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Oracle v Google: Why?

When Android debuted in 2007, I couldn’t figure out how Google had managed to apply an Apache license to the project. Java, like Linux, was governed by the GPL and thus incompatible with the more permissive license Android was sporting. Stefano Mazzocchi subsequently answered the Java related questions: Google wasn’t using Sun’s VM, they’d built their own. As had Danger before them, from whence many of the Android team arrived. Called Dalvik, Google’s cleanroom reimplementation was, if not “Sun’s worst nightmare” as Mazzocchi put it, a clear fork-in-the-eye to the Java license holders. However brave a face they put on it at the time.

Whether Google decided to reimplement the JVM for financial reasons, technical reasons, or both, is unclear. Whatever the motivation, Dalvik allowed Google to bypass Sun en route to market. What Dalvik never did – never could have done – was protect Google from patent litigation.

In estimating the risks of such action, Google could have reasonably assumed that the probability of Sun suing them was near zero. Sun may have been unhappy, and may even have suspected that Google’s cleanroom reimplementation was anything but. The Vegas line would still have been decidedly tilted against Sun turning to legal action.

Maybe Sun’s reluctance to sue was financial. I’m personally skeptical of this claim – companies with failing financial fortunes in my experience are generally more inclined to seek legal remedies to their problems, not less – but Shankland’s sources are always good. Even if this were the case, however, Google couldn’t have assumed that would suffice as a shield. Instead, the search giant would have expected Sun to behave consistently with its past behavior and future interests. Besides the fact that Sun had effectively zero history using its patents offensively, as James Gosling acknowledges, there was the fact that attacking Google over patents would irreparably damage Sun’s then nascent efforts to repair its fractured relationships with developers. It would be tough to reconcile a suit with the public positions of its chief executives. Worse, it would have injected fear, uncertainty and doubt into the dominant enterprise software ecosystem at a time when Sun could ill afford it. While its pursuit of patents remained high even then – for what former chief counsel for Sun Mike Dillon characterized as defensive reasons – offensive use of its intellectual property was more or less unheard of, the Microsoft settlement notwithstanding.

Sun, in other words, was not going to sue Google. And Google knew it.

It’s safe to assume, however, that Google also knew that Sun was unlikely to be the permanent owner of its intellectual property given the firm’s financial trajectory. Which is why Google’s legal team probably started preparing for a suit the day the Oracle transaction closed. If not earlier. And it also explains why Google was prepared enough to fire back with something more than a “no comment,” dismissing the claims as baseless and cleverly reframing this as not just an attack on Google, but on open source Java as well. Oracle shares neither Sun’s old qualms nor its conscience, and Google knew that too. Finances are not an obstacle, and Oracle does not care about perceptions of the company, developer or otherwise. After yesterday, it would appear that they are similarly unconcerned about what the ecosystem thinks of their stewardship of Java.

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.”

Nor is the outcome of this suit certain. Granted, Oracle’s lawyers will be belligerent and numerous. Given the nature of both the patent system generally and the patents at issue specifically, it’s not only possible but likely that Android infringes in some fashion. This is perhaps not surprising. News that the patent system as it pertains to software is broken is not, in fact, news (coverage). It is also true that the fact that Oracle is proceeding in the face of obvious, substantial costs both financial and not suggests a level of confidence in the merits of their suit. What will be interesting to observe, however, is how the suit is or is not complicated by the post-Bilski patent landscape as well as the public promises of senior Sun executives not to assert their intellectual property rights in this fashion. Groklaw discusses the Bilski implications in their coverage. The Sun executive blog entries, meanwhile, cannot supercede inherent intellectual property rights, of course. But might they be used to build a case challenging the intent of the rights holders? Perhaps. Can patents once regarded to be “open” be “closed?” Barring a settlement, we’re likely to find out. If they cannot be closed, and Oracle’s suit fails, the costs, in both dollars and damage, will be exorbitant. Even before we get to the inevitable countersuit which will result from the asinine mutually assured destruction game the current system forces upon us.

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.

Recommended reading:

Disclosure: Oracle has in the past been a RedMonk customer; Google has not. Of the other mentioned firms, Apple is not a RedMonk customer while Microsoft is.

Categories: patents.

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  • Saddumal Bhasodia

    Google is building an SQL engine for Google App Engine Business Edition – http://code.google.com/appengine/business/#features

    Maybe that explains it.

  • http://newstechnica.com David Gerard

    Neither you nor anyone can think of an even halfway sane reason for this prima facie gibbering insane lawsuit, *therefore* their reason must be subtler and cleverer than any of us can think of?

    I suggest an alternative: Oracle don’t get openness at all and don’t trust it, and bought Java thinking they could close it without alienating too much of their developer base, in the hope of pricing Java the way they do Oracle, i.e. squeeze the customers until the pips rattle. Further, they believe software patents will *make* recalcitrant developers behave and pay them money.

    That is, it’s an attempt to exercise overwhelming force in the sincere belief the victims have nowhere else to go.

    Whether that makes sense to those of us who *do* understand openness does not mean that Oracle have any understanding of the concept.

  • scott

    Larry Ellison is on the board of Apple. :-)

  • http://www.arnoldit.com/wordpress Stephen E Arnold

    Here in the goose pond, we see this Oracle action as an expression of frustration with Google and open source. Google is not going away, and I don’t think Oracle’s open source wound will heal quickly. What’s the quick fix? Looks like what some US companies do best–let the legal eagles out of their cages.

    Stephen E Arnold, Beyond Search

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  • http://pharaohtechblog.blogspot.com Conan Kudo (ニール・ゴンパ)

    Nothing says that Google can’t just switch programming engines. Dalvik could be redesigned to use C# instead, if they so desired.

    Or Dalvik could be replaced with Mono, who knows? Android is open source, and Google has a wealth of options available to it.

  • Barny

    Not buying the anti Oracle anti lawsuit FUD here.

    Google violated the GPL. They are not the ‘good guy’ here, they are undermining open source. Oracle suing Google should reassure debs that they are willing to keep th platform strong. There should be no ‘chilling effect’ on Java because nobody should be doing what Googl did anyway.

    Geeks are going to have to let go of Google; they are not your friend.

  • John

    Thanks for the article.

    You did not mention that Google and Oracle are competitors in the handheld space, Dalvik vs HotSpot. Dalvik can/will eat into the same market that Oracle plans to compete in. Even though Dalvik runs java bytecode, it is not java. Oracle is not eating its young, it is protecting its brood.

    You should also mention that Oracle believes that Dalvik is not a clean room implementation. The patents mentioned in the suit were filed by formerly Sun employees who are now working for Google.

  • http://redmonk.com/sogrady sogrady

    @Shalin Shekhar Mangar: the answer to your question, of course, is that Oracle does not care about the opinions of the various affected open source communities.

    the question is whether that’s a wise long term strategy. in the short term, it’s likely to have little impact as Oracle’s product portfolio has faced little serious threat from open source alternatives, MySQL notwithstanding. this means that purchasing and adoption of its products are little influenced by developers.

    my guess, however, is that this situation is not indefinitely sustainable, and that Oracle – like Microsoft before it – will at some point in future have cause to regret some of its behaviors.

  • http://redmonk.com/sogrady sogrady

    @Barny: in at least one particular, you’re factually incorrect. Google did not violate the GPL, and no one – Oracle included – has alleged that this is the case.

    as for what this action demonstrates on Oracle’s behalf, we’ll just have to agree to disagree.

  • http://redmonk.com/sogrady sogrady

    @Conan Kudo: it is, as Miguel proposed, theoretically possible to transition away from Dalvik to an alternative platform.

    in practical terms, however, this is a non-starter. this would render the entirety of Google’s Market obsolete overnight, effectively erasing developer efforts until such time as the applications could be ported. if they ever were.

    Google has gone too far down this road to be deterred easily.

  • http://redmonk.com/sogrady sogrady

    @David Gerard: i don’t know that anyone is suggesting that Oracle’s being “cleverer” here. indeed i, and many that i’ve spoken with, would argue that this is potentially a serious misstep for Oracle, and that they are likely to be underestimating the longer term costs for some of the reasons you mention.

    what i am saying, however, is that whatever else Oracle may be, it is a business and a well run one at that, purely by commercial performance. couple that fact with the history of patent litigation, which demonstrates adequately that litigations is generally more of a negotiating tactic than revenue strategy, and it’s logical to suggest that there is more at work here than is obvious at the present time.

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  • Hamranhansenhansen

    Google made copies of all the software they saw in the mobile market and gave that away for free to companies who make copies of all the hardware they saw in the mobile market. Then they *sold* those devices to consumers and *sold* ads on those devices. They did not give this stuff away to the world, this is not non-commercial work.

    Not having to create anything you sell is a great cost and work -savings until the people who created what you copied show up with lawyers.

    If you look at who made a particular Android phone you find lots of business people, lots of engineers, and no designers. Now, they have to add a ton of lawyers to make up for the lack of designers. It would have been better to add designers at the beginning and make something unique rather than have to add lawyers at the end and defend your plagiarism.

    Me, I have absolutely no sympathy for monopolists like Google and Microsoft who act like spoiled rich kids, taking other people’s hard work and pretending it is their own, and no sympathy for people who pretend that is good for the “community,” by which they always mean CS/IT people only. Android phones don’t cost less than iPhones, and Windows has TCO that will bankrupt you. And both have terrible usability. These products are not gifts to the community, they’re a way for technology companies and advertisers to prey on consumers, who are 90% of the actual community.

    Google is a huge, highly-profitable company, not a charity. It’s ironic that people who defend them as not being evil also don’t want them to have to obey the law and the basic rules we learn in Kindergarten about not copying other people’s work and saying it’s our own.

  • Steven Marcus

    “Oracle’s ambitions here are big” – I agree.

    Java looks increasingly irrelevant in the mobile space.
    Android looks about to dominate.

    I suspect that Oracle is miffed that Sun screwed up licencing JavaME to Google for use in Android.

    So, the real intention of the suit is to get Google to become a Java licensee.

  • Whizz

    Perhaps there is a simpler reason for taking the legal action: take a look at who is good friends with whom. As I recall Larry is great friends with Steve Jobs. Google has really started to rock Apple’s phone business so having Larry go on the rampage is a great tactic. And if Larry gets something out of it, so much the better from his viewpoint – perhaps he’s looking to recover the costs of his disastrous “Network Computer” effort of the mid 90’s. Certainly Android is now delivering Larry’s dream – but without Larry …

  • investigator

    I think Oracle has done right thing . Google must be punished severly for its evil practices , arrogance , and taking everything for granted . all the best Oracle . Hit them hard.

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  • Josh Maple

    I don’t like Google or Oracle, so I do like to see them both wasting money and time in a court room.

    They both are losers regardless the outcome.

  • Dorie

    This took a lot of words to say “we’re confused. There must be some reason Oracle did this, but we can’t figure out why”.

    End of day, Oracle owns the rights to Java and gets to define how the VM runs. They think Android abuses that and they want money from their investment. Ellison doesn’t let companies get away with that shit; Sun did, and that’s why they aren’t in business any more. Since Android is now the ascendent platform in phones, it’s worth Oracle worrying about and suing for.

    There. That’s all you had to say. The rest of the bullshit “open source champions”, developers- won’t-like-them stuff is superfluous.

  • Frank Daley

    It would also be interesting to know what concerns Oracle has regarding Google’s Go programming language, and what Oracle might know of Google’s plans to promote it more widely!

  • http://redmonk.com/sogrady sogrady

    @Dorie: It took a fair number of words because it’s more complicated than “we’re confused. There must be some reason Oracle did this, but we can’t figure out why.”

    End of day, Oracle owns the rights to Java and gets to define how the VM runs.

    Oracle owns the rights to the Java trademark, yes. And they own the right to define how their VM runs. But we’re not talking about their VM. We’re talking about Google’s, which just happens to share the syntax with Java’s.

    They think Android abuses that and they want money from their investment.”

    Perhaps. Or maybe there’s a lot more to it, as there generally is in patent suits.

    Ellison doesn’t let companies get away with that shit; Sun did, and that’s why they aren’t in business any more.

    Sun’s attitude with patents has nothing to do with the fact that they are no longer an independent concern.

    Since Android is now the ascendent platform in phones, it’s worth Oracle worrying about and suing for.

    It is true that Android’s success makes it that much more compelling from a financial perspective. It is not apparent, however, how an Apache licensed mobile platform is worth “worrying about” for a firm that derives close to 100% of its revenue from server side products.

    There. That’s all you had to say. The rest of the bullshit “open source champions”, developers- won’t-like-them stuff is superfluous.

    The first mention of “open source champion,” FYI, is in your comment.

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  • DE

    “it seems inconceivable to me that Dalvik would have been permitted to violate Sun’s patents.”

    It’s Better To Beg For Forgiveness Than To Ask For Permission is a strong Google trend. They may well not have worried unduly about the change in ownership of the patent.

  • http://www.kevinraffay.com Kevin Raffay

    Instead of being a patent troll, Oracle should try to improve its horrible database product. I estimate that working with Oracle inflicts a 25% toll on my productivity, compared to SQL-Server.

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  • Ivan

    I was desperately trying to avoid C# as I disliked the fact that it was a ripoff of a then stable Java language. Now I fear that I will be forced to study this pointless language in order to be competitive in a market, where it is clear that new implementations would be preferentially coded in C# in order to avoid tangling with greedy Oracle. Its a shame really as the Netbeans 6.9 environment is superior to the overengineered Visual Studio. Some of the best opensoure programs such as QuickfixJ, dbo and openphysics are written in Java and provide much needed frameworks for exploration.

  • Ivan

    Hang on I spoke too soon. It appears that while the JVM for the desktop computing environent is free, it is not so for the mobile devices. The JVMs for those applications must be licensed from Sun / Oracle as other companies have had to do. Essentially Google was stealing Sun’s lunch money. I can’t say I blame Oracle for protecting its investment. Google should just pay up and stop pretending that its a case of the Oracle behemoth crushing valiant open source coders.

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