I wish the Google people would stop saying that. Oracle didn't sue open source. That doesn't even make sense, you can't sue open source any more than you can sue Santa. Beside the fact that the open-sourced Java implementations are explicitly unaffected by this lawsuit.
Also, I wouldn't be too sanguine: what do you think Oracle would have done had Google used the Harmony VM to produce a system like Android?
I think probably the exact same thing, if the resulting VM was not a spec-compliant VM or otherwise did not fall under the various IP exemptions. Dalvik itself is a much bigger opening for someone to use software patents in a predatory way - if what Gosling's been saying lately is true, Oracle had that as a goal all along. But much of that has to do with the unique peculiarities of Dalvik - a VM that runs something that's like, but isn't quite Java-as-specified.
Oracle is suing based upon relatively general patents that it would be difficult to implement a modern VM without running afoul of. The Apache Harmony DRLVM absolutely and positively runs afoul of exactly the same patents. In fact I would wager that Ruby, python, and several other runtimes are subject to exactly the same patent liability.
Saying "They didn't sue them" is preposterous. Patents don't require that you sue every subjective infringer. Instead, if you're a company like Oracle, you go after people with deep pockets.
http://en.swpat.org/wiki/Java_and_patents
ASF would be loudly crusading if they themselves thought they were actually directly affected by this lawsuit and the patents.
Dalvik is a cleanroom VM. I'm not quite sure what you're saying with this?
The OpenJDK comes with a patent grant. Cleanroom VMs have no such grant and it's impossible to make one without infringing on the patents.
Anyway, Dalvik does not even claim to execute Java bytecode, but its own language. Does that not mean that it is in pretty much the same legal footing as, say, the Python bytecode interpreter?
And there exists plenty of prior art on the VM, all the way back to 1966 ( http://en.wikipedia.org/wiki/P-code_machine ), so I am not so easily convinced that the patent is going to survive the trial.
To my knowledge Harmony has never been given a patent grant. When they tried to obtain the blessing, Sun responded by releasing the OpenJDK, which they bound (with conditions) their patent grants to.
If something else happened that I am ignorant of, please tell me, but to my knowledge Harmony has zero patent protection.
As an aside, the reason Sun refused to grant Harmony a patent grant was that there was the open possibility that it could cannibalize J2ME (at the time Sun was fairly successful in that space, so they were deeply protective, whereas they were failing on the desktop)
Dalvik, otoh, makes no claim or effort to be spec compliant, and there's no reason to expect they should get the grant.
I'm not defending Oracle here, btw. I think the suit is ridiculous, but on the more general grounds that software patents are inherently a bad idea that stifle innovation. I just don't think it helps anything to distract from the core issue by spreading FUD about Apache's exposure.
The Sun patent license grant is completely incompatible with the Apache License. As is it is impossible to combine the two. Apache isn't just grandstanding -- the conditions made it impossible for the patent grant to apply.
There is no FUD about Harmony. Harmony has zero patent protection. Any other cleanroom implementation has zero protection, exactly as I said, until you essentially bow to Sun cum Oracle. My original statement is factually correct.
Harmony doesn't have a patent grant now, that's true. But the reason it doesn't is because it refuses to accept the current license terms. I don't think this is "grandstanding" - it's absolutely critical, and I completely side with Apache. But the simple reality is that Harmony is in a much more secure position than Dalvik, and Apache has a much more defensible position than Google. To claim otherwise is pure FUD.
Why does it matter? Because people should care about the Google suit independent of the idea that Apache might be next. When you try to sell that idea, you make it sound like this lawsuit isn't actually all that bad compared to what it could be, but that's wrong. This is the case that matters, not some hypothetical against Apache. Get pissed now.
The Sun spec-compliant patent grant is impossible to bind to an open source license, outside of the targeted grant they provided OpenJDK (with its own conditions). Feel free to parade your ignorance though insults, but it doesn't prove your (completely wrong) claims.
Android, more than 'circumventing' Java ME, is its own system. You can't run Java ME code with it. Android has its own API.
Oracle is suing a downstream user of Apache Harmony. Even if they are not attacking the Apache Software Foundation directly, it is a dangerous situation when downstream users are sued for Patents.
If someone was suing users or re-distributors of the Apache Web Server, HTTPD, it would be the same situation.
It is important to understand that so far, and until I see more information, most and possibly all of the patents used in litigation are related to Dalvik, and not the class libraries. Apache Harmony has its own VM, DRLVM, which is not used in Android.
I believe it is still disturbing that Oracle is aggressively using Software Patents in the open source Java Realm. It creates a chilling effect on the future of the JVM as a platform in my opinion.
Oracle has not approached the ASF -- as others have mentioned, the ASF is a 501(c)(3) non-profit foundation, and a legal battle with Oracle would decimate any money we have, and that means Oracle couldn't extract any money from us anyways.
Internally the ASF is struggling with how to respond.
There is a general consensus within the members about the dislike of Software Patents, as you find within most groups of Software Developers.
However, there is not a general consensus about what the ASF could do, if anything. The ASF could write blog posts about the general issue, we could be more aggressive on the publicity side, but all of those are like poking a Grizzly Bear with a needle and hoping it doesn't rip your arm off.
In addition, because many members of the Apache Software Foundation have been or are currently employed by both Oracle/Sun, and Google, and/or have internal knowledge of things like the JCP, it is not a 'good' thing for the ASF to speak too early in this issue and become a victim smashed between two billion dollar legal teams. It is also likely in the event of a longer legal battle, many ASF members might be called in testify, further complicating what role the ASF as a foundation should have.
Everyone believes that many large companies have dozens or even hundreds of Software Patents that could apply to the various ASF projects, and we mostly exist in a peaceful state. Oracle has certainly changed that perspective. I don't know what the foundation will do going forward.
The Oracle suit has validated the strict rules that the ASF imposes by use of Contributor License agreements, and tracking of where all our source code has come from. Some open source developers choose to ignore these problems, but good governance is an important attribute if you want to defend against things like Oracle or SCO.
That, my friend, is the most chilling statement I've heard all year. We all go about our daily lives thinking we're safe in our cozy open source worlds and believing the leaders of our projects will protect us, but when folks like the ASF are left quaking in fear, it really shakes your foundations.
How can we even begin to contribute? I can code all day, but IANAL. How can I help buy one?
3. Grant of Patent License. Subject to the terms and conditions of this License, each Contributor hereby grants to You a perpetual, worldwide, non-exclusive, no-charge, royalty-free, irrevocable (except as stated in this section) patent license to make, have made, use, offer to sell, sell, import, and otherwise transfer the Work, where such license applies only to those patent claims licensable by such Contributor that are necessarily infringed by their Contribution(s) alone or by combination of their Contribution(s) with the Work to which such Contribution(s) was submitted. If You institute patent litigation against any entity (including a cross-claim or counterclaim in a lawsuit) alleging that the Work or a Contribution incorporated within the Work constitutes direct or contributory patent infringement, then any patent licenses granted to You under this License for that Work shall terminate as of the date such litigation is filed.
I always wanted to see what would happen if this was ever invoked.