September 10, 2011

Oracle v. Google - An interesting case for open source licensing issues

Oracle filed a wilful infringement case against Google for developing android. Oracle claims that following patents had been infringed by Google:
6,125,447 - Protection Domains to Provide Security In A Computer System
6,192,476 - Controlling Access to A Resource
5,966,702 - Method And Apparatus For Pre-processing And Packaging Class Files
7,426,720 - System and Method For Dynamic Preloading Of Classes Through Memory Space Cloning Of A Master Runtime System Process
RE38,104 - Method And Apparatus For Resolving Data References In Generate Code
(A reissued patent; the original number was 5,367,685)
6,910,205 - Interpreting Functions Utilizing a Hybrid Of Virtual And Native Machine Instructions
6,061,520 - Method and System for Performing Static Initialization
All these patents related to Java platform which were previously held by Sun Microsystems were assigned to Oracle after Oracle took over Sun Microsystems in 2010. Oracle America, subsidiary of Oracle previously Sun, owns copyrights in the code, documentation, specifications, libraries, and other materials that comprise the Java platform. Oracle America’s Java-related copyrights are registered with the United States Copyright Office.

Google’s Android competes with Java as an operating system software platform for cellular telephones and other mobile devices. The Android operating system software “stack” consists of Java applications running on a Java-based object-oriented application framework, and core libraries running on a “Dalvik” virtual machine (VM) that features just-in-time (JIT) compilation.

Oracle has taken a plea that Google has actively, and voluntarily distributed Android and related applications, devices, platforms, and services with the expectation that they will be purchased, used, or licensed by consumers in the Northern District of California. Also without consent, authorization, approval, or license, Google knowingly, willingly and unlawfully copied, prepared, published and distributed Oracle America’s copyrighted work,
portions thereof, or derivative works and continues to do so. Google’s Android infringes Oracle America’s copyrights in Java and Google is not licensed to do so.

In this case, Google instead of making derivates of OpenJDK or using OpenJDK, has reimplemented it. So pertinent question here is that if I reimplement patented software which is distributed freely by way of GPL v2, can I bring a suit of patent infringement and copyright protection?

Issues in the case as per my understanding:

1. Can Google be made liable of patent infringement when Google has not copied or even made a derivative of source code of Oracle which is protected under GPL v.2 license?
Problem: Google has reimplemented the source code instead of reusing or making derivative of source code of Oracle. Google has used Apache Harmony source instead of OpenJDK source, which does not have an implied patent license from Oracle. The patent license granted by OpenJDK only covers OpenJDK derivative works, not reimplementations. So pertinent point is can Oracle still claim patent infringement case against Google when GPL v2 states about an implied patent licence? On the first instance Can Oracle enforce his patent rights on source code when it is available under GPL license v.2?

2. Can copyright infringement case be brought against Google?
Problem: As Google has made its Dalvik, virtual machine, licensed under Apache License v2 and not GPL. Therefore it is not bound by GPL. So if Dalvik is derivative of OpenJDK then Google may be even violating GPL. Going into this deeper, a look into definition of derivative work from US copyright act-
“derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications, which, as a whole, represent an original work of authorship, is a “derivative work”

As per this definition, Google is safe from this perspective as well as Dalvik cannot be termed as derivative of JIT. A reimplemented version of software cannot be termed as derivative. If it’s a derivative work, then of course GPL comes into picture as derivative of OpenJDK should be protected by GPL and not Apache License.

Although the case is still in mediation stage, but I can say that Google is safe from claims of Oracle as far as copyright infringement is concerned but question still remains for patent infringement in this complex situation of patent rights v. Open source licensing(for Oracle).
A much awaited decision to clarify Open source licensing issues.

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