Home Oracle / Google Verdict Suggests Open-ness Must Be Licensed

Oracle / Google Verdict Suggests Open-ness Must Be Licensed

The central issue in Oracle’s Java copyright/patent case against Google, which has been lost after a million-and-one interpretations of the case over the last two years, remains this:  IfCompany #1implicitly grants Company #2 the right to use technology that #1 created and owns, to the extent that it’s perfectly fine with #2 copying portions of that technology for its own purposes without seeking explicit permission first, does that implied consent transfer to Company #3 when it acquires Company #1?  The interim answer, issued by a jury in U.S. District Court in San Francisco today, appears to have been, “It depends.”

In today’s partial verdict, it appears that Oracle failed to capture the jury’s heart with a story that Google somehow conspired against it.  It’s difficult to believe that Google’s creation of Dalvik, a lighter-weight interpreter of Java code built for deployment in Android devices, was anything less than a genuine effort by Google to extend the reach of Java.  At the time the Dalvik project began, Java was under the stewardship of Sun Microsystems. Sun often portrayed Java as though it were public property nurtured by its own good graces. When Sun engineer John Rose first learned of Dalvik’s existence at a Google I/O conference in May 2008, his initial response was limited to curiosity coupled with the need for Sun to step up and provide guidance.

“The Dalvik bytecode design executes Java code in less power (fewer CPU and memory cycles) and with more compact linkage data structures (their constant pool replacement… reminds me of some recent experiments with adapting the JVM to load Pack archives directly),” Rose wrote at the time.  “The VM uses ‘dex’ files like Java cards use their own internal instruction sets. The tool chain does use class files, but there is a sizable… tool called ‘dx’ that cooks JARs into DEX assemblies. The dex format is loaded into the phone, which then verifies and quickens the bytecodes and performs additional local optimizations.”

It’s “dx” which serves to distinguish Dalvik as a machine in its own right. But the issue here was not “can Google copy Sun’s concepts to build a separate class of device?”  (The answer there would probably have been: Yes.)  The issue was to the extent that Google had to make Dalvik compatible with Java code by implementing bits and pieces of Sun’s original code (which it appears Google’s engineers did), how small do those pieces have to be before the difference between copying the idea and copying the execution becomes trivial and insignificant?

The issue of granularity is where today’s jury’s verdict shows signs of specificity. Without yet deciding the issue of liability (that comes later), the jury found that Google infringed upon Oracle’s property as a whole by having copied certain small elements of it in their entirety. The jury answered “yes” to Question 1A (whether Google infringed). But by answering “Yes” only to Question 3A, and not Questions 3B or 3C, the jury indicated that copying methods – not copying source files or English-language comments, but the way functions are executed and the way work is done – constitutes infringement.

What’s more, it infringes upon Oracle property, says the jury, even though Sun’s attitude toward that same property at the time was one of permissiveness. The implication here is, had Sun truly been interested in protecting the openness of Java, it should have made more explicit grants to Google up front, with clauses mandating that Sun’s permissions proceed to its successors.

Put another way, openness must be licensed.

The possibility remains that Google may not be penalized for this infringement – the jury may yet find that Oracle has not been damaged. (There’s a viable argument that Android may have actually expanded the market for Java, thus benefiting Oracle.) But this may be the last time in the computing industry (or at least for several weeks) where an “open-door policy” regarding sharing methods is treated as a waiver from having to use that door at all.

In a world where the caretakers of open source fight with just as sharp swords as anyone else, you’d best be careful whose door you choose to use.

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