Oracle subpoenas Apache in search of Google smoking gun Oracle is going after the Apache Software Foundation and its open-source version of Java to find the smoking gun it clearly believes will prove Google deliberately violated patents and copyrights it owns on Java. The database giant hit the open source group on May 2 with a subpoena demanding they surrender a raft of …
"Oracle hopes will prove its case that copyrights and trademarks have been infringed and that there was intent."
Not trademarks. Patents. One hopes that Oracle is sure about its trademarks.
Ellison really is a nice guy. Looks like after the recent bumpy train rain, the Java Developer Community will be treated to free showers. Please disregard the legal attack dogs while exiting the wagons.
"Journalists and analysts it showed the snippets under NDA came away convinced SCO had a case"
Well I was shown a software module (malloc) which I had seen many times before, and recognized it as being in BSD. So I was not convinced SCO had a case... and I wrote as much in my article for BYTE.com...
I do agree that this Oracle debacle seems likely to condemn Oracle to a similar fate as SCO, however, and considering the size of Oracle, that is both an awesome and fascinating possibility...
SCO's stock was trading at, like 11 cents a share. When they sued IBM it rose to over 20 dollars a share, which is where everybody immediately shorted this piece of garbage.
Then close at 15. then shorting again, e.t.c. e.t.c. Millions transferred from suckers and fanbois into the pockets of the 6? lawyers running the SCO scam.
The line is seriously blurred.
Does a netbook with a factory emedded 3G module classify as mobile? Where does this one classify into: http://www.reghardware.com/2011/05/04/motorola_atrix_out_on_orange/ ???
Further to this, the Davlik VM does not run on top of a mobile-specific OS. It runs on top of a generic OS - Linux which can run on a mobile, on a tablet a netbook or even a desktop PC (if you feel like it).
If the logic of "field of use restrictions" is followed Oracle should require only Java ME to be run on WinCE, QNX and WinXP embedded because these can theoretically be used in mobile devices. Yeah... b***ocks...
In fact, the Java license in the field of use restriction parts is frankly outright illegal in half of the legislations out there. It is about time it saw its day in court. It is none of Oracle (and Sun before it) business if a java user would decide to control a nuke or a nuclear plant with it.
"Back when SCO was suing IBM over Linux, the Utah pariah – like Oracle – showed code it claimed proved its copyrights and patents had been violated. Journalists and analysts it showed the snippets under NDA came away convinced SCO had a case. The US courts decided SCO didn't."
Which goes to show that journalists and analysts aren't lawyers.
The US courts decided that SCO did not have standing, regardless of whether the code was copied or not. At the time, Novell probably could have sued, as they actually had the Patent/Copyrights that SCO was claiming to have.
This is completely different than the case here with Oracle's ownership of Java. No one is claiming that Oracle does not have standing.
"Google has pointed that out Harmony is a clean room, open source implementation while other parts of Android, including portions of Dalvik, were independently developed. Apache makes it clear that the code in Oracle's filing is not from Harmony."
Google points to Apache. Apache denies that the code Oracle posted is from Apache. Oracle has to go to Apache and get documents. Even if the provided documents confirm what Apache says is true, its a win for Oracle because its not Oracle's word against Google, but shows clear evidence that Google's code isn't based on Apache. The point is that the absence of a 'smoking gun' also works in Oracle's favor.
And it gets better. Depending on what they (Oracle ) find, you can bet that they will go after the commiter's personal e-mail seeking out of channel communications on this topic. Assuming that these people didn't already delete them. And yes, everyone knows that whenever you have something like Apache, there are also out of channel communications. Especially on delicate topics such as this....
> Oracle is going after the Apache Software Foundation .. with a subpoena demanding they surrender a raft of communications with Google, plus other documents on the source code of ASF's Project Harmony ..
If the source code is already available, then why can't they point to the offending lines-of-code, or are they pulling a SCO here ...
> Oracle wants written proof that Google and ASF knew there were restrictions on what Google could do with Harmony in Android and that people looked for ways to bend the rules or just break them.
ASF to Google: are we compliant with the license.
Google to ASF: Lets make sure we're not violating the license.
Oracle: See, proof positive that they are in violation.
According to this logic, anytime someone consults a lawyer over the terms of a license, then this constitutes proof that they are in collusion to violate the license. In that case the entire legal process is in doubt.
There is *some* point in Oracle demonstrating that the subject came up between Google and ASF. It would establish that any violation was "knowing" and therefore subject to triple damages.
However, your basic point stands. It must be possible for folks to make an effort to stay legal without that effort being a thought-crime. This is sufficiently obvious that I'd expect the court to give Oracle's lawyers a good slap if they try and argue for this little catch-22.
There is clear reason for Oracle to demonstrate that Google and ASF knowingly acted inappropriately. I doubt that they are looking for any conversation stating that they need to stay compliant. They are looking for actual collusion. Such as:
"That bit of code not compliant."
"I know, but no one will notice."
Look,
In a lawsuit Oracle only gets one bite at Google and there's a lot of money on the table....
Oracle already got the judge to shoot down Google's claims that their interpretation of what Sun's lawyers wrote meant that they could do what they did. (Wording of the patents ...)
Now Oracle has to take out the 'Apache defense'.
Oracle has to go through the motions and do their due diligence to counter everything that Google claimed as part of their defense.
If you go back and read Google's initial and then subsequent responses to Oracle's complaint, Oracle has to address all of the issues.
If Oracle finds anything... Its bad for Google. And yes, punitive damages would apply.
Getting the feeling Oracle just started to understand you can't win a copyright case if someone else owns the copyrights. So time for the backup plan, licensing.
It's always been a licensing dispute, the long standing refusal of Sun (now Oracle) to license full strength Java for mobile devices, the ongoing blocking of Harmony, Google prescient avoidance of restrictive Java licences.
If Oracle believe they'll find Google admitting they're covered by an Oracle licence they haven't look hard enough at Google's past behaviour. What they'll actually find is the proof of just how carefully license issues were avoided. If oracle then continue with the attack, buy shares in popcorn, it's going to be hilarious watching the aimless flailing in court.
Look I'll cut to the chase.
Oracle owns the copyrights.
Oracle wants Google to license Java ME since Dalvick ?sp? is clearly a derivative work that Google did so that they could avoid the Java ME license.
The game hasn't even started and most likely Google will settle before trial depending on how discover wins out. In the end, it doesn't matter. Google will have gotten what they wanted out of it... Of course the interesting thing is after Oracle wins from Google, which of the Telco's manufacturers are next and which ones will then sue Google who should have indemnified them....
No, Oracle own a big pile of Java copyrights. They don't own Harmony copyrights. They dont own PolicyNodeImpl.java.
Unfortunately (for them) the law says you only get to sue for copyright infringement over copyrights you own. Not copyrights someone else owns and so far they've not shown convincing evidence Google has used anything Oracle actually own without an appropriate licence.
Oracles problem is they also can't seem to find any licenced use that would drag Google into their net.
There's a reason Oracle started with patents: they don't have much else and their structure and interface claims are doomed to failure in the AFC test.
Oh, it just gets better. Just seen the courts response to claims construction: there's a huge hint in there that the court will wait on the patent re-examination if Google asks for it. Along with the massive 132 becomes just 3 claims winnowing this is really bad for Oracle, the case could end long after winning has any value.
Also bad (for Oracle) because it tells us what the Judge is thinking, and what's he thinking is 'no bullshit'. This is the clearest sign yet that we aren't about to see SCO vs The World repeated, this time the courts are signalling up front they wont put up with that amount of evasion and delay.
...and that doesn't bode well for Oracles adventure in licence discovery, although it does show why Oracle were forced to go down that rabbit hole.
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"More and more effort seems to go in the direction of not actually producing anything towards a parasitic life form."
I agree that something is wrong in America. Too much time spent punishing success and encouraging/propping up failure (individual/institutional/corporate).
However, I'm not sure how it is parasitic for one company to protect what they have created. If the New York Times or The Times or whatever creates a newspaper, and spends their money paying people to create the articles and take the pictures and then someone just copies that newspaper and just changes the name, but charges less money... that's wrong! What's the difference?
American companies are spending more on R&D per year than most European countries take in taxes. Protecting property rights is key to companies continuing to invest in property (intellectual as well as physical).
Does is bother anyone that Oracles request for communications is a little overbroad?
Documents reflecting all communications between Google and Apache (whether nor not through the Open Handset Alliance )
concerning any license or other agreement,
any intellectual property issues, or
any compensation or revenue relating to Android,
including all communications regarding
Linux,
Harmony,
the Free Software Foundation's General Public License,
and the Apache Software License.
Things related to Harmony are certainly a no-brainier, but "all communications regarding" Linux, the GPL and the ASL seems like it could reveal all sorts of other, unrelated projects. The ASF may not have much to hide there, but it wouldn't sit as well if you substituted say Microsoft for the ASF and "Windows, Java, and Windows Licensing", suddenly you have a massive troll through a competitors communications for things which may disclose projects and business deals that could compromise those deals or provide competitive advantage to Oracle.
And in court in the US the judge has reduced Oracle's claims against Google from 132 to 3 :
"Currently, there are 132 claims from seven patents asserted in this action, and there are
hundreds of prior art references in play for invalidity defenses. This is too much. The following
schedule will ensure that only a triable number of these items — three claims and eight prior art
references — are placed before the jury in October, all others to be forsaken. Oracle will
surrender all of its present infringement claims against Google based on the 129 asserted claims
that will not be tried. Oracle may not renew those infringement claims in a subsequent action
except as to new products."
So a big face slap for Oracle there
No, no good guy, but I'd rate Google as the better guy. They've done quite a lot to lead various markets in great improvements, be it in search, maps, email or whatever. They tend to be a bit lax on copyright in places like YouTube and Google Books but I doubt they'd predicate an entire avenue of their business on copyright theft.
Conversely, Oracle's actions with all of the Sun acquisitions are almost a study in trying to use legalistic means to quickly consume whatever value is left as a precursor to dumping the lot.
But it's OK for Oracle to do stuff like take CentOS, make almost no changes to it and then release it as Oracle Linux. They're just bitter that Google at least understand this market and aren't bogged down by being too cumbersome and shackled by outmoded technologies like Java ME. Not that I'm siding with the Googlies either, particularly - just against Oracle.
Java seems doomed whichever way you look at it, hence terminator icon
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