That’s one heck of a claim. Unfortunately, the experts agree.
Java, while never a key language in Linux, is the core language for literally hundreds of software development companies and organizations. They range in size from IBM with its J9 JVM (Java Virtual Machine) and Red Hat with its JBoss middleware stack to pure open-source projects such as the Apache/Jakarta, to individual developers who are members of the Java Community Process (JCP). It’s hard to think of a software development business that doesn’t use its own house-brew of Java somewhere in its product line or development stack.
Since, Oracle is an open-source company, complete with its own Linux distribution, the Red Hat-based Unbreakable Linux, you might be wondering why Oracle is doing this. James Gosling, Java’s creator, thinks it’s because Oracle wants money: “Oracle finally filed a patent lawsuit against Google. Not a big surprise. 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.”
Maybe it is though for Oracle. Certainly, Oracle has never been averse to going to the courtroom mats during its long history of hostile takeovers, such as its acquisition of PeopleSoft.
Oracle can go after Google because, while Java’s previous owner Sun, did open-source Java under the GPLv2, the Java specification patent grants that went along with it, are only valid if developers use fully-compliant Java implementation. Many, perhaps most, developers have used a variety of open-source Java implementations that aren’t fully compliant. This leaves them potentially vulnerable to hostile Oracle lawsuits.
Don’t think that Oracle isn’t aware of this. As Dan Kusnetzky, VP of Research Operations for The 451 Group, a prominent analyst firm, said, “This appears to be a warning shot across the bow of the whole industry. One could now question if Java will still be considered an open platform.”
John Weatherby, Jr., executive director of the Open Source Software Institute (OSSI), an organization that promotes the use of open-source software in government, agreed with Kusnetzky. Weatherby remarked, “I would assume this is an initial step by Oracle to start laying out a perimeter in their new sandbox and to let everyone know that they do, in fact, own the Sun assets. If you wished to send that message throughout the industry, what better target to smack than Google?”
Many observers were shocked by Oracle’s move. Jay Lyman, The 451 Group’s open-source analyst said, “This is a surprising move.” While Lyman expected that there was “a coming storm over software patents, I did not anticipate it would be initiated by Oracle.”
Lyman is hopeful that there will be a quick resolution. But, since “Oracle is a founding member of the Linux Foundation and Google is a member, I’m frankly surprised this was not settled within that consortium.”
Lyman’s unsure what Oracle really hopes to net from its lawsuit. “I’m not sure the gains are going to be worth the gamble here for Oracle. We may see the full weight of the pro-FOSS, anti-software patent movement come down on Oracle. I’ve already seen references to ‘SCOracle,’ which is a linkage to SCO Group and its failed legal efforts and not what any vendor initiating legal action would possibly want.”
Mark Webbink, Executive Director for the Center for Patent Innovations at New York Law School and former SVP at Red Hat, thinks the lawsuit is about the money. “I suspect this is about Oracle monetizing Java. Of course, when Larry Ellison’s ego is involved, who knows. If it is about monetizing Java, it will be the second biggest mistake made with Java. The first was Sun failing to open source it early on and capture that market. Instead, they left the door open for Microsoft.”
Andrew “Andy” Updegrove, a partner with Gesmer Updegrove LLP, a Boston law firm, and the editor of ConsortiumInfo.org the site for information about standards, thinks that “Clearly, Java was one of the Sun crown jewels, so the question was: ‘What to do with it?’ Since Sun would presumably be quite happy to license the patents to Google, that suggests that the motivation is monetary rather than strategic. Android has taken hold enough now that the Oracle suit won’t hold it back — which also means that if Oracle wins, its rewards could be substantial — and continue to become more so.”
He’s not the only one seeing dollar signs in Oracle’s eyes. Thomas Carey, a partner at the IP (intellectual property) law firm Sunstein Kann Murphy & Timbers LLP remarked that, “Google and its Android system make an irresistible target. If you could lay a claim to that revenue stream, you would.”
Carey added, “The Java developers license has for a long time contained terms that put developers on notice that commercial deployment of a product that includes Java requires the developer to make arrangements with Sun, including a royalty payment. Perhaps Google believes that it has come up with a non-infringing clone.”
Indeed, this is exactly what Google seems to have intended with its release of Dalvik, its JVM for Android. Dalvik’s path around Sun’s Java requirements was seen from its start as potentially being legally dodgy.”
Carey expects that “with two big companies with sophisticated appreciations of intellectual property, neither company is dead wrong on its position. Some confounding facts will come to light.”
Of course, the lawsuit may not just be about getting tons of cash. Updegrove observed, “There’s more than one way to recover on patent litigation. Could there be Google patents that Oracle would like to license at little or no cost, in exchange for a settlement? And Larry Ellison has never shied from poking someone in the eye if he thought that they were stepping on his turf.”
No matter what Oracle’s motive, is this really a smart move for the company? Stephen O’Grady, one of the founders of Red Monk, the developer-oriented analysis firm, said that “This is simply a case of Oracle being less concerned than Sun about being perceived as a bad actor. It is interesting, however, that Oracle appears to be willing to trade short-term transactional gains for long-term ecosystem health.”
Will Oracle win? It’s way too early to make any predictions, but this could be a long, nasty legal fight between two titans of the technology industry. That said, Oracle will face problems making its case.
As Kelly Talcott, a NY-based IP attorney, observed, “As for the patents, most of them are fairly long in the tooth as far as software patents go, which means they may not have been as diligently prosecuted by the Patent and Trademark Office (PTO) as are current software patents. In any event, based on my very quick review of several of them, they appear to focus on fairly technical and discrete pieces of the system. Moving the case from the complaint stage to the claim construction stage alone (forget about trial) is thus going to be a lengthy, expensive process.”
In addition, Talcott pointed out that “Clearly Google is the biggest fish that Oracle could go after, with tremendous resources if it decides to fight back. I’d be a bit surprised if Oracle starts going after anybody else at this point. Usually if you go after multiple targets simultaneously you’ll pursue weaker defendants, using your greater size to your advantage. Oracle lacks that advantage here.”
Still, as Carey warned, “You can expect Oracle to move aggressively if it sees a commercially successful product that includes Java and which is not properly licensed.”
In short, if you’re in software development and you use Java in your work, you may not need to be too worried… yet. But, you certainly should be following this case like a hawk. It really does have the potential to transform the Java and open-source development landscape.