Last Gasp of Sun's Semi-Openness

by: Joel West

Throughout its lifespan, Sun (JAVAD) always had a schizophrenic view of open standards. Some of the things it did were very open, like giving away specs and/or implementations of things like RPC and NFS. Some of the things were traditional proprietary licensing models — akin to Microsoft (NASDAQ:MSFT) or Intel (NASDAQ:INTC) — with SPARC chips, Solaris and the like.

On the other hand, Sun’s use of open source was always semi-open, as I noted in 2003 in my most oft-cited open source paper. In fact, Sonali Shah (now of U. Washington) coined the term “gated source” to refer to Sun’s use of open source-like approaches inside an extranet during the past 15 years or so.

While Sun eventually embraced open source, its opening always seemed like too little, too late. Certainly during its entire lifespan, Sun’s was at best semi-open — a combination of (as I put it in my 2003 paper) “partly open” and “opening parts”.

The crown jewel of Sun during its final decade was the Java programming language. One offhand estimate I heard was that Sun spent more than $1 billion in R&D on Java before it was gobbled up by Oracle (NYSE:ORCL), but that number seems low.

Now Oracle (owner of Sun’s IP and employer of a few of its former leaders) is suing Google (NASDAQ:GOOG) for its independent implementation of Java in the Android platform. Since neither the IP nor the alleged infringement has changed since the first Android phone shipped two years ago, the lawsuit seems driven more by the change in management than a change in IP use.

Oracle is represented by David Boies, who once helped sue Microsoft for antitrust violations but more recently represented SCO in its suit against Linux and IBM.

The Merc sees it as a negotiating ploy:

While Redwood Shores-based Oracle did not specify the amount of damages it will seek, one analyst said the stakes could be high. But he also suggested the lawsuit may be a strategic move by Oracle in the course of a larger negotiating effort.

"At the end of the day, it could mean a fair amount of money," said Al Hilwa, a software industry expert at the IDC tech research firm. Based on other similar past disputes, he added, it's likely that the two companies have been negotiating quietly for months.

"Going public with a lawsuit may well be part of a strategy by Oracle for trying to force the issue," Hilwa said.

In contrast, ComputerWorld quotes a Gartner analyst who (correctly) suggests that Oracle will have a hard time making a case:

When Google developed Android it included a Java compatible technology called Dalvik with the phone OS. Dalvik was developed as a "clean room" version of Java, meaning Google built it from the ground up without using any Sun technology or intellectual property, said Gartner analyst Ken Dulaney.

"You can't just take a Java application from a Sun environment, where it's licensed, and run it on Android. You have to recompile it to Dalvik," Dulaney said.

The cleanroom process is almost 30 years old, used for hundreds of clones of the IBM PC, Adobe’s (NASDAQ:ADBE) PostScript interpreter, and many other copryighted software technologies owned by litigious wealthy IT companies. When used properly, it is very effective — which is why Dell (DELL) and HP (NYSE:HPQ) are shipping more Wintel PCs than IBM, which dumped the business it created.

If Google used this process, Oracle faces a nearly impossible task of proving copyright infringement. If it didn’t — with all its brains and resources and lawyers and egos — then certainly it deserves to pay whatever a jury hands out in a courtroom.

In fact, Android does not have a complete Java implementation, but the Java language syntax with a different set of APIs that brought heartburn to Java programmers (and Sun).

I don’t know much about the Java patent portfolio, which is potentially a more seriously threat to Google, since a cleanroom or independent invention is no defense for patent infringement.

I was curious to find no record of Sun asserting Java patents against other firms, at least openly. The only Java patent litigation I could find was a $92 million settlement in 2004 by Sun in favor of Kodak (EK) for Java infringing patents created by Wang Laboratories (and bought by Sun)

Certainly there have been at least limited Java clones, including HP’s MicroChai in 2001, which apparently shipped in a few HP devices.

So does Sun/Oracle have a weak case? Has it been using the patents behind the scenes to win royalties or eliminate competing Java implementations?

However, the fact that Sun has patents to assert over Java implementors shows that it always intended the Java platform to be semi-open, and that its abortive effort to make Java a truly open standard was never intended to give up control.