open source under a nonrestrictive license," Google said in a statement.
Oracle has asked for a permanent injunction, not back royalties, and that's significant. If Oracle simply wanted money, it would be highly unlikely that a court would grant an injunction, given the U.S. Supreme Court decision in eBay v. MercExchange. As the court said, monetary damages must be inadequate to address the injury. Oracle's claim would be that the fractured version of Java prevents the write-once-run-anywhere intent of the platform.

If Oracle is successful in gaining what it seeks, the results to Google would be dire and could include:

  • immediate end to disseminating any version of Android containing an infringing copy of Java
  • seizure of all copies of Android in existence
  • payment of all "gains, profits, and advantages" that Google obtained, including, possibly, all advertising revenue derived from ads served to Android users, which is probably considerable
  • need to issue a licensed and compliant version of Java, which would likely mean that all Android apps would require rewriting
A suit could and likely will take years, but that could still mean short-term consequences. This is far more of a problem to Android vendors than Apple (AAPL) suit of HTC. Sun's Java patents were enough to scare off threats by Microsoft's (MSFT) Bill Gates.

This alone could turn what has seemed an inexorable growth of Android. But there are even broader ramifications in the technology world, both among high tech companies and any business with a significant IT use. Even when Sun was dissatisfied with Google, it didn't push the matter into a legal showdown, although it might well could have. But Oracle's acquisition changed everything. Now a new owner of the intellectual property decided to enforce its rights. A previously assumed laissez-faire attitude -- whether correctly understood or not -- was out the window.

The use of the term open source as a marketing tool has been around the tech industry for years. After Oracle finally got permission to close the Sun deal, there was concern whether the company would honor not just the letter, but the spirit of open source. Now we have an answer.

I wrote free and open software activist Florian Mueller, who replied:

Chances are that Google indeed implemented things under a non-GPL license (the Apache license). Still that doesn't mean that it's acceptable for Oracle, which in the EU pushes for open standards, to attack like this. The idea of open standards is that they are implemented by different vendors, and under different licenses.
This isn't just about Oracle and Google. Many companies depend on open source software, but how many really investigate and understand the license terms? Have they ensured continued legal access, even after an acquisition of the software owner? And to what degree will CEOs and CFOs, who have clamored to control IT costs, now get scared and tell R&D and IT departments to avoid such products?

Related:

  • Will Oracle Leave Open Source Customers High And Dry?
  • Sun Fell Prey to Open-Washing. Who's Next? Microsoft?
  • Google Makes $1.4 B a Year, and Probably a Lot More, on "Free" Android
  • Apple Launches Patent Lawsuits. Will It Attract More of Them Too?
  • Sun's Ex-CEO: Here's How You Make Steve Jobs or Bill Gates Shut Up
  • Image: Flickr user anitakhart, CC 2.0.
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      Erik Sherman is a widely published writer and editor who also does select ghosting and corporate work. The views expressed in this column belong to Sherman and do not represent the views of CBS Interactive. Follow him on Twitter at @ErikSherman or on Facebook.