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(OIN): Oracle Vs. Google Is Its Biggest Debacle So Far

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(OIN): Oracle Vs. Google Is Its Biggest Debacle So Far AUG 21, 2010 The Open Invention Network (OIN): Oracle vs. Google is its biggest debacle so far Right after I learned about Oracle's patent infringement suit against Google, I pointed out [http://fosspatents.blogspot.com/2010/08/oracle-sues-google-says-android.html#oin] that this was "another big failure for the so-called Open Invention Network" (OIN), an organization that claims (without any credible evidence) to protect the Linux ecosystem against patent threats. The OIN has three stated goals, and a few commentators failed to look at all of them: 1. The OIN buys up patents at auctions and licenses them for free to companies who accept its license agreement. This part isn't relevant to Oracle vs. Google. Oracle asserts seven patents that previously belonged to Sun but never belonged to the OIN. 2. The OIN wants to serve as a deterrent because it might enforce those patents against other companies. Mutually assured damage. This isn't stated explicitly on its website but it's made pretty clear by some of its press releases, such as this one [http://www.openinventionnetwork.com/press_release08_10_10.php ] ("'We view an OIN license as one of the key methods through which open source leaders and innovators can deter software patent aggression,' said Lasse Andresen, CEO of ForgeRock."). Oracle sued Google without any fear of the OIN possibly enforcing against Oracle, as an act of retaliation, some of the patents it acquired. So the OIN has certainly failed on this count (until it proves the opposite, but I'm sure we won't see it happen). 3. In the Oracle vs. Google context the most important fact is that the OIN, in addition to the two previous items which relate to patents the OIN itself owns (as 1 From fosspatents.blogspot.com/2010/08/open-invention-network-oin-oracle-vs.html 24 March 2011 a company), also tries to establish a plurilateral (multi-company) cross-license agreement with respect to those companies' patents. The OIN recently announced that by the end of last quarter 140 companies had acceded to its license agreement. What has failed here is primarily this multi-company cross-license agreement. If it worked, it would serve as a Linux-related cross license deal -- a patent peace treaty -- between (among others) Oracle and Google. But everyone can see now that it doesn't. TheRegister quoted me on Oracle vs. Google, and I highlighted the OIN's failure. Well-known FOSS advocates share the concern I was the only vocal critic of the OIN's shortcomings for some time, but the fact that Oracle (one OIN licensee) decided to sue Google (another OIN licensee) over an essential component of Android has led others to also express doubts concerning the OIN's suitability-to-task. Simon Phipps was formerly Sun's chief open source liaison and is now a ForgeRock executive. ForgeRock is one of OIN's 140 licensees. Simon is also a board member of the Open Source Initiative. On Twitter he wrote: "Oracle's move is a huge test for OIN. They need a coherent response when one licensee attacks another over a Linux distro." Bradley Kuhn, a former FSF executive and now the Technical Director of the Software Freedom Law Center (SFLC), pointed out on identi.ca: "OIN claims to be defenders against patent trolls that hurt [FOSS]. What'll it do when its members are the trolls?" While Brad is right to call the OIN into question, his organization's silence about the Oracle/Google situation is conspicuous. They've now had more than a week to take a position. On the SFLC blog, something related to BlackBerry (!) was discussed a week ago. But not a word on Oracle vs. Google. I explained the primary reason here. There's also a conflict of interests. Last year Eben Moglen, the SFLC's leader, declared in a submission to the European Commission that "the funding from Oracle [...] has [not] exceeded 5% of our total funding since SFLC's inception." Then you might add funding from Sun (now owned by Oracle) on top. Presumably it was a lot. Sun was known to be very generous vis-à-vis such entities... Questions concerning the OIN's true agenda The OIN is funded by IBM, Philips, Sony, NEC, Red Hat and Novell, and to a lesser degree, Canonical. When a "cartel" like that suffers a failure of enormous proportions, you can be sure that there will be apologists trying to spin-doctor the event. It's critical for the OIN and its 2 From fosspatents.blogspot.com/2010/08/open-invention-network-oin-oracle-vs.html 24 March 2011 allies to do so. After all, the OIN's inability to do what it claims to be able to do raises questions as to whether there's a hidden agenda concerning those patents. I feel strongly that there is an ulterior motive: the OIN's owners want to disadvantage non-member FOSS companies. They want to equip those whose FOSS programs are covered with a "protected by OIN" selling point, although the Oracle vs. Google situation makes that selling point pretty weak from today's perspective. By not protecting the FOSS projects that are relevant to their competitors, they can try to distort competition. In a worst-case scenario, the six owners could even decide to use the OIN as a patent troll that enforces its patents against the competitors of its owners, especially against FOSS- related ones. Look at the current situation: if Oracle is right, then the seven patents it asserts will read on Dalvik, Google's virtual machine for Android. Dalvik is an important component: Android applications run on it. You can be sure that if Dalvik were a similarly essential part of Red Hat's or Novell's Linux distributions, or if it played an Apache-like strategic role to IBM, it would definitely fall within the OIN's scope of protection. My suggestions would solve the problem for Dalvik The OIN has a completely arbitrary definition of "the Linux System", which is a list of programs to which its whole patent license agreement relates. Apache is on that list, although it's not needed to run Linux (well, it's simply key to IBM). But Dalvik isn't. If Dalvik were on the list, Oracle couldn't sue Google now. But Google is only a licensee, not an OIN member, and therefore has no control over the OIN's definition of "the Linux System". Back in June I made four alternative suggestions for how the OIN could address the problem of the arbitrarily defined "Linux System" and provide a reliable definition or at least a proper process. If you look at those suggestions, you can see that any one of the four could solve the problem for Dalvik. Another way to look at those suggestions is to read them one by one and ask oneself: why doesn't the OIN do any of that if it's sincere? If it really wants to protect the Linux ecosystem, why wouldn't it either use a reliable definition of its scope or otherwise at least put a process in place that it could be proud of? The only plausible answer I can come up with: they aren't sincere. But I'd be happy to see real improvement. I just doubt it. The OIN prides itself on being one of the biggest buyers of patents. It's spent many hundreds of millions of dollars already. The companies funding that operation certainly want to gain a strategic advantage. An unfair one in my opinion because they capitalize on the lack of patent-related expertise on the part of most of those licensee companies. Those licensees are largely companies who don't even have a patent department, nor 3 From fosspatents.blogspot.com/2010/08/open-invention-network-oin-oracle-vs.html 24 March 2011 know much about IP strategies, and they fall for the OIN's line. They are misguided by false hopes. Through their support they make the OIN bigger and more dangerous, not better and trustworthier. The smokescreen they're preparing: Sun wasn't an OIN licensee In a discussion on ZDNet, Ed Burnette [http://www.zdnet.com/tb/1-86968- 1647479?tag=talkback-river;1_86968_1647479] said he talked to "sources close to the organizations [one of which is the OIN]" and that "there's a debate about whether the OIN patent license grants apply to Android or not, given that both Oracle and Google are licensees of OIN (but Sun wasn't)." Ed is right from a journalistic point of view to look into all of the possible aspects and ramifications of this matter, but the fact that Sun wasn't an OIN licensee is irrelevant and just a smokescreen that the OIN and its apologists are trying to create. I will pre-empt them and explain this right here and now. I have analyzed the OIN License Agreement: 1. With only one minor exception, all provisions of the OIN License Agreement are limited to the "Linux System" as defined by the OIN (in the form of a list of program files). Dalvik never was on that list. So all those clauses of the agreement give Oracle total freedom to sue Google over (alleged) patent infringement by Dalvik's code. Note that the term "Linux System" is capitalized throughout the agreement. That means it can be understood only as defined by the agreement, not by common sense. 2. The one minor exception is Section 3.3. It refers to "products that perform substantially the same function as the Linux System".
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