Oracle isn't completely wrong to sue Google over Android

Google may have had it coming, but the fallout for Java is scary.

So Oracle wants a piece of Google's action and late Thursday filed a patent-infringement lawsuit against Google over Android's use of Java. One thing is clear. There are no victims here. The crux of the issue is that when Google created Android, it wanted a way to use pieces of Java Micro Edition without paying royalties to Sun.

Whether Google's Android engineers did so legally or not is for the lawyers. I'm more concerned over if this suit could fuel Oracle's desire to shake down other Java users now that it owns a massive collection of Java-related patents.

How likely is that? We're talking about Oracle here. This is a company run by a man, Larry Ellison, who nurtures his and his company's bad-guy image. Indeed, just last week Ellison was so upset that HP fired its own bad-boy CEO, Mark Hurd, that Ellison wrote a letter to the New York Times defending Hurd. (Hurd was forced to resign after an investigation found that he misrepresented his expense reports to hide attempted, but allegedly never consummated, dalliances with a woman who was decidedly not Hurd's wife.)

But before you go off on how Oracle is behaving in a back-stabbing anti-open-source way, know this: Google is no Mr. Nice Guy in this. Its interest in Android is to gain control in the next up-and-coming ad and search delivery platform, mobile. And to do that, you've got to get massive numbers of users. And to do that you've got to get massive numbers of devices and applications in the market fast, priced lower than the competition. Free is the can't-argue-with-it cost. It can't be free if you've got to pay royalties.

So Google found a way to take what it wanted. In November 2007, when Android was first released, former MIT research scientist and Java expert, Stefano Mazzocchi, wrote a post called Dalvik: how Google routed around Sun’s IP-based licensing restrictions on Java ME. Although parts of Java are open-source under GPL2, Java ME, Sun's embedded operating system, was not. Most handset makers pay fees to Sun, and now Oracle, for it. Back in 2008 analysts estimated Java ME was generating $1 billion annually for Sun.

The technical details on how Google got around paying Sun are fascinating. I'll summarize: Google wrote its own virtual machine/emulator to run Java code (Dalvik), open sourced it, didn't claim it to be compatible with Java. This was insult-to-injury for Sun. Years earlier, Sun took Microsoft to court and won when Microsoft wrote its own Java virtual machine which wasn't cross-platform compatible. Java written for it to run on Windows didn't work the same as Java written for Unix or other platforms (forcing developers to double develop or choose which platform they wanted to write for -- and Windows was the monopoly).

In any case, Sun didn't have the funds to litigate with Google at the time. Oracle's been trying to collect from Google ever since, insiders say. Hence the lawsuit, (here's the actual filing, in PDF) which Google, not surprisingly, says it will fight.

While Oracle's rationale may have some merit, its actions are still disgusting to an open source community it has been trying to woo. As Alan Shimel writes, Oracle's message to the open source community is clearly "drop dead."

Indeed, the announcement of the suit came just hours after Wim Coekarts, senior vice president of Linux Engineering at Oracle, delivered an open source-friendly keynote address at the LinuxCon conference. And it came on the same day that Oracle announced it would kill OpenSolaris. The death of OpenSolaris on its own may have only been a ripple -- how many use it instead of Linux? But taken together Oracle's message is: Linux and open source are good when it benefits Oracle; bad if it benefits anyone that Oracle thinks should send it a check.

The two most revealing accounts of how we got into yet another situation where patent infringement suits might decide your market choice are from James Gosling, the so-called father of Java who left Oracle shortly after the Sun acquisition. And the second is from open source guru (GNOME founder and current Novell employee) Miguel De Icaza.

Gosling has always disparaged Android. In 2009, I wrote about how he was claiming that Android's use of Java was "odd." By giving it to the handset makers for free and letting them run with it, you've guaranteed yourself a Unix-repeat -- a fragmented market where software that works on one device doesn't work on another, he argued. Yesterday he wrote, "Android has pretty much played out the way that we feared: there is enough fragmentation among Android handsets to significantly restrict the freedom of software developers." I'm not sure I agree.

De Icaza's insight comes from his years of bringing open source to fruition and not necessarily from an insider's point of view. He writes:

"Needless to say, Sun was not happy with Dalvik. Not only because Sun had lost a large licensing deal, but also because it had the potential of becoming the de-facto Java virtual machine that everyone on the embedded space would pick instead of Sun's own Java Micro Edition."

Oracle's suit against Google isn't the only attack on Android. Apple is currently suing handset maker HTC and Microsoft managed to grab royalties from HTC for Android, too.

But the scary part of this has nothing to do with Android's ability to survive its enemies. It's about Oracle's ability to take the open source out of Java. If the company succeeds, Oracle could very well be emboldened to become a patent troll, sifting through its massive Java portfolio to find other ways to shake down others. Although I don't see a direct risk to enterprises running Java (which is just about all of them), Gosling admits that Java engineers had an internal contest to see who could patent the most ridiculous shouldn't-be-patentable technology. Oracle owns those patents now. Sigh.

Equally scary is Google's determination to take what it wants, when it wants it. If this goes to court, the outcome will take years. By that time, Android may be the king of the mobile operating system world, or it may be just another player in a world that includes MeeGo and a don't-hold-your-breath-but-it-still-can-happen Windows Mobile.

Groklaw writes,

"But the truly interesting question isn't why Oracle sued Google. It's why Google let themselves be sued ... Java is a control freaky thing, and it always was, because it was made in Sun's image. But from Google's perspective, if you can't independently develop the way you want to, it's worth going through litigation to establish your right to do so. And knowing Google, by the time the litigation is finally resolved, they'll have invented some new way to do everything that's needed and they will leave Java behind, choking on their dust."

Many folks were hoping that Oracle would be the poster child for how a proprietary software company can integrate an open source business model with its legacy proprietary fees. Clearly not.

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