Friday, April 20, 2012

The Lindholm testimony and the reality of Java licensing options

Yesterday was day 4 of the Oracle v. Google trial, and all observers were particularly interested in the testimony of Tim Lindholm, author of the Lindholm email. It appears that the testimony fell far short of meeting the expectations that this "smoking gun" piece of evidence had raised. Lindholm, who may have spent more time with lawyers recently than with fellow software developers, wanted to downplay the significance of the email and of his own involvement with Android.

Three facts appear particularly interesting to me. I'll comment on two of them quickly and then talk in more detail about the third item, licensing.

All of the reports I read indicate that Lindholm was extremely evasive. He tried to deny everything he possibly could deny, and to downplay the remainder. In particular, he didn't want the jury to think that he had too much to do with Android. However, Oracle presented a whole collection of Lindholm emails, spanning a period of more than five years and indicating that he was involved with Android, from a Java angle, at different points in time during that period. I guess he was primarily concerned about not saying anything stupid that would make things even worse than his most famous email, but whether he convinced the jury of anything is at least doubtful.

ZDNet's Rachel King, who belongs to a small group of people that kept an eye on this litigation even at times when there wasn't much mainstream interest in it, noted in her report that Lindholm "dance[d] around questions about Java licences". In that article you can also a see a picture of Lindholm leaving the courthouse. The report says that, after an agreement between the parties that he wouldn't be called to testify again, Lindholm made "two peace signs to much laughter throughout the courtroom". That's the second point I wanted to comment on. I can't see what's funny about the fact that he had to testify. He certainly didn't anticipate all of this interest in that August 2010 email -- if he had understood the consequences, he wouldn't have written it in the first place. Sometimes there are funny situations, and humorous judges and lawyers, but if every witness made such signs or other gestures at the end of a testimony, the courtroom would turn into a circus.

Eight years ago, the then-CEO of Deutsche Bank, Josef Ackermann, made the V sign in court, which "was not well received" according to Der Spiegel, Germany's most influential newsweekly.

The single most puzzling statement that Lindholm made is that his internal recommendation to negotiate a Java license ("We conclude that we need to negotiate a license for Java under the terms we need.") allegedly did not refer "specifically [to] a license from anybody". But in practical terms, there's no way that this could have meant anything other than a license from Oracle, directly or indirectly.

As Google itself admits, "[f]or the 37 accused API packages, Android and Java 2 SE Version 5.0 have substantially the same selection, arrangement and structure of API elements."

There's no ownership dispute over the copyrights to those API packages (a fact that Oracle lawyer Michael Jacobs stressed when Google made a big deal out of the fact that some of the APIs were contributed by community members). So Google needs a license to this and other Oracle intellectual property.

There are only two ways to get a Java license. On the one hand, there are commercial licensing options, but all of those have two things in common: a requirement for full compliance with the standard (no supersetting, no subsetting etc.), and the fact that royalties are due. On the other hand, there is more flexibility for modifications, and no license fee involved, if a licensee makes use of Oracle's (originally Sun's) Java developer kits that are available under the GPL, the same license under which Linux, MySQL and other free and open source software is also published.

The second option can be ruled out quite easily in connection with what Lindholm wrote. He recommended "to negotiate a license", and with GPL code, there's no negotiation: there's a license, and you can take it or you can leave it. If Google had chosen, or decided to choose in the future, the GPL avenue, it would lose the control it currently has over Android. Its proprietary extensions (the Android Market, GMail, Google Talk, Google Maps, Google+ etc. clients) would have to be made available under the GPL as well, due to its "copyleft" (i.e., viral) nature. Not only would the GPL deprive Google of its ability to withhold those goodies from all those who refuse to accept its licensing terms designed to strengthen Google's dominant market position in search and other advertising-financed online services but its device maker partners would also be unhappy: many of them build proprietary extensions on top of Android (such as Samsung's Touchwiz and HTC Sense). It's not even clear whether Android in its current form complies with the GPL, but if Google decided to incorporate Java on a GPL basis, there would be no question about all of Android being subject to copyleft.

Now let's look at the two possibilities that exist in connection with the first option, a commercial license.

Like I said before, commercial licenses come with the requirement of full compatibility with the Java standard. It's possible that what Lindholm meant by "the terms we need" is a special license allowing Google to use Oracle's intellectual property without having to adhere to the standard. It's also possible that he meant, alternatively or additionally, that Google would need special financial terms because it wants to distribute Android free of charge (though in reality it's not free since most of the major Android device makers already pay patent royalties to third parties). At any rate, he meant a commercial license, possibly on non-standard terms, and in his testimony on Thursday he suggested that such a license could come from any of a number of companies offering Java virtual machines.

Without Oracle's consent, third parties can't offer incompatible versions of Java, and this very lawsuit shows just how unwilling Oracle is to accept fragmentation. But any compatible implementation, whether it's provided by Oracle or by a third party, inevitably infringes some of Oracle's intellectual property. There's just too much Oracle/Sun stuff in Java that one could do a so-called "clean room" implementation (which Android, for more than one reason, does not constitute, but that's a different story I'll discuss soon) and navigate around all of Oracle's intellectual property rights.

As the stipulation I reported on earlier today confirms, there is Oracle material in Android. Google may claim that it's not copyrightable, but it claimed this before and lost a summary judgment motion. There are also a couple of patent infringement issues, and we'll get to those in phase 2 of the trial. At any rate, Lindholm's suggestion that his reference to a Java license could have meant any company offering a Java virtual machine is, at best, misleading. Short of Google relinquishing its control over Android by going GPL, any other licensing option would have had to serve the purpose of giving Google the right to use Oracle's intellectual property in Android -- and for an incompatible implementation of Java, which is what Android is in its current form, there would have been no third-party option anyway (nor is there any indication of Oracle being prepared to tolerate fragmentation for more than maybe a transitional period).

In short, Lindholm's denial of his most famous email having referred to any particular licensor comes down to this: Google needed (and still needs) to negotiate a license with Oracle or with Oracle.

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