Oracle scorns open source: How to respond?

The message is clear: Fork all the main open source projects that Oracle owns or transfer energies to a replacement

This was bound to happen, of course. Things were going too well. At a time when Google is activating 200,000 Android phones a day, and Android has overtaken the iPhone in terms of U.S. market share, Oracle decided to drop the bomb:

Oracle today filed a complaint for patent and copyright infringement against Google, Inc.

"In developing Android, Google knowingly, directly and repeatedly infringed Oracle's Java-related intellectual property. This lawsuit seeks appropriate remedies for their infringement," said Oracle spokesperson Karen Tillman.

[ InfoWorld's Savio Rodrigues explains when you should open-source your internal apps | Keep up with the latest open source trends and news in InfoWorld's Technology: Open Source newsletter. ]

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The complaint [.pdf] offers slightly more detail, including the patents that Oracle claims Google has infringed upon. It also spells out what the company wants:

A. Entry of judgment holding Google liable for infringement of the patents and
copyrights at issue in this litigation;

B. An order permanently enjoining Google, its officers, agents, servants, employees, attorneys and affiliated companies, its assigns and successors in interest, and those persons in active concert or participation with it, from continued acts of infringement of the patents and copyrights at issue in this litigation;

C. An order that all copies made or used in violation of Oracle America’s copyrights, and all means by which such copies may be reproduced, be impounded and destroyed or otherwise reasonably disposed of;

That last demand -- that all copies of Android, including, presumably, the ones in our phones, must be impounded and destroyed -- raises the obvious question: what exactly is Oracle after here? That particular issue has been explored with commendable thoroughness by Stephen O'Grady, who concludes:

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 orthodoxy 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.

Of course, the other, even bigger, question, is: who has the law on their side as far as the facts of the case are concerned? Even if I were a lawyer, I wouldn't hazard a guess, since this particular case seems to be a puzzle inside a riddle wrapped in an enigma: there are so many interacting and conflicting aspects that it makes second-guessing what a court will find -- assuming it gets that far -- particularly unrewarding.

Instead, I'd like to note Google's response to the suit:

We are disappointed Oracle has chosen to attack both Google and the open-source Java community with this baseless lawsuit. The open-source Java community goes beyond any one corporation and works every day to make the web a better place. We will strongly defend open-source standards and will continue to work with the industry to develop the Android platform.

It will not have escaped your notice that the phrase “open source” is used no less than three times in one short paragraph. In other words, Google wants this framed as nice, open Google attacked by nasty, closed Oracle.

It's rather unfortunate for Google that this comes hard on the heels of its widely-criticised move away from Net neutrality - effectively part of the Internet's openness - which rather dimmed its halo. Indeed, it's hard not to suspect that Oracle seized that misstep in order to attack Google when it was uncharacteristically unloved by much of the open source world. Still, Oracle's threat is probably serious enough for most hackers to give Google the benefit of the doubt as far as its free software credentials are concerned.

Similarly, there seems little doubt that Google was being quite opportunist in the way that it implemented Android, guessing that Sun wouldn't complain about Google's cheeky approach of writing its own “clean room” “Dalvik” virtual machine (although, as Andy Updegrove points out, a clean room implementation won't in itself protect Google against claims of software patent infringement) rather than paying to use the official one.

Despite that, I think that it is correct to see this as a battle between closed and open in the important sense that Oracle clearly does not give a jot or tittle about the open source community, and Google does, albeit for self-interested reasons. Oracle's attitude can be gleaned from two key facts.

First, the extreme terseness of Oracle's press release announcing this lawsuit, quoted at the start of this post, makes no effort whatsoever to soften the blow as far as open source is concerned. Had Oracle cared, it would have made soothing -- and admittedly pretty worthless -- noises about not wishing to damage the open source community of Java hackers, and how important they were, and how regrettable it was that they would be innocent victims of wicked Google's naughty, naughty actions. Instead, we have zilch: Oracle just doesn't care what happens to the open source ecosytem that has grown up around Java -- and it doesn't even try to hide the fact.

Now, it might be argued that this is only the initial press release, and that Oracle might issue further ones clarifying its position, and softening the blow etc. etc. In response to which I offer Exhibit B:

OpenSolaris is Dead.

What follows is an email sent internally to Oracle Solaris Engineers which describes Oracle's true intentions toward the OpenSolaris project and the future of Oracle Solaris.

This concludes over four years that I (and many other external contributors) have worked on the OpenSolaris project. This is a terrible sendoff for countless hours of work - for quality software which will now ship as an Oracle product that we (the original authors) can no longer obtain on an unrestricted basis.

I can only maintain that the software we worked on was for the betterment of all, not for any one company's bottom line. This is truly a perversion of the open source spirit.

If Oracle really cared about OpenSolaris, it wouldn't have done this at all. But accepting that it had to make a possibly hard decision about ceasing to support OpenSolaris, it could have done it better in so many ways: offering its regrets and best wishes for the future, smoothing the transition to an external project, etc. etc. But no, the news creeps out as an unimportant aside - and on the very day that Oracle launches its lawsuit against Google.

To me, that says one thing: that Oracle does not care about open source, and probably never will while the present management and its culture is in place. Whatever the rights and wrongs of the action, and whatever Oracle hopes to get out of it -- money? influence? patent cross-licensing? -- the bigger picture is this: we can forget about Oracle as a friend of an open source. It might still occasionally work in concert with the free software world -- but always with ulterior motives; and as the Google lawsuit shows, it will not have the slightest compunction in making moves that damage open source in multiple ways.

So, starting from that premise, what can we deduce, and what actions does the free software need to take as a result?

The obvious, and easy takeaway is that software patents are utterly and completely destructive, and that they corrupt fatally anything they touch. There's a wonderful explanation from the creator of Java, James Gosling, about the root cause of Oracle's action, which flows from the time Sun was forced to embrace the insanity of software patents:

In Sun's early history, we didn't think much of patents. While there's a kernel of good sense in the reasoning for patents, the system itself has gotten goofy. Sun didn't file many patents initially. But then we got sued by IBM for violating the "RISC patent" -- a patent that essentially said "if you make something simpler, it'll go faster". Seemed like a blindingly obvious notion that shouldn't have been patentable, but we got sued, and lost. The penalty was huge. Nearly put us out of business. We survived, but to help protect us from future suits we went on a patenting binge. Even though we had a basic distaste for patents, the game is what it is, and patents are essential in modern corporations, if only as a defensive measure.

This is precisely the trajectory that Microsoft followed. Remember that before Microsoft went on a similar “patenting binge”, Bill Gates once wrote: “If people had understood how patents would be granted when most of today’s ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” We are fast approaching that standstill, and the Oracle lawsuit is yet another giant step towards it.

For that reason, despite his understandable Schadenfreude over the current Java debacle, Miguel de Icaza's slightly tongue-in-cheek suggestion that Google should adopt Microsoft's C# instead is simply jumping out of the frying pan into the fire. Probably more fruitful would be to join efforts to find prior art that might be used to get the Oracle patents reviewed and invalidated.

The other clear message is that the open source world needs to fork all the main open source projects that Oracle owns, or to transfer energies to a replacement. That's already happening with MySQL, which we can now officially declare dead, or at least moribund thanks to Oracle's taint. OpenSolaris was already well on the way to forking, and I'm sure that the people concerned will be working feverishly to bring their plans forward.

The one that really worries me is I've been using this for many years now, and watched how it has grown from a rather clunky alternative to Microsoft Office into a real rival that satisfies the needs of the vast majority of users. And that despite rather lukewarm support not just from Oracle, but from Sun before it. It's true that it might fit rather better with Oracle's overall enterprise strategy, but that doesn't necessarily mean it will thrive as an open source project. Forking would presumably be a major undertaking, but I think it's something that people need to start considering seriously.

As I've noted, I don't claim to have any insight into how this lawsuit will conclude, whether it will blow up into a long and bloody battle between Oracle and Google, or whether it will be concluded by some quick and relatively amicable solution. But I do believe that whatever happens, whatever it might nominally “win”, Oracle has certainly and irrevocably lost more in terms of trust and goodwill within the free software world than it will ever understand.

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