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Comment by seldo | Hacker News Reader

Excuse the really really obvious question, but how can you sue somebody for intellectual property infringement on open-source software? Didn't you already give anybody the license to do what they wanted with it? If they've violated the license terms in some way, isn't that different from IP infringement?

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It's important to understand that Android doesn't use Oracle's open-source OpenJDK. An argument could be made that Oracle licenses the necessary patents only for OpenJDK and not for alternate implementations such as Dalvik. An argument could be made that Oracle licenses patents only for JVMs that are TCK-compliant, which Dalvik isn't. An argument could be made that Oracle licenses patents for GPLed JVMs but not for ASL-licensed JVMs (because ASL is "too free" perhaps?)

Thank you for this explanation. Until reading it this way my understanding of the whole affair was somewhat wrong.

Given that Oracle doesn't seem shy about going after a giant like Google makes me wonder what other software Sun owned the rights to that might be even remotely popular. If I were a company using a lot of old Sun IP in even moderately unique ways, I'd be a little concerned right now.

MySQL? BerkeleyDB?

Well, Sun own MySQL. But the drop-in replacement MySQL engine makers (infobright, percona, etc) might be a little worried.

The comment you're replying to pointed out that Oracle owns MySQL (acquired with Sun) and BerkeleyDB (acquired with SleepyCat).

I had forgotten they also owned BerkeleyDB (obviously I know that Oracle own Sun, is that why I'm getting downmodded?).

But my point still stands: makers of replacement engines for MySQL could be in violation of MySQL-related patents, which Oracle could then sue over.

They could, but they haven't, and probably won't. Oracle had a big database-related portfolio long before they acquired Sun/MySQL, which had relatively few. They even bought Innobase, makers of the InnoDB engine a few years ago.

Other database vendors (Percona et al., not IBM) don't have assets for Oracle to take, don't directly threaten their core business, and going after them would get Oracle in trouble with regulators.

Better to land a tuna than chase sardines around.

Thanks, it naively hadn't occurred to me that Android would be using a non-Sun JVM, and given what you've said it seems that would be a viable route for an IP lawsuit (though it still seems in pretty bad faith).

Dalvik would be better if Google had just licensed Oracle's Sun JVM or used the open source version. As an occasional Android developer I am constantly banging against the limitations and performance of Dalvik.

It doesn't do memory management nearly as well as the JVM, and it handles dynamic dispatch and one-off closure hacks (local classes) slowly. It won't easily accept generated bytecodes. It has mysterious performance headaches (mostly memory management related I think).

I'd prefer that Oracle go to heck with these bogus patents for the health of the industry but Google should have just cooperated from the start.

On the flip side, how do you know you wouldn't run up against those limitations on a phone that used OpenJDK? I don't do much mobile dev, but I've had friends that did JavaME development, and they didn't seem to like it any more than Android. Dalvik was designed specifically because Sun's JVM performed poorly on memory-constrained devices.

In other words, your issues may be caused by mobile development, not by Android development.

The Sun JVM is a lot of things and got a lot better and a lot faster over time, but it is an astounding memory hog. Only thing I've ever seen that will (seriously) reserve 64 bits for a Boolean field on a 64-bit VM.

Given that Eric Schmidt is the former head of Java at Sun, it seems unlikely they'd have written their own JVM if they didn't have a good reason to do so. Also, JavaME is awful.

There wasn't any cooperation available, unless Google wanted to pay megabucks for Java ME, and force their developer chain to do the same: Java ME was never open sourced.

Essentially, Sun said "We will give away Java, Open Source, as we planned to do. Oh, not mobile, because Nokia uses it and it makes us lots of money. Of course, we all understand reimplementing Java ME would be far too much work for any one company to do. Feel free to license."

Google said "Eh, we'll just write our own JVM that runs on phones, thanks. That's how we roll over here."

Now there are lawsuits, because Sun tried hard to make sure you had to pay if you wanted Java on mobile devices.

Dalvik is a register based VM, as opposed the the stack based JVM.

Also Sun removed the classpath exception when they put JavaME under the GPL. That means if you used the GPL'ed version of Java on a mobile device then it becomes viral - including to any application code. (That's why most GPL'ed Java programs use the classpath exception).

From Sun's point of view, this was a good idea because it allowed them to protect JavaME licence revenue. Google saw JavaME as outdated, though, so instead of licencing it they took the Apache licensed Harmony project (ie, a clean room, Apache licensed version of the Java class libraries) and build Android around it.

You haven't worked with Java ME then ;)

Dalvik limitations are very justified, and even if phones improve over time, Dalvik also evolves.

Also when going head to head with Apple and Microsoft on such a far-reaching platform, having full control over your platform is valuable.

another technical reason for going with a new VM: every process (e.g every app) runs its own VM for security purposes. dalvik claims to have a much lower memory footprint.

http://www.youtube.com/watch?v=G-36noTCaiA

I know "great comment" comments are silly, especially in a vote-based comment system, but seriously, great comment. Very instructive.

What if I take the open source OracleJVM and change every line, so that it become Dalvik? Wouldn't it still be derived from OracleJVM and hence covered? The approach would only be possible because Dalvik is open source, too, of course.

Your implementing a different instruction set.

Of course you can. There'd be no such thing as an enforceable software patent if any company could just sponsor an open source project to implement each part of its product that infringed a patent. Presumably --- hopefully 'grellas will clear this up --- Oracle can measure damages incurred by Google supplanting Sun/Oracle Java with their own Java in terms of percentage points of global smartphone revenue.

Here's some more context:

http://blogs.gartner.com/brian_prentice/2009/08/06/google-op...

I think you slightly misinterpreted Seldo's point. I think what he's getting at is that Java was made open source by Sun. At the very least I'd say that raises some kind of estoppel defense against any alleged infringement of Sun patents.

Patent owners can't just go around encouraging people to infringe, and then come back later and sue.

Sun licensed Java under the GPL which gives access to all of the patents on Java. But Google uses its own Java, not Sun's GPL licensed one, maybe they should have gone with the GPL instead...

Why didn't they do it ? Is it because of lack of ARM support ?

It was too bloated, among other things

So if I, as a company, release something as open source (licensing the patents[1] with no royalty to anyone who's interested, as long as they follow the rules in the license), then I, as the same company, can turn around and sue anyone who uses it for infringing those same patents?

[1] I assume that when software covered by patents is released as open source, the patents are also implicitly granted as part of the license, because if they weren't no one would be able to use it for anything because they would be infringing on the patents.

The only situation this can possible make sense in is if Google has somehow violated the license, thereby revoking their permission to use the relevant patents and exposing them to litigation.

You can probably sue somebody who uses different software that infringes your patents, which is what this lawsuit is about.

As others have said, it sounds like you misinterpreted the comment. The open-source software Seldo is referring to seems to be Java, not Android.

I'm struggling to understand this as well - I would have thought OSS licensing and software patents would be incompatible.

Sadly they are not.

This is why the W3C has a patent policy [1] to prevent contributed software and specifications from being covered by patents.

[1]: http://www.w3.org/Consortium/Patent-Policy-20040205/

If this still does not make any sense, realize that patents and copyrights, while both forms of IP, are completely different, legally. Also recall how open source GIF implementations were still covered by the Unisys patent.

Which is the sort of thing that did the other JEDEC members a fat lot of good when Rambus (spit) went on the warpath: http://en.wikipedia.org/wiki/Rambus#Lawsuits

I believe that was the purpose of the GPL3. You know, the one that nobody uses because it is too draconian.

Just because its open source doesn't mean that IP terms still can't be brought against you. Here's a simple example. Lets say that someone contributes someone else's patented algorithm into gcc. Now you ship gcc, not knowing about the patent infringement. All of a sudden you have a patent lawsuit on your hands.

This is probably the biggest reason why companies, like Microsoft, even when they do open source, don't accept contributions. Just because someone contributes specific code, doesn't mean they have the legal right to do so.

Sun showed that Java could be a timebomb. And in the hands of Larry Ellison, I think Google is just the first victim. Oracle will be going through uses of Java with a fine-tooth comb. Get your duck in order now.

Java isn't a timebomb. Sun has sold licenses to companies (ex. IBM) and the terms are well understood. Google didn't buy a license and is now going to deal with the outcome. If your running WebSphere or some licensed product this move will not affect you.

Plus, if you are an IT shop in the fortune 500, you company probably has closer ties with Oracle than Google.

// I am a little concerned with non-Java related VM's in case Oracle goes after them with these patents.

If the license doesn't mention patents, then it doesn't cover them. Copyright licenses and patent licenses are two different things. It's pathetic that the two are actually able to intersect in this manner.

The linked article is very unclear about what Oracle is suing about. From this article, it appears that they're claiming patent infringement (not copyright violation): http://www.ft.com/cms/s/2/d95fbb12-a671-11df-8767-00144feabd...

Sun/Oracle's Java implementation was released under the GPLv2, which doesn't include a patent license. I don't know if they included any patent license with the open source release. Even if they did, it doesn't help Google, because Android doesn't use the Sun/Oracle code, so it wouldn't benefit from any patent license that goes with it. Android is based on the Apache Harmony libraries on top of Google's own Dalvik VM. (Most of the Android code is Apache-licensed.) That code was all developed independent of Sun's Java and the implementation might infringe their patents, even though it doesn't use their code.

So take Sun's GPL Java, modify it - by say deleting all the sun code and inserting your own, then release the changes back to Oracle under the GPL!

I don't think that would hold up. The judge would consider it a new work, not a derivative, and therefore not covered by Sun's release of patents for the official JVM.

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