back to article Oracle v Google round-up: The show so far

After years of waiting for the contenders to open fire, the Oracle-Google shooting match is now on, and the bullets are pretty expensive. The opening salvos have landed, so let's take stock. It’s worth keeping at the back of your mind how strange it is to be here at all. Judge Alsup has spent three years trying to persuade …


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  1. Anonymous Coward
    Anonymous Coward

    Again : Mueller

    Why are you quoting a known biased commentator and taking his statements as gospel? It doesn't really do your credibility any good at all.

    1. Anonymous Coward
      Anonymous Coward

      Re: Again : Mueller

      Florian Mueller has become a bit of a player. You know what his POV is and you know who is paying him - because he tells you what is point of view is and he tells you who is paying him. This does not make him wrong or corrupt.

      1. Anonymous Coward
        Anonymous Coward

        Re: Again : Mueller

        No it doesn't make him corrupt but it puts a huge slant on anything he says - something that Andrew fails to point out in his article

        "As Florian Mueller points out in his analysis, Schwartz’s comments cut little ice with the Judge" has a very different meaning if he's being paid by Oracle - "As an Oracle paid consultant points out in his analysis, Schwartz’s comments cut little ice with the Judge"

        It's a big difference.

    2. Anonymous Coward

      It's Mueller time

      Biased I could deal with. The trouble with Mueller is that he doesn't really know what he's talking about. I've started to use quotes from him as a shorthand indicator that the article in question is not likely to be worth my time.

  2. Anonymous Coward
    Anonymous Coward

    A bit biased

    You do know that Florian Mueller works for Oracle now so is hardly an impartial source.

    1. Anonymous Coward
      Anonymous Coward

      Re: A bit biased

      Doesn't 'work for' is a consultant of.

      There's a hell of a difference in law and actual fact.

      Here's what's gonna happen...

      1. Google found guilty with a one off payment and ongoing licensing fees to every handset maker. So much so that it becomes unfeasible financially to produce an Android phone because of the additional Microsoft licensing fees and zero profit for all manufacturers but Samsung

      2. Google abandons Android and releases 'Chrome for Phone' - they're already working on it.

      3. Samsung forks Android - it will happen, but not for these reasons

      4. Profit???

      1. Anonymous Coward
        Anonymous Coward

        Re: A bit biased

        Sorry should have said "takes Oracles money in return for services rendered". That of course doesnt make him an employee but he does "work" for Oracle just like he does work for Microsoft. Now if I am a "consultant", that has just signed up another large multi-national customer, my first public act is not going to be report negativily on their current biggest trial. So I stand by my statement he is not un-biased.

        Quite what he would do if MS and Oracle ended up in a big patent trial against one another would be really interesting. Keep his fingers off a keyboard and not return calls from lazy jounalists would be my guess.

        His track record on actually being correct with his opinions is not exactly stellar,except possibly in his own eyes.

  3. A Non e-mouse Silver badge

    Well, if that "copied" Java code is the basis of Oracle's lawsuit, I can't see it having much luck. Apart from the second example, the other three examples are exactly what any Java programmer would do.

    1. Nathan 6

      Only need to show one

      1. Paul Shirley

        "Only need to show one"

        Go lookup what Googles 'de minimis' affirmative defence means... *amount* of copying *does* matter and 1 case of 9 lines in 15million seems a pretty good candidate for de minimis.

        Particularly when the copied function is also a good example of unprotectable code - on grounds that you can't implement it in any functionally different way and that's its function and use is required to fulfil the Sort method contract.

        I expect de minimis will cover the test suite files HP smuggled into the tree as well, on the basis they had no actual use or value to Android.

        US software copyright law is not as simple as most of you seem to believe. It's messy, looks unfair (multiple ways to get away with copying for instance) largely because it evolved to prevent a whole family of abuses by copyright holders. There's a reason Oracle are trying to create new law here, the existing precedents don't support their claims.

        Sun wove a contractual web designed to lockin control of Java but failed to cover all loopholes.

      2. Voland's right hand Silver badge

        And there is no such one really

        While the entire affair is not particularly pretty all code shown by Oracle in this slide deck puts Google firmly in the clear.

        There is a well known precedent in IPR law known as the Lego precedent. Lego sued some of its competitors for allegedly copying its "bricks" and tried that based on both Copyright grounds and Design Patent grounds. It failed.

        The reason is that in order to get a functional "brick" you need to have the recesses on the bottom, the pointy bits on top and in order to connect bricks in different combinations you have to have those bits rounded. The reason for the Lego brick shape is not design, not copyright - it is because it is functional and any other brick based system will have to have a similar shape.

        Coming back to Google vs Oracle, it has no case for copying an API and there is very little case to apply copyright to an API. Anything trying to implement the API will be functionally similar to the existing implementation - same as Megablock bricks are similar to Lego bricks. From there on, if an API is public and if there is no _OTHER_ means of prohibiting the implementation of said API, an implementor can copy the definitions of the functions and there is very little that can be done against him. It is a form of the "Lego precedent" - there is no other way to do that.

        Oracle is showing only definitions and function declarations in their slide decks. These fail "The Lego Test". So will any piece of code for which there is "only one sane way of doing it". They have to show a piece of code which requires a non-trivial implementation which has been copied.

        Did Google copy chunks of code is not relevant here, it is "did it copy something that is subject to IPR protection".

        It will be good if this sees its day in court and it creates a precedent, because regardless of who wins the scope of frivolous application of "Copyright" tags to include files, library definitions, schemas, etc - things essential for interop is likely to see some drastic reduction and this is good for everyone.

        By the way, SnOracle is not the biggest offender here - most opensource projects are way worse including. They frivolously slap GPL2 on include files, API definitions and other items from the 2+2=4 variety.

  4. Destroy All Monsters Silver badge

    Woah that slide sucks

    This is like copying commentary. Yes, in this world where you can trademark A Goat On a Roof, this counts as "Intellectual Property". Remember we are going up against copy-friendly people like China with that kind of stupid.

    The only really nasty thing one can say about this that in both cases the error report in the exception will certainly confuse the hapless developer. Too half-assed to actually say "Out of range [X,Y] with index Z", instead just saying "Z"? Yes, good work, one side. Or both sides.

  5. Anonymous Coward

    Strange. Read the dissection at Groklaw and you get a totally different perspective.

    The general view there is that this is largely about whether or not Google need a licence to use the JAVA library API, so this largely rests on whether or not an API can be covered by "copyright" as a creative work. Just because an ex-SUN engineer thinks that Google DO need to acquire a licence is entirely irrelevant: he is not a lawyer and probably doesn't know what he is talking about. The context of that statement is likely to be risk aversion and playing "fair" to his prior employer.

    Most of the examples of supposed "copying" are debatable, although not necessarily without merit.

    1. Anonymous Coward
      Anonymous Coward

      It's time to play 'Choose your bias'

      Muller wrong?

      Groklaw right?

      Or just agree with whichever bias matches you own!

      1. Carl

        Re: It's time to play 'Choose your bias'

        Im not interested in bias.

        However, I am interested in resources that have a good track record for making the right call.

        Groklaw consistently calls it correctly, predicting trouncings for SCO, Psystar and others. Mueller consistently calls it incorrectly.

        At Groklaw you can ignore the editorial and go to the actual documents. I don't recall any such luxury afforded by Meuller and his ilk.

        Groklaw's efforts are voluntary. Meuller makes $ from relationships with the companies he shills for.

    2. Anonymous Coward
      Anonymous Coward


      is not the bastion of unbiased reporting

      I think you'll find the 'copying' is being debated in the courts

    3. Anonymous Coward
      Anonymous Coward

      Disappointingly, Groklaw has its own bias as even *facts* can be interpreted any way you want - a good example of that is their stance towards Google, Google can simply do no harm in their eyes (yes, I know that will give down votes, but I happen to be in a position where I can accurately judge this).

      That aside, that ex-SUN engineer has been pretty close to the creation of the platform and can thus be taken as having a reasonably good idea of what works or not. In other words, if he says "other options suck" than you come back to the issue of "how did Google end up using Java commercially without a license".

      OK, I'm possibly biased too: Google has a rather long history of trying to get away with anything it damn well likes so from a simple behavioural angle I cannot see them changing their MO, which makes the accusation more likely to be true.

      1. Michael Wojcik Silver badge

        > I happen to be in a position where I can accurately judge this

        Your vague, unsubstantiated claim of authority from a position of anonymity certainly strengthens your argument. Well, I'm convinced!

        Of course Groklaw is "biased". Anyone with any critical thinking skills knows every source is biased - that's what it means to have critical thinking skills. "Unbiased" is at best some sort of asymptotic ideal.

  6. Anonymous Coward
    Anonymous Coward

    A couple of "really not corrects"

    > In a nutshell, Google admits copying Sun Java code into Android.

    Actually no. Google admits reimplementing the Java SE APIs in Android. The problem is that due to the nature of APIs, the Java originals and Google's (well Apache Harmony's) reimplementation are very very similar. The irony is that if the APIs were *identical* there would be no risk of Java fragmentation.

    Also Andrew is still retailing the old FUD about the Lindholm email - which was written *after* Oracle began the process of suing Google and the latter were wondering whether they should just ditch Java.

    The sad thing about this is that it all started because Sun chose to fragment Java into a multiplicity of editions, and flat-out refused to license Java SE for any handheld device.

    The sad thing here is there are no real villains in the story...

    1. Nathan 6

      Re: A couple of "really not corrects"

      Hmmm, you clearly not a Java developer if you think it would be a good idea to run the full J2SE stack on a smartphone (going back 10 years or so). It might be cool, but no, you have to work with subsets of the main J2SE platform. Also I am not sure how that would be fragmentation, It's just good platform design.

    2. elsonroa

      Re: A couple of "really not corrects"

      > The sad thing about this is that it all started because Sun chose to fragment Java into a multiplicity of editions, and flat-out refused to license Java SE for any handheld device.

      I don't think that producing the different variants for different applications was too much of an issue. At the time, Java ME was fine for low-end devices and a 'full' SE implementation was never going to make much sense anywhere except the desktop. To me, the sad thing was the way in which Sun carried on insisting that Java ME was still good enough for the new generation of mobile devices when it clearly wasn't up to scratch. Faced with that, you can understand why Google decided to fork off and build Android instead.

    3. Anonymous Coward
      Anonymous Coward

      Re: A couple of "really not corrects"

      And instead of really not correct, you can say complete bullshit.

      Google admits in total nine lines of code were copied. APIs are not [i]code[/i].

    4. Andrew Orlowski (Written by Reg staff)

      Re: A couple of "really not corrects"

      Extending copyright to APIs: well, you know what I think about that.

      I'm really surprised more people haven't picked up on it, because it has huge disruptive effects on the industry. And not in any good way.

      The Lindholm email is just what it is. Page asked a very knowledgeable Java veteran what to do. The guy said: we need a license to do what we're doing. Google chose to poker bluff its way into court instead.

      1. CABVolunteer

        Re: A couple of "really not corrects"

        Have you researched the circumstances of the Lindholm email? Why have you assumed that "Page asked a very knowledgeable Java veteran what to do"? My understanding is that Lindholm was NOT asked directly by either Page or Brin but by the Google committee tasked with dealing with Oracle's legal action; this committee included Google's top lawyers (Kent Walker and Ben Lee) and Andy Rubin, head of Android operations at Google. Presumably that's why the e-mail was addressed to only Lee and Rubin with a salutation to "Andy".

        Lindholm is technical - would you rely on his judgement on the necessity for (further) licencing in a billion dollar lawsuit when you're paying for a bunch of in-house lawyers?

        1. Justin Forder

          Re: A couple of "really not corrects"

          In court, Tim Lindholm said that he didn't mean that Google needed to get a license specifically from Sun.

          Wall Street Journal: "Google Employee Testifies His Java Email Was Misinterpreted":

      2. Anonymous Coward
        Anonymous Coward

        @Andrew Orlowski - Re: A couple of "really not corrects"

        Actually, no! Lindholm was tasked to see if he can find other technically superior means of achieving the same goal. Nobody asked him if Google should take a license on anything, that would be a job for the lawyers to decide if Google is doing something illegal or not.

    5. Anonymous Coward
      Anonymous Coward

      That stuck out to me too

      A clean room Implementation of Java != "Copying"

      ...not in any impartial analysis at least. It's a little disconcerting that the Reg, which is usually pretty good about that sort of thing, could gaff so poorly in the summary of the case.

      1. Ian Michael Gumby

        @AC Re: That stuck out to me too

        If the clean room version isn't clean, then it's a derivative work.

        If Oracle shows evidence that suggests that the clean room code isn't clean then google is on the hook for major damages plus they will have to indemnify the cell phone manufacturers.

        1. Vic

          Re: @AC That stuck out to me too

          > If Oracle shows evidence that suggests that the clean room code isn't clean

          Oracle isn't presenting any evidence that it isn't clean.

          What Oracle claims is that any attempt to make a work-alike of Java is necessarily a copyright infringement. This is clearly contrary to the way the software industry has always worked, and appears to be contrary to the way US law works.

          Judge Alsup has not ruled on this yet - but he has asked some *very* pointed questions about it. It would not surprise me one bit for him to so rule before the end of the trial.

          BSF pulled the same sort of stunts when they represented SCO. It didn't work. SCO would have been demolished in court had they not filed for bankruptcy. I don't think Oracle will try the same tack.


        2. Anonymous Coward

          What "Evidence"

          What I can see in the article is just Hilarious. There are not many ways a stupid range-checking function can be implemented in a sane way. I can see exactly three sane options:

          A) check upper and lower bounds at the same time and throw exception if wrong

          B) check upper first and then lower

          C) check lower, then upper

          Hopefully Google will communicate that little fact to the judge/jury. This is very much like SCO BULLCRAP !

      2. Fred Flintstone Gold badge

        Re: That stuck out to me too

        Is "clean room" really "clean room" when the development is done by engineers who have worked on the original product?

        Personally, I don't think so, but I'm not a lawyer..

    6. Anonymous Coward
      Anonymous Coward


      is that the same as inventing?

      No, it's the same as innovating... Don't claim to invent, just make something better than the sum of it's parts.

      Google are copying apple again!

    7. Vic

      Re: A couple of "really not corrects"

      > Actually no.

      Strictly speaking, "yes".

      > Google admits reimplementing the Java SE APIs in Android.

      They also admitted to carrying a few copied files - believed to be put in the repository by a third party, and removed once Google found out, prior to the trial beginning.

      Judge Alsup was apoplectic. Oracle did themselves no favours whatsoever by pushing that bit...


    8. Anonymous Coward
      Anonymous Coward

      Re: A couple of "really not corrects"

      Phones were a lot, lot smaller back then, back when ME was created -- much less memory, much less processing power, much smaller displays. No way was Java SE going to fit.

  7. Nathan 6
    Thumb Up

    Google, and by default its' Partners are in Trouble

    As I said when this case was filed couple years ago, Google should just have licensed Java and be done with it. In the end, Android would look exactly the same, aside for some additional J2ME stuff added in. Also, with time, the J2ME and Andriod APIs would have likely just been merged.

    Aside from the legal issues, a more interesting aspect of the case to me is the fact that Google seems to be one of the few mobile platforms developers who actually did their research to see what SDK would work in that space. If you look at RIM, HP (WebOS), and Nokia, all the other mobile Linux distros they all pursued some other brand new, and unproven (in the sense of mass developer uptake, not technical merits) "html5/css APIs", or worst some native C/C++ library like QT (nthoign wrong with QT, but number of mobile developers who would know QT is very low) etc ...

    Kudos to Google, and Apple for that matter, for realizing that success in the mobile space has less to do with developing a sexy, new set of APIs, but more about leveraging what's already being used in a similar capacity. Or a better way to put this "first and foremost, appeal to lazy developers who don't want to lean yet another language/APIs, just for some potential incremental benefit".

    1. Paul Shirley

      Re: Google, and by default its' Partners are in Trouble

      You forgot it was Sun that absolutely vetoed licensing anything better than J2ME for mobile devices. Not that it stopped Google attempting to negotiate but ultimately they couldn't unilaterally decide to licence the version of Java they needed. Sun sank that.

      What's more worrying is, if Oracle can force Google to licence they can force them to accept that web of legal traps and buying the licence will shut down Android instantly. The only upside of that is it's so outrageous a result Google will get 5 years of appeals or so to cleanse Android before it's enforced.

      Sadly I cant even agree Google should have bought Sun. If Oracle paid $7.4bil and would likely go much higher to protect their main business's reliance on Java, in a bidding war Sun would cost much more than any imaginable fine Google could expect. Though Oracle still shout $1bil the court is strongly suggesting $30-40mil as a starting point.

      It's interesting that Larry Ellison admitted Oracle considered building a phone based on JavaFX, an option only available to the platform owner and close to an admission you just can't build a smartphone on J2ME.

      Oracle aren't going to cover their costs when this is over.

      1. Mikel

        Re: Google, and by default its' Partners are in Trouble

        This is exactly it. Google wanted to license Java, in just the way that Sun wanted, but needed some freedom of action. And Sun wouldn't give that freedom of action at any price. So there was no deal, and Google had to find a legal way around that roadblock.

        No doubt on good advice of counsel they found a way around. Now they have to convince the jury though, and that can be tricky.

        1. Carl

          Re: Google, and by default its' Partners are in Trouble

          Actually, it looks like Google doesn't have to convince a jury (on the copyright issue).

          Judge Alsup has ruled that we will handle the matter.

          So now Oracle has to convince him. And that *will* be tricky.

  8. Dave 142

    why didn't Google just pay in the first place? It would cost less than all the money they wasted on Motorola.

    1. Fred Flintstone Gold badge

      I think it was because Sun simply didn't want to sell what Google needed. This is possibly where Google went wrong: they choose to do something that looked like going ahead without license.

      Personally, I wouldn't put it past Google that they did that and tried to get away with it (it seems to be their MO to ignore laws), but it has to be proven that that is what they did, and there appears to be enough confusion to warrant doubt. So, it's up to the judge to decide if they did or didn't.

      If they lose this it may blow a ginormous smoking hole in the whole Android platform and lead to all sorts of followup lawsuits from OEMs (read: its of lawyer money earned and possibly a seriously large dent in the Google share price), if they win Oracle will surely follow this up - I cannot see Oracle spending so much effort on this unless they think they have a chance, although it could also be the classic play garden for *WAY* too rich people.

      There are two people involved here who both have wide and high doors to their offices so as not to impede their ego entering with them..

      1. Richard Plinston

        > they choose to do something that looked like going ahead without license.

        If Google had obtained a license from Sun it would have been for Sun's _implemenation_ of Java and the APIs, but would only have been for ME.

        Google determined that they did not want the limited ME version and so used the Apache Harmony implementation for which a license was available - the Apache licence. Google did not need a license from Sun as long as they did not call it Java.

        Oracle is trying to sue over alleged 'copyright' over the APIs organisation and sequence. This is like one publisher suing another over the use of 'Chapter 1', 'Chapter 2', etc because the 'selection, organisation and sequence' is the same.

    2. peter 45


      'cos each sale/licence comes with a host of terms, conditions, restrictions and obligations........and is subject to interpretation, licences, contracts, legal threats and actual legal action. Look at SCO and their 'sale' of Unix.

      Why not try to develop your own if you can?

  9. Anonymous Coward
    Anonymous Coward

    To Mr. Orlowski - How comes you did not mention

    the Apache Harmony project ? If I'm not mistaking it is Java without the right to be named Java.

    Most of Java has been open sourced under GPL license and (correct me if I'm wrong here) you may copy it freely so it would be nice if you could enlighten us regarding the parts Google copied, except for the bit where Oracle claims the mere creative arrangement of APIs involved a lot of precious IP Google has stolen

    Also, instead of Florian Mueller, why didn't you put here some quotes from Google side, we know they also put some slides illustrating their position.

    Of course you have the right to cheer Oracle's performance in court but we also have the right to fair and unbiased reporting here at El Reg.

  10. pcsupport

    Go on Oracle, take them for every feckin dollar you can get. Bankrupt the bas**rds.

    1. Fred Flintstone Gold badge

      Do I detect a hint of bias here? :)

  11. Paul Shirley

    should be looking really bad for Google by now, but its not

    This is Oracles week. They control pretty much everything while they present their case and it really should be looking devastating to Google 5 days in. But it's not.

    Really doesn't help their case that they keep banging on about issues like Java fragmentation that aren't in the case and would only affect licensor-licensee relationships, something Google careful avoided. Remember, copyright claims, patent claims (later in the case) but NO contractual claims at all. Sun did indeed carefully spin a web, Oracle are clutching at straws because it didn't catch Google.

  12. Steve Knox
    Thumb Down

    "That’s the meat of the prosecution’s copyright case."

    That pretty much sums up this article. Had you even tried to include the defense's side, the article would be a very different thing indeed.

    "So... it doesn’t look great for Google."

    Not with the one-sided presentation you've given, no. But it didn't look good for OJ Simpson, either -- until the defense had their say.

    1. Anonymous Coward
      Anonymous Coward

      Note: "show so far"

      Google's turn will come next week.

    2. bobdobbs

      article fail

      "That’s the meat of the prosecution’s copyright case."

      Hah, sums the article up for me too: seeing as how there's no prosecutor in a civil proceeding, methinks this article is somewhat under-researched, or at least there's a lack of understanding of the prceedings on show.

      Don't even get me on to the quoting of dear Florian as some sort of impartial pundit...

      1. diodesign (Written by Reg staff) Silver badge

        Re: article fail

        I think you're being grossly unfair - you're effectively asking "who's winning?" in the first innings of a cricket match. That's why newspapers and telly news people tend to end their reports of on-going court cases with the words "the trial continues".

        You have a point about prosecution v litigant. This is a civil matter, but that doesn't distract from my above point.


        1. Vic

          Re: article fail

          > you're effectively asking "who's winning?" in the first innings of a cricket match.

          No, we're not.

          We're asking you to stop quoting Florian Mueller as if he were some sort of unbiased source of all things truthful.

          He is a paid lobbyist. And he's on Oracle's payroll. How objective do you imagine that might leave his utterances?


          1. diodesign (Written by Reg staff) Silver badge

            Re: Re: article fail

            And I'm not referring to Mueller, because it's a one-line link in an otherwise longer analysis piece by a neutral author.


        2. Anonymous Coward
          Anonymous Coward

          Re: article fail

          But isn't the statement: "So... it doesn’t look great for Google. " rather like saying "It doesn't look good for England" after the opening couple of overs of a 5 day test?

          So far we have had Oracle stating their case and trying to get the witnesses from Google to do anything more than dead ball their questions.

          In reality its far to early to say how its going at all, apart from the Judge telling people that he will be deciding on the copyrightability of the APIs and not the jury.

          1. diodesign (Written by Reg staff) Silver badge

            Re: Re: article fail

            "But isn't the statement: 'So... it doesn’t look great for Google' rather like saying 'It doesn't look good for England' after the opening couple of overs of a 5 day test?"

            Perhaps so, but that's Andrew's measured opinion; Oracle is presenting a tough case, after all.

            But my point is that there should be no suggestion that we're omitting or censoring Google's defence.


            1. Tim Parker

              Re: article fail

              "But my point is that there should be no suggestion that we're omitting or censoring Google's defence."

              With respect however, in my opinion, your point is wrong,. There are been quite a lot of 'defence' in the opening statements, the questions from the defence council and reams of technical details available before the trail began (some of which is cited). I cannot see any proper discussion of that - hence I believe that the phrase 'omitting' is not without merit.

              There is also (IMO) either a lack of technical understanding of the issue or a definite slant (concious or unconcious) regarding the discussion of the alleged clean room code generation... this is even more surprising when taken along with Andrew's article on the perils of API copyrights (which makes a half decent fist of explaining some of the problems with that) in light of which I have trouble doubting his technical insight here. This view may, of course, be wildly misguided but i'd maintain "it doesn't look good for England".

    3. diodesign (Written by Reg staff) Silver badge

      Re: Steve Knox

      "Had you even tried to include the defense's side..."

      Typically speaking, trials are 'he said, she said' affairs: one day the prosecution or litigants will say their piece, then the defendants will have their say at a later point. You can't preempt the full defence until it's played out in court.

      It's like asking during the first innings of a cricket match, "Who's winning?"

      See Andrew's previous article for more on Google's side of the argument.


  13. jilocasin

    Google didn't need a license & others have taken one either.

    So much wrong in so few words.....

    There is _no_ license required to build/use Java the language, nor Java the JVM. You _do_ have to acquire a license to the test suite (TCK) if you want to call your result 'Java' or Java compatible.

    It's in the TCK that Sun (now Oracle) hid such nastiness as the dreaded Field Of Use (FOU) restrictions that among other things prevents you from running what you've built in the mobile space.

    The Apache Foundation never accepted the FOU for the Harmony project. They never took a license from Sun, didn't need to. Still doesn't need to.

    HP doesn't have a license for their ChaiVM or their MicrochaiVM implementations.

    Google wrote their own VM Dalvik. It's _not_ a JVM. It can't run Java programs. Google wanted a programming language that many programmers already knew to write code for Android. The apparently went with Java_the_language. To be compatible with Java_the_language they based the language on Java as documented by the freely available API's. They started with the Apache licensed Harmony project and adjusted it to create code that they felt was more appropriate to mobile development and compiled to code that would run under their Dalvik VM. Dalvik byecode won't run under a Java VM and Java bytecode won't run under the Dalvik VM. The only part of Java that android uses is Java_the_language.

    Most people, I would have said all but obviously Oracle doesn't agree, agree that you can't copyright a language. Courts in the US have already ruled that having a copyright on a system does _not_ give you any rights on a subsequent implementation of that system.[Baker v. Selden, 101 US 99 (1879)]. The only parts that are identical are those _required_ to be identical for compatibility. (Yes, I realize that there were a couple of cases of literal copying, but that's a different issue that the one here. Google's already removed them and they may face a small fine for that mistake.)

    Oracle's stance is that since they literally own the copyright to the book the defines the Java API's that you need a license to implement any system that uses them. Unfortunately the courts have never actually ruled on the applicability of Copyright to API's. Up until this point no one ever thought that they needed to. It makes as much sense as having to get a license from Webster to use the English language simply due to the fact that they hold the copyright to an English dictionary.

    Is a shame that Oracle's sunk so far.....

    1. Fred Flintstone Gold badge

      Re: Google didn't need a license & others have taken one either.

      Thanks for that - that's a very clear summary.

      Having said that, I can see Oracle being pretty annoyed with having the product, and Google walking away for free with the work involved in creating the language, the docs and the dev base without paying a penny (sorry, dime), but if that cannot be licensed, so be it.

      I suspect this will rumble on for a while, in effect creating the same environment around Android that Microsoft created around Linux: the vague fear of infringement. All Oracle needs to do is to keep the potential threat elevated enough for developers to start worrying (and maybe buy a separate license if it was available)..

    2. Ian Michael Gumby

      Re: Google didn't need a license & others have taken one either.

      Your basic premise is wrong.

      You do need a license.

      At least to run on mobile appliances.

      1. jilocasin

        Re: Google didn't need a license & others have taken one either.

        You should go back and reread the relevant licenses.

        You only need a license if you want to call what you've created 'Java'.

        The whole 'can't run it on mobile' thing you are referring to is in the Technology Compatibility Kit (TCK). You can only call what you've created Java if you license the TCK and pass all the tests. In the TCK is what's called the 'Field of Use' restriction. It's what says you can only run Java SE/EE on _non_mobile_ devices.

        Apache's Harmony project wouldn't agree so they could never call Harmony "Java". Harmony has _no_ license from Sun/Oracle. Like Google, they don't need one.

        Do you have anything to back up your expressed belief that:

        " Your basic premise is wrong.

        You do need a license.

        At least to run on mobile appliances. "

        Anything at all?

  14. Tom 35

    chief prosecutor?

    What? It's not a criminal trial.

    Or is this story from the people who brought us the "you wouldn't steal a car" BS.

  15. Simon Lyon

    Not the only Java implementation without a license

    Apache Harmony is a clean implementation of Java and they never paid Sun a thing - nor do they have to. And Harmony is what Dalvik is based on. You only have to pay for a TCK (compatility kit) if you want to actually call it "Java".

    If you want a proper legal analysis try ...

    Oracle Lawyer: What is the Java Specification License (JSL)?

    Ellison: The JSL lets you look at all the design specifications. It allows you to build your own version of Java. After building your own version, you have to run and pass a compatibility test, called a TCK. Oracle charges money for the TCK. Once the TCK is passed (and accepted by the JCP), you are granted rights to the Java copyrights and patents. The JSL is free, the TCK is not.

    Note that Ellison is mischaracterising the situation here - as noted you only "have to" pass the compatibility test to use the Java name. Google don't.

    1. Ian Michael Gumby

      Re: Not the only Java implementation without a license

      Funny, but Apache said Google's bastardization wasn't based on their project.

      1. Vic

        Re: Not the only Java implementation without a license

        > Apache said Google's bastardization wasn't based on their project.


        Google's codebase is freely available. A comparison with Harmony will show a remarkable similarity...


        1. Ian Michael Gumby

          Re: Not the only Java implementation without a license


          You can google it.

          Try the WSJ or El Reg

          Like this article..

          When Oracle sued Google over Android, many assumed the database giant would target code Google lifted from the Apache Foundation's open source Java incarnation, Project Harmony. But Oracle just pinpointed [1] six pages of Google code, claiming they were "directly copied" from copyrighted Oracle material, and according to Apache, this code is not part of Harmony.

          1. Vic

            Re: Not the only Java implementation without a license

            > But Oracle just pinpointed [1] six pages of Google code ... and

            > according to Apache, this code is not part of Harmony.

            Then your logic is incorrect.

            What you claim above shows thast Google added material that was not in Harmony. That was never in doubt.

            What you claimed was that "Apache said Google's bastardization wasn't based on their project."[1]. This is a completely different statement.

            I could write a set of plays which are word-fro-word identical to the collected works of Shakespeare, then add six pages which are nothing to do with him. Any reader familiar with Shakespeare could testify that those six pages were not written by him. But it would be entirely untrue in that situation to say that my "bastardization wasn't based" on what Shakespeare wrote, because the rest of it would be identical.

            And so it is here; the fact that Android is not *identical* to Harmony - provably so, although AFAIK no-one has ever claimed is is - in no way means that the one is not based on the other.

            You've made a basic error of logic.



            1. Ian Michael Gumby

              Re: Not the only Java implementation without a license

              No Vic, the error in logic is yours.

              Try and follow it...

              1) Clean room work has to be done in a clean room. Any outside contamination destroys the fact that it wasa clean room effort. Meaning you can't claim your work was done in a clean room when it wasn't.

              2) Google claims they based their work on Apache. APL allows anyone to do anything with their code under very liberal terms.

              3) Oracle's smoking gun. Some of the code wasn't part of Apache and could be traced back to Sun.

              4) Apache says that code isn't theirs...

              This means that Apace did break the clean room, Google did.

              And that's a crucial point.

              Google admitted that some of the code was added by a third party and it was since removed.

              Doesn't matter, the damage was done. Even if the infringement was small, it's all the proof Oracle needs to destroy the clean room defense. The reason the bar is so low, is that it's difficult to find occurrences. I mean Timmy could always pull up a window and look at Sun's code to give him ideas of how to do something. While he may not have cut and pasted the code, such an act would be a violation of a clean room build. Also if you can find one infringing act, it's more than likely another infringing act occurred elsewhere.

              Oh and let's look at Google's defense here and elsewhere....

              'a third party did this...'

              'a rogue programmer did this'

              'we did it because we wanted to maintain the users experience'

              1. Vic

                Re: Not the only Java implementation without a license

                > the error in logic is yours.

                Once again, you accuse others of your own faults.

                > Apache says that code isn't theirs...

                Apache said no such thing.

                They have said that *not all* the code in question is theirs. And that was never in dispute.

                If you cannot see the difference between that and what you claim, then there really is no hope for you.


  16. Mikel


    This string taints every article it's in, making it unworthy of print.

  17. Anonymous Coward
    Anonymous Coward

    Excellent intro

    The Java licensing history lesson is excellent especially the part about the difficult middle ground Sun walked.

    Can the jury understand any of this? I suggest they will base their decisions as much on who seems like a crook and who doesn't. They have to be asking themselves if Google is innocent why all the subterfuge -- scrubbing the J-word from their documentation, and such and why the evasive answers on the stand? They acted like they were stealing something and it shows. Google will come in and say if they're so guilty why the praise for Jonathan Schwarz. Stay tuned for that.

    1. Anonymous Coward

      Re: Excellent intro

      > scrubbing the J-word from their documentation

      As has been mentioned by a few people, if you want to call it Java, then you need to license the test kit, which they didn't.

      With a slightly different bias, you might say that they were duty bound to "scrub the j-word" from the documentation.

      1. This post has been deleted by its author

    2. Richard Plinston

      Re: Excellent intro

      > Can the jury understand any of this? I suggest they will base their decisions ...

      They won't have to. The judge will decide if APIs are copyrightable as a matter of law. The facts are not in dispute, Google has the same APIs as Java, so the jury has nothing to decide.

  18. Anonymous Coward

    Stay Clear Of Java

    ...or get sued if your product is successful by Mr Larry's minions. That is the message out of all this. No matter what the details are, Mr Larry needs his yachts in perfect working condition and that costs money.

    So if you write a successful Eclipse plugin - expect to be sued by Oracle.

    If you write a successful Tomcat web service - give Mr Larry his cut, or be sued !

    You think this is pulled out of thin air. Well, then wait until the legal artillery is trained on your little(or not so little) arse.

    I don't get why Google didn't simply use Perl. It surely is as efficient as their J-contraption and disciplined programmers can create complex software in that language.

    Use Java and be damned - that is the message of Mr Larry.

    1. Tim Parker

      Re: Stay Clear Of Java

      "I don't get why Google didn't simply use Perl."

      Perhaps they decided up-front not to use a write-only programming language..

      " It surely is as efficient as their J-contraption and disciplined programmers can create complex software in that language.

      Ahhh - 'Perl' and 'disciplined programmers' (almost) in the same sentence... novel, I like your style :)

  19. Simon Lyon

    Re: Not the only Java implementation without a license

    Apache have said that Dalvik wasn't "based" on Harmony.

    But that's a wide term and (no doubt not wanting Mr Larry to add them to his list) I expect they meant it isn't a direct port, recompilation, cut-down Harmony-lite, etc, of their codebase.

    What I believe Google have said (incl in court) is that when they wanted to figure out the best way to, and good practices of, creating a new Java Spec implementation they looked at how Apache had done it - not how Sun had built it originally. Incl no doubt the API definitions, yada yada.

    Which (as an admin, not a developer) makes sense to me. Sun/Oracle's implementation has been built up over time, modified, upgraded, probably kludged here and there. Maybe got a bit flabby?

    Whereas Apache took the resulting spec of that and built a much newer implementation from scratch - their code is bound to be a lot cleaner than the slowly evolved Sun version, is it not?

    1. Anonymous Coward

      Re: Not the only Java implementation without a license

      Dalvik is a VM and has nothing whatsoever to do with Java.

      Therefore, of course it wouldn't be based on Harmony, which is a library implementation.

    2. Vic

      Re: Not the only Java implementation without a license

      > Apache have said that Dalvik wasn't "based" on Harmony.

      Are you sure about that? There's an awful lot of import statements with "harmony" in them for that to be true...


  20. Montana Jack

    Thievin, pure and simple

    It's thievin pure and simple.

    Them Sun boys built this fancy contraption and most everone that look at it says it's mighty fine. The Sun boys they said anyone can use it free but you wanna build one like it, pay me a nickel so I can keep the horses fed. And just bout everybody did, paid em a nickel. Then the Google Brothers rode into town and think it's pretty fine too but heck, they'll just take it even though they's signs posted everwhere. They don't care bout no signs. They didn't get rich readin no signs and givin way money. Well they been caught but hired theirselves a fancy dressin lawyer says even though everyone else paid a nickel and they is signs everwhere the thing is free like the air so the Google Brothers could take it for nothin just like breathin.

    That's just fancy lawyerin. It's still thievin.

    1. Richard Plinston

      Re: Thievin, pure and simple

      > And just bout everybody did, paid em a nickel.

      No they didn't.

  21. A J Stiles

    No case to answer

    Firstly, the interpreter in Android is based on Apache Harmony. Which was an unofficial clone of the Java programming language. Unofficial because it was unable (for Oracle's capricious reasons) to pass the test suite required to make it official. No intellectual property inheres in a language.

    Secondly, what the "copied" code does couldn't sanely be done any other way. This places it beyond the scope of copyright protection.

    Google should push to have the (non-)case dismissed, and Oracle branded Vexatious Litigants.

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