can think of all kinds of reasons why Oracle is suing Google over its use of its Java IP (intellectual property) in Android. Making money from its Java patents strikes me and most experts as the most likely reason. But, I’ve also heard suggested, time after time, that the real reason is that Larry Ellison, Oracle’s CEO is buddies with Steve Jobs, aka Mr. Apple and he wanted to help Apple fight Android.
Could that be the case? Here’s the logic that supporters of this theory use. First, Google and Apple are competiting head-to-head in the smartphone space. The iPhone certainly has more users, but the Android phone family is quickly catching up.
Even before this product fight really started going though; Apple was feeling the heat from competiting with Google. That’s one reason why Steve Jobs kicked Eric Schmidt, Google’s CEO, off of Apple’s board.
Then, of course, this year, Google started talking smack about Apple. At the Google I/O keynote, Vic Gundotra of Google said that the world needed a second major mobile phone operating system because, “If we did not act, we faced a draconian future where one man, one phone, one carrier was the future. That’s a future we don’t want.” Oh, did I mention he did this in front of a 1984 poster?
The Apple iPad is going to face serious competition from Android Linux-powered tablets, but the first mass-market, low-priced tablet to arrive, the Augen GenTouch78 isn’t it.
The tablet does have some good things going for it. While it’s made from black plastic, it has a solid feel. Better still, it comes with a form-fitting, faux-leather case. I don’t know about you, but whether I pay $170 for a GenTouch78 or $500 for an Apple iPad, I appreciate getting a real cover to protect it without shelling out additional cash.
In addition, the GenTouch78 comes with a pair of micro-USB to USB cables to make it easy to hook the device up to PCs or USB devices. It also comes with a microSD card port that can handle up to 16GB cards. I also found the tablet to be a nice size. For me, the overall shape with case was as easy to handle as a trade paperback book.
OK, that’s the good news. Before even turning it on, I was dismayed to see that the headphone jack port looked a little small. I was right. Instead of a music-grade 3.5mm port, it comes with the perpetually troublesome 2.5mm port.
Many open-source developers and business people are upset that Oracle is suing Google over Java patents in Android. These people have reason to worry. This case could change not just how they use Java but how open-source development is done at all.
So why would Oracle, a Linux-supporter in its own right, introduce the evil of software patents into open-source programming? My answer: Because Larry Ellison, Oracle’s CEO, thinks the company can profit from it.
Oracle is suing Google over the use of Java in Android and that may change everything about Java and open-source development.
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.
I spoke with Mark Shuttleworth, founder of Canonical, this morning, and he tells me that Canonical will be bringing true multi-touch to Ubuntu Linux in Ubuntu 10.10 (code name Maverick Meerkat).
“Multi-touch is just as useful on a desktop as it is on a phone or tablet, so I’m delighted that the first cut of Canonical’s UTouch framework has landed in Maverick and will be there for its release on 10.10.10. This is being driven in part because many partners want touch across their equipment range,” Shuttleworth said.
This doesn’t mean that Ubuntu is heading towards making a Linux for tablets ala Android or MeeGo. “We don’t have a tablet edition, but you could certainly use Ubuntu for tablet with this. Our focus is on the desktop and netbook,” he added.
In particular, Ubuntu’s programmers are developing for 4-finger touch devices. “While you can use one or a two-finger touch device, after our developer sprint last week, the absolute consensus was that 4-finger is the way to go. With 4-finger capable pads, such as Apple’s Magic Trackpad, you can use the full vocabulary of touch gestures,” Shuttleworth said.
In a leaked Oracle internal memo to Solaris developers, Oracle management wrote, "We will not release any other binary distributions, such as nightly or bi-weekly builds of Solaris binaries, or an OpenSolaris 2010.05 or later distribution." As the OpenSolaris software engineer, Steven Stallion, wrote, "This concludes over four years of effort that I (and many other external contributors) have worked on the OpenSolaris project. This is a terrible send-off for countless hours of work — for quality software which will now ship as an Oracle product that we (the original authors) can no longer obtain on an unrestricted basis."
Stallion concluded, "I can only maintain that the software we worked on was for the betterment of all, not for any one company’s bottom line. This is truly a perversion of the open source spirit."
To which I can only reply, welcome to the Larry Ellison school of open-source thought. As I’d been trying to tell OpenSolaris developers all along, the god-king CEO of Oracle doesn’t give a damn about any open source that doesn’t directly benefit Oracle. The moment Oracle acquired Sun, OpenSolaris’ fate was sealed.
Red Hat, whose Red Hat Enterprise Linux (RHEL) forms the basis for Oracle’s’ Unbreakable Linux, could tell you all about that. Oracle is no friend to other Linux companies or the Linux community. Unbreakable Linux’s real point is to break Red Hat. Why would anyone who actually looked at Oracle’s business history think it would take a different approach with Sun’s open-source projects that didn’t fit into Oracle’s plans?
That’s why I think almost all of Sun’s open-source programs are in deep trouble. Oracle has already cut the lifeline for projects that Sun had been friendly toward, specifically the open-source PostgreSQL DBMS. By the end of the year, I suspect we can start writing open-source MySQL DBMS’s obituary. Other old Sun open-source projects will start getting their official pink slips around October.
Why October? Because that’s when Oracle can claim the projects aren’t profitable, and it’ll be long enough after Oracle acquired Sun to avoid any troublesome merger and acquisition legal questions. I believe Oracle always intended to let most, if not all, of Sun’s open-source portfolio die. I’m now surer of this than ever.
OpenSolaris itself may live on. The Illumos open-source project, founded by former Sun developers, is seeking to keep OpenSolaris going.
Evan Powell, CEO of Nexenta, the company behind Illumos, wrote, "We’ve been planning for this contingency for a long time. We have the team to continue to support customers and partners and to continue our development. We look forward to picking up the appropriate pieces of Solaris when they are made available with Solaris 11 as well."
This won’t be easy. But enough of Sun’s top Solaris engineers have left Oracle for greener pastures that creating a truly open OpenSolaris is possible. Whether they can do this without having Oracle attack them, well, as Google and Red Hat can tell you, that’s another question.
