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Software Wars, Business Strategies and IP Litigation

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Software Wars, Business Strategies and IP Litigation Software Wars, Business Strategies and IP Litigation Immediately after Oracle America filed a patent infringement suit against Google Inc. in August 2010 the trade press labelled this a “software war.” Their interest was a trial featuring Oracle’s “star” counsel David Boies. In mid-January often cited Florian Mueller of NoSoftwarePatents, wrote “Google is patently too weak to protect Android—Google’s cell phone software.”1 (On April 4 Lead bidder Google offered $900 million for Nortel’s 6,000 patents and applications. A decision is expected in June}. By the end of March he had counted 39 patent infringement suits against Google.2 Whether Oracle wins Oracle v Google or not, Oracle and IBM may become losers. It is important that Oracle not alienate the software development community or its customers as it attempts to monetise the assets from the Sun Microsystems—now Oracle America— acquisition. The Oracle v. Google complaint was carefully targeted at Google’s Android software, avoiding the appearance of monetising the Java language and platform itself. The Android software was developed as open source in conjunction with the Open Handset Alliance. Android's mobile operating system is based on a modified version of the Linux kernel, subject to Linux patents. Google published all of the computer code under an Apache Software Foundation License.3 This license is royalty-free and places no restrictions on derivative products or commercial use. Based on IDC market share estimates by the fourth quarter of 2010, Android phones had 39% of the market. An Oracle asset gained through the acquisition of Sun was the OpenOffice open-source software—one of the only remaining substantial “competitors” to Microsoft’s document processing applications. On September 27, 2010 most of the OpenOffice developers left the product and joined the new Document Foundation, headquartered in Munich and Berlin, in Germany, spawning a competitor piece of software called LibreOffice. The Foundation was immediately supported by Google, Red Hat, and Canonical. LibreOffice’s first release was made on January 25, 2011. Oracle’s Larry Ellison had commented Oracle would be providing OpenOffice in the Cloud. Oracle can still do that using either OpenOffice or LibreOffice, but now does not have any control over the LibreOffice product or any of the developers that left OpenOffice project. Moreover, LibreOffice is now covered by European and German, rather than U.S. law. Oracle America also maintains and supports the MySQL database management system; a potential competitor with Oracle’s product. MySQL had always had two versions. One unsupported open source version available at no cost, and another that included technical support and some additional features. Before Sun Microsystems acquired the Swedish firm in 2008, Oracle competitor SAP had donated its own database software to MySQL. SAP’s 27 May 2003 press release said: “Beginning in Q4 2003, SAP DB will be marketed as a MySQL brand. With this cooperation, MySQL AB plans to become a Jim Farmer 1 11 April 2011 Revised 13 April 2011 References added 16 April 2011 recognized global technology partner of SAP AG.” Oracle’s acquisition of MySQL now threatens SAP AG. In early November 2010 the Oracle product sheets showed the InnoDB engine was not included in the royalty free classic version. Oracle’s 10 November 2010 press release said: “The confusion about whether MySQL Community Edition still included InnoDB seems now to have dissipated. Thank you to Sheeri Cabral, Darren Cassar and all of you who helped correct the misperception created by catchy headlines”4 However both the earlier and revised product sheets are available.5 How did IBM become involved? On October 12, 2010 Oracle released a press release titled “Oracle and IBM Collaborate to Accelerate Java Innovation Through OpenJDK,” “Oracle and IBM today announced that the companies will collaborate to allow developers and customers to build and innovate based on existing Java investments and the OpenJDK reference implementation. Specifically, the companies will collaborate in the OpenJDK community to develop the leading open source Java environment.” There was no announcement from IBM. IBM has had a long and productive relationship with open-source communities. In establishing the Apache Foundation 1999, IBM legal staff spent more than a year obtaining agreements with every contributor to Apache’s software to ensure no contributor could claim intellectual property rights to Apache open source products. Their contributor agreements continue to be used in most open-source products. IBM legal staff also prepared the Apache software license. Unlike the GNU Public Licesne [GPL], derivative products can be made without any requirement that changes be made public as required by the GPL. IBM also assisted in finding collaborators contributing to the Apache Foundation. The Apache HTTP Server began as a reference implementation of the HTTP (HyperText Transfer Protocol) specification. The Apache HTTP Server now dominates use in the World Wide Web—60% of Web sites—and is also a major part of many commercial software products. In 2000 IBM helped to organize and sponsored the Open Source Development Laboratories [OSDL] that led Linux development and maintenance. Linus Torvalds was the first OSDL fellow. In 2005 after a merger it became the Linux Foundation. In 2004 IBM helped organize the Eclipse Foundation and donated their Eclipse software product to the Foundation. Eclipse is a software development environment comprising an integrated development environment (IDE) and an extensible plug-in system. It is written mostly in Java and can be used to develop applications in Java. Hundreds of open source and commercial “plug-ins” are available. Eclipse is licensed under the Eclipse Public License. The receiver of EPL-licensed programs can use, modify, copy and distribute the Jim Farmer 2 11 April 2011 Revised 13 April 2011 References added 16 April 2011 work and modified versions, in some cases being obligated to release their own changes.6 Recognizing the complexities of patent litigation, IBM now uses the EPL rather than their more restrictive Common Public License. In 2005 IBM helped organize the Open Invention Network, founded by IBM, Novell, Philips, Red Hat, and Sony. NEC subsequently became a member. OIN is a company that acquires patents and licenses them, royalty free, to entities which, in turn, agree not to assert their own patents against Linux and Linux-related systems and applications. Oracle and Google subsequently joined OIN.7 OIN offers and sponsors free services that eliminate low-quality patents through re- examination. Their “Linux Defenders” program enables and encourages contribution to defensive publications covering inventions that have not previously been patented and solicits prior art contributions to assist patent examiners be aware of the prior art. This continues efforts begun under the OSDL’s Patent Commons Project. In addition to these efforts to support the open-source community, IBM frequently donates software to the open source communities. IBM staff are assigned to develop software in these organizations. (Surveys suggest most contributors to open source are either employed and assigned as developers to these software projects or are faculty and staff at colleges and universities that contribute as a way of advancing knowledge). IBM is a consistent participant in the development of specifications for subsequent standardization. IBM also has strongly support training and education, and college and university research projects. IBM has found both working with the open-source community and developing commercial products and services. It is important for IBM to retain its deserved reputation for its productive relationship with the open-source software communities. But the agreement with Oracle may damage IBM’s reputation in the Java developer community and effect subsequent revenue. Writing in ars technica, Ryan Paul reported: The Harmony project, which is developed by the Apache Software Foundation, offers an open source Java runtime that is distributed under the permissive Apache license. Sun's controversial refusal to provide critical Java compatibility tests under licensing terms that were suitable for the Harmony project created a divisive feud that polarized major Java stakeholders. “Sun's position on the issue conflicted with a policy established in 2006 through the Java Community Process (JCP)—the official Java governance body—which affirmed that the licensing terms of the compatibility tests would not preclude third-party open source implementations. Although Sun was contractually bound by the Java Specification Participation Agreement to follow through with the commitment embodied by that policy, the company failed to do so. Sun wanted Jim Farmer 3 11 April 2011 Revised 13 April 2011 References added 16 April 2011 the test suite license to limit fields of use, a restriction that is unambiguously antithetical to open-source licensing. “Without access to the test suite, the Harmony developers were not able to certify their implementation's conformance with the Java standard, thus creating the risk of fragmentation. Commercial Java adopters who favour permissive licensing were supportive of Harmony, but were unable to compel Sun to provide access to the compatibility tests under appropriate licensing terms.”8 Bob Sutor, IBM's head of Linux and open source, described the reasoning behind IBM’s decision in a very frank blog entry. He wrote: “Prior to acquiring Sun, Oracle was one of several companies that sided with Harmony and called for the test suite to be made available under suitable terms, as stipulated by the JCP policy. Oracle reversed its position, however, after completing its acquisition of Sun. Like Sun, Oracle intends to exercise its control over the test suite licensing in a manner that will drive open source Java adopters towards OpenJDK, the implementation that it controls.” It was unlikely that IBM or the Apache Software Foundation would attempt to enforce the agreement. It is not clear how this will be interpreted by the Java developer community or current users.
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