A Soft Pitch for Google

Judge Alsup in Oracle v Google has written,
“In reading the Daubert briefing, it appears possible that early on Google recognized that it would infringe patents protecting at least part of Java, entered into negotiations with Sun to obtain a license for use in Android, then abandoned the negotiations as too expensive, and pushed home with Android without any license at all. How accurate is this scenario? Does Google acknowledge that Android infringes at least some of the claims if valid? If so, how should this affect the damages analysis? How should this affect the questions of willfulness and equitable relief? Counsel should be prepared to address these issues at the hearing.”

Early on, Google was considering using Java in the virtual machine, so the question was appropriate. The reason Dalvik was chosen is that Dalvik has nothing to do with Java and Google would not need a licence for Java.

Expect Google to hit this one out of the park. In education, this is what is called a “teachable moment” – something comes up where the student is wide awake and curious. Google was negotiating with SUN back in 2005-2008 when Android was being developed. Google did not want Android to be GPL software so they did not want to use Java even if they were willing to pay what SUN asked. Google might have negotiated a separate licence for Java, not GPL.

There is something seriously wrong with Google’s attitude to FLOSS/GPL “at the application layer”. A Java VM could run as an application on the OS and would not “infect” Android at all if they set things up right. However, that attitude of Google’s is well documented and should put the nail in the coffin of any idea that Android uses Java and needs a licence for Java.

About Robert Pogson

I am a retired teacher in Canada. I taught in the subject areas where I have worked for almost forty years: maths, physics, chemistry and computers. I love hunting, fishing, picking berries and mushrooms, too.
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8 Responses to A Soft Pitch for Google

  1. Ray says:

    Twitter, it’s true, but they have other ways of doing it, like using CDMA services, where people can’t change carriers at all, and have to switch phones. To get away from that, you can just use GSM.

  2. oiaohm says:

    twitter gpl does not stop the phone from being locked down.

    Change from selling the phone to renting the person the phone. Problem solved. Since user does not own phone they are not allowed to change it.

    Companies are slowly getting over themselves. More and more phones are released that can have their software replaced. So the phone companies and Telco’s are already losing control. Its more the phone companies and Telco’s getting use to the fact they cannot control it.

  3. twitter says:

    I’m not sure, oiaohm, that phone companies would be happy to have gpl’d software even today. They fight to extract every last dime from users by selling them features that have been made over and over again in free software. Telco’s demand non free software and lockdowns of the sort Apple delivered them and they demanded the ability to lock down Android so that most phones sold are jails. Google proved they were on the right side of things by forcing open access in the 2007 spectrum bidding that they lost [2]. Not using GPL’d software hurt Google and their users but it might not have been a choice and probably won’t be a choice for companies selling phones until people demand regulations assuring them software freedom.

  4. Those copyright violations were not part of what was to be distributed on phones but just to the developers. That’s a pretty weak charge.

  5. Contrarian says:

    #pogson, you may have a valid point, but the cite you presented shows that the judge has some belief that the patents apply and he is likely to have more to say about it than you might. I don’t think that this is so open and shut as you say.

  6. oiaohm says:

    Robert Pogson you have got half the story. 2005-2008 is in the time frame MS, BSD and other companies FUD against had worked against a lot of hardware makers over GPL and LGPL licenses.

    So that Android could punch into the market google need it license free and without being GPL or LGPL.

    “There is something seriously wrong with Google’s attitude to FLOSS/GPL “at the application layer”.” No their was something seriously wrong with hardware makers. Even Motorola at the time was avoiding using GPL and LGPL in the application layer in their Linux phones.

    If google lost today and had to make android LGPL most of the hardware makers would not be worried now. They understand now that LGPL and GPL is not IP thief if treated with respect.

    “Java is distributed under the GPL.” Missed a bit “GPL+linking exception” is Java. Not as infecting as GPL or LGPL.

    Yes the GPL+linking stuff is fully protected against Oracles patents. So anyone using that stuff is free and clear.

    Oracle wins Android keeps on going maybe a different license. Google wins Android keeps on going the way it is.

    End result nothing changes in the market place. Really Oracle and Google back on good terms would help Android with other Patent issues it has. Oracle has stock pile MS has to pay them for. Some ways if I was Google I would consider giving in on License in exchange for assistance against other patent threats.

    Even if Dalvik beats the Java VM clains their are still the copyright breachs in the API. Where google did not do things the correct way.

  7. The virtual machine stuff has been around for 40 years. There is no valid patent on that.

    Further, it is questionable whether Java can be distributed by anyone if a licence for a software-patent is required. Java is distributed under the GPL:
    “If you cannot distribute so as to satisfy simultaneously your obligations under this License and any other pertinent obligations, then as a consequence you may not distribute the Program at all. For example, if a patent license would not permit royalty-free redistribution of the Program by all those who receive copies directly or indirectly through you, then the only way you could satisfy both it and this License would be to refrain entirely from distribution of the Program.”

    That would essentially kill Java as a mobile platform. All those who were given a licence by SUN/Oracle under the GPL would have a strong case if Oracle went after them for a patent-licence. Oracle, might be able to issue Java under a different licence in the future but they cannot take back the millions of licences they have issued so far, even to Google.

    This case blesses Android if Google wins and it is a foot-gun for Oracle if Oracle wins. Hell will likely freeze over before these two will “settle”. I expect Google will win and Oracle will be seen as foolish. You cannot monetize a wild bird without killing it.

  8. Contrarian says:

    “Google would not need a licence for Java.”

    It seems to me that the quote you referenced suggests that there are patent issues surrounding java. If so, the tactic of providing a work-alike substitute, such as Google seems to be doing, would likely have the same patent liability as was created with the original java. Google can get out from under the copyright issues, but not the patent issues. This is a patent infringement lawsuit, you know.

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