VIRTUAL REALITIES Software wars, business strategies and IP litigation Jim Farmer of immagic enters the battle field of software litigation and looks at defence tactics mmediately after Oracle America filed a Oracle would be providing OpenOffice in the existing Java investments and the patent infringement suit against Google Cloud software. Oracle can still do that using OpenJDK reference implementation. Inc in August 2010 the trade press labelled either OpenOffice or LibreOffice, but now Specifically, the companies will this a “software war”. Their interest was does not have any control over the LibreOffice collaborate in the OpenJDK a trial featuring Oracle’s “star” counsel product or any of the developers that left the community to develop the leading IDavid Boies. In mid-January Florian Mueller of OpenOffice project. Moreover, LibreOffice is open source Java environment.” NoSoftwarePatents, wrote “Google is patently now covered by European and German, rather too weak to protect Android – Google’s cell than US, law. There was no announcement from IBM. phone software.”1 By the end of March he had Oracle America also maintains and supports IBM has had a long and productive counted 39 patent infringement suits against the MySQL database management system; relationship with open-source communities. In Google2. Whether Oracle wins Oracle v Google a potential competitor with Oracle’s product. establishing the Apache Foundation 1999, IBM or not, Oracle and IBM may become losers. MySQL had always had two versions – one legal staff spent more than a year obtaining It is important that Oracle does not alienate unsupported open-source version available at agreements with every contributor to Apache’s the software development community or its no cost, and another that included technical software to ensure no contributor could claim customers as it attempts to monetise the assets support and some additional features. Before intellectual property rights to Apache open- from the Sun Microsystems – now Oracle America Sun Microsystems acquired the Swedish firm source products. Their contributor agreements – acquisition. The Oracle v Google complaint was in 2008, Oracle competitor SAP had donated continue to be used in most open-source carefully targeted at Google’s Android software, its own database software to MySQL. SAP’s products. IBM legal staff also prepared the avoiding the appearance of monetising the Java May 2003 press release said, “Beginning in Q4 Apache software licence. Unlike the GNU Public language and platform itself. 2003, SAP DB will be marketed as a MySQL Licence [GPL], derivative products can be made The Android software was developed as open brand. With this cooperation, MySQL AB plans without any requirement that changes be source in conjunction with the Open Handset to become a recognized global technology made public as required by the GPL. IBM also Alliance. Android’s mobile operating system is partner of SAP AG.” Oracle’s acquisition of assisted in finding collaborators contributing based on a modified version of the Linux kernel, MySQL now threatens SAP AG. to the Apache Foundation. The Apache HTTP subject to Linux patents. Google published all of In early November 2010, the Oracle Server began as a reference implementation the computer codes under an Apache Software product sheets showed the InnoDB of the HTTP (HyperText Transfer Protocol) Foundation Licence3. This licence is royalty-free engine was not included in the royalty specification. The Apache HTTP Server now and places no restrictions on derivative products free classic version. Oracle’s November dominates use in the worldwide web – 60% or commercial use. Based on IDC market share 2010 press release said, “The confusion of websites – and is also a major part of many estimates by the fourth quarter of 2010, Android about whether MySQL Community Edition commercial software products. phones had 39% of the market. still included InnoDB seems now to have In 2000 IBM helped to organise and An Oracle asset gained through the dissipated. Thank you to Sheeri Cabral, sponsored the Open Source Development acquisition of Sun was the OpenOffice open- Darren Cassar and all of you who helped Laboratories [OSDL] that led Linux development source software – one of the only remaining correct the misperception created by catchy and maintenance. Linus Torvalds was the first substantial “competitors” to Microsoft’s headlines”.4 However both the earlier and OSDL fellow. In 2005 after a merger it became document processing applications. On 27 revised product sheets are available5. the Linux Foundation. September 2010, most of the OpenOffice In 2004, IBM helped organise the Eclipse developers left the product and joined the How did IBM become involved? Foundation and donated its Eclipse software new Document Foundation, headquartered On 11 October 2010 Oracle, in a press product to the foundation. Eclipse is a software in Munich and Berlin, in Germany, release titled “Oracle and IBM Collaborate development environment comprising an spawning a competitor piece of software to Accelerate Java Innovation Through integrated development environment (IDE) called LibreOffice. The Foundation was OpenJDK said,” and an extensible plug-in system. It is written immediately supported by Google, Red Hat, “Oracle and IBM today announced mostly in Java and can be used to develop and Canonical. LibreOffice’s first release was that the companies will collaborate applications in Java. Hundreds of open source made on 25 January 2011. to allow developers and customers and commercial “plug-ins” are available. Oracle’s Larry Ellison had commented to build and innovate based on Eclipse is licensed under the Eclipse Public 16 Intellectual Property magazine May 2011 www.intellectualpropertymagazine.com Licence. The receiver of EPL-licensed programs the permissive Apache licence. Sun’s SE TCK, available to Apache. We can use, modify, copy and distribute the work controversial refusal to provide critical disagreed with this choice, but it was and modified versions, in some cases being Java compatibility tests under licensing not ours to make. So rather than obligated to release their own changes6. terms that were suitable for the continue to drive Harmony as an Recognising the complexities of patent Harmony project created a divisive feud unofficial and uncertified Java effort, litigation, IBM now uses the EPL rather than that polarized major Java stakeholders. we decided to shift direction and their more restrictive Common Public Licence. put our efforts into OpenJDK. Our In 2005 IBM helped organise the Open “Sun’s position on the issue conflicted involvement will not be casual as we Invention Network (OIN), founded by IBM, with a policy established in 2006 plan to hold leadership positions.”9 Novell, Philips, Red Hat, and Sony. NEC through the Java Community Process subsequently became a member. OIN is a (JCP) – the official Java governance It was unlikely that IBM or the Apache Software company that acquires patents and licenses body – which affirmed that the Foundation would attempt to enforce the them, royalty free, to entities which, in licensing terms of the compatibility agreement. It is not clear how this will be turn, agree not to assert their own patents tests would not preclude third- interpreted by the Java developer community against Linux and Linux-related systems and party open source implementations. or current users. applications. Oracle and Google subsequently Although Sun was contractually bound Sutor’s public comment was unusually joined OIN7. strong. More than likely, IBM’s action OIN offers and sponsors free “IBM legal staff spent more than will be interpreted, however unfair, as services that eliminate low-quality weakness even though it is a rational patents through re-examination. a year obtaining agreements business choice. Their “linux defenders” programme with every contributor to enables and encourages contribution Does this matter? to defensive publications covering Apache’s software to ensure In 2007, the Harvard Business Review inventions that have not previously no contributor could claim included London-based Karen Fraser’s been patented and solicits prior “Conflicted Consumers” as one of the art contributions to assist patent intellectual property rights to “Breakthrough Ideas.”10 She wrote, examiners. This continued effort “Your data indicate strong begun under the OSDL’s patent Apache open source products.” customer satisfaction: Repeat commons project. purchase levels are high, and In addition to these efforts to support by the Java Specification Participation many customers have been with you the open-source community, IBM frequently Agreement to follow through with for years. Good news, right? Well, donates software to the open source the commitment embodied by that appearances can be deceptive. communities. IBM staff are assigned to develop policy, the company failed to do so. software in these organisations. (Surveys Sun wanted the test suite licence to “There may well lie buried in suggest most contributors to open source are limit fields of use, a restriction that is these data a “stealth” segment of either employed and assigned as developers to unambiguously antithetical to open- apparently loyal customers who have these software projects or are faculty and staff source licensing. ethical concerns about your company at colleges and universities that contribute as a and are poised to switch as soon as a way of advancing knowledge). “Without access to the