decoration decoration
Stories

GROKLAW
When you want to know more...
decoration
For layout only
Home
Archives
Site Map
Search
About Groklaw
Awards
Legal Research
Timelines
ApplevSamsung
ApplevSamsung p.2
ArchiveExplorer
Autozone
Bilski
Cases
Cast: Lawyers
Comes v. MS
Contracts/Documents
Courts
DRM
Gordon v MS
GPL
Grokdoc
HTML How To
IPI v RH
IV v. Google
Legal Docs
Lodsys
MS Litigations
MSvB&N
News Picks
Novell v. MS
Novell-MS Deal
ODF/OOXML
OOXML Appeals
OraclevGoogle
Patents
ProjectMonterey
Psystar
Quote Database
Red Hat v SCO
Salus Book
SCEA v Hotz
SCO Appeals
SCO Bankruptcy
SCO Financials
SCO Overview
SCO v IBM
SCO v Novell
SCO:Soup2Nuts
SCOsource
Sean Daly
Software Patents
Switch to Linux
Transcripts
Unix Books
Your contributions keep Groklaw going.
To donate to Groklaw 2.0:

Groklaw Gear

Click here to send an email to the editor of this weblog.


Contact PJ

Click here to email PJ. You won't find me on Facebook Donate Paypal


User Functions

Username:

Password:

Don't have an account yet? Sign up as a New User

No Legal Advice

The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

Here's Groklaw's comments policy.


What's New

STORIES
No new stories

COMMENTS last 48 hrs
No new comments


Sponsors

Hosting:
hosted by ibiblio

On servers donated to ibiblio by AMD.

Webmaster
Oracle v. Google - Look What The Cat Dragged In (to Oracle)
Thursday, August 11 2011 @ 09:00 AM EDT

Okay, first things first. What does the expression "Look what the cat dragged in" mean in this context. Well, any cat owner (guilty) will tell you that outdoor cats (not guilty) will gladly catch, kill and deposit all sorts of formerly living creatures on their owner's doorstep. This can be a disgusting practice, but one you learn to live with if you have an outdoor cat. The expression is meant to convey an unhappy surprise.

In this instance the unhappy surprise is for Oracle and the missing Sun website. One of our readers (Keith) has been busy on Wayback seeing what he could find, and he has come up with quite a collection. We are not suggesting that all of these apply in the immediate case, but it is interesting to see the mixed message of Sun (pre-Oracle) and Oracle America (formerly Sun).

Sun's Press Release for Opening Java
(11/13/2006)http://web.archive.org/web/ 20080515151929/http:/www.sun.com/2006-1113/ feature/story.jsp:

"GNU/Linux distributors can add no-cost Java implementations to their distributions, while customers with stringent open-source requirements can deploy a free, reliable Java software stack on most GNU/Linux distributions."(emphasis added)

Here is an amazing blog post by Greg Papadopoulous (Sun's Chief Technology Officer)
http://web.archive.org/web/ 20080430075650/http:/blogs.sun.com/ gregp/entry/ are_software_patents_useful
in which he advocates for software patent reform and remarks that Sun would only use their own patents defensively. He also praises Richard Stallman and Larry Lessig. Since Java is released under the CDDL, take a look at this:

"Some of the most effective of these are "patent peace" grants, such as what >> we have done with CDDL: you get a grant to our patents as long as you follow the copyright license, including that you won't prosecute for any patents that you might have."

This passage is directly from his post as well (no emphasis added). Since Java is licensed similarly, I (Keith) assume this relates to Java as well as ZFS:

"Certainly, we (at Sun) feel like we have put some serious coin into developing things like ZFS and dtrace, which we have published under a FOSS (Free and Open-Source Software) license (CDDL for now), and for which we have applied for patents. We will *never* (yes, I said *never*) sue anyone who uses our ZFS codebase and follows the terms of the license: they publish their improvements, propagate the license, and not sue anyone else who uses the ZFS codebase. And look at the innovation not only with ZFS in OpenSolaris, but its adoption by Mac OS X and BSD.

But under what conditions would we enforce our patents? How would we feel if someone did a cleanroom version of ZFS and kept the resulting code proprietary?

We wouldn't feel good, to be sure. But I'd put the burden back on us (certainly as a large company) that if such a thing were to happen it was because we were failing to *continue to* innovate around our original code. Being sanguine about patent protection as an exclusive right would result in less innovation, not more.

Our licensing of our Java implementations under GPLv2 are a case-in-point. The early returns are that we are seeing renewed interest and vitality in the platform and a real acceleration of innovation --- both from us as well as others."

Here is another blog post by Greg Papadopoulous, where he explicitly states that states that the CDDL (which again, I (Kieth) believe Java is licensed under) will never be considered infringement either by copyright or patent.
http:// web.archive.org/ web/20080312184510/http://blogs.sun.com/ Gregp/ entry/my_views_on_open_source:

"Open software is fundamentally about developer freedom. We want developers to freely use any of the OpenSolaris code that we developed for their purposes without any fear of IP infringement of Sun: either patent or copyright.

We chose a license -- CDDL , an improvement of MPL -- that clearly and explicitly gives that freedom.

In fact, the license is MORE liberal in its IP license than even GPL, because it gives a clear patent license and doesn't demand the same viral propagation...

. . .

What have we done? We have given away enormous intellectual property rights (the code and about 1600 patents that might read upon it) to any developer who wishes to use our code. The only thing we ask in exchange --- as is the only thing that Stallman and Torvalds and every other open source developer have asked in exchange --- is that you honor the license. Period."

Here is a blog post from Mike Dillon (Legal Counsel for Sun), in which he specifies that Sun's patents would only be used defensively, and in the defense of others
http://web.archive.org/web/ 20080908120311/http://blogs.sun.com/ dillon/entry/ the_patent_arms_race#comments:

"Unlike some companies, we don't have a corporate goal for revenue derived from patents (and patent litigation). Instead, we invest in patents to support our customers and the communities in which we participate. This support can be in the form of a defensive response to an attack on a community or in the form of the assurance provided by the patent licensing provisions of the CDDL or GPLv3. In the end, it's about delivering innovation to our customers and communities."
If you are interested in looking for more such examples, consider the following:

Sun Company Blogs

http://web.archive.org/ web/20080416013436/http:/www.sun.com/ aboutsun/ media/blogs/index.jsp

Sun's Java page

http://web.archive.org/ web/20080517091130/http://www.sun.com/ opensource/java


  


Oracle v. Google - Look What The Cat Dragged In (to Oracle) | 252 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corections here!
Authored by: fredex on Thursday, August 11 2011 @ 09:21 AM EDT
bring'm on!

[ Reply to This | # ]

Actually, the cat is giving you a gift!
Authored by: sirwired on Thursday, August 11 2011 @ 09:23 AM EDT
Actually, when an outdoor cat deposits a small creature on your doorstep, it's
giving you a gift. (It uses poop or urine for displeasure.)

Why? To answer this question, you must remember that cats largely
"self-domesticated" themselves into a symbiotic relationship with
humans. (Unlike dogs, which where bred into docility, subservience, and
obedience. Obviously docility, subservience and obedience never happened with
cats, which any cat owner can tell you.)

Cats originally started hanging around humans because their dwellings and farms
were rich sources of concentrated food stashes (i.e pantries, granaries, root
cellars, etc.) Concentrated food stashes attract varmits (birds and rodents.)
Cats "discovered" that if they proved themselves useful around farms
and houses, they would get fed and sheltered when prey was not in abundance,
kittens were protected, etc. (This kind of evolution could be termed
"self-selection"... domestic cats haven't displace wild ones, but did
multiply more due explicitly to humans letting them do so.) Your cat, when it
drops off a mouse or bird that it wasn't hungry enough to eat, is telling you
that it is a useful cat and therefore should be taken care of when the current
varmit infestation is extinguished.

[ Reply to This | # ]

And then they got bought...
Authored by: Anonymous on Thursday, August 11 2011 @ 09:24 AM EDT
I think this is a clear indication of why we *can't* trust words like that from
companies.

[ Reply to This | # ]

Oracle v. Google - Look What The Cat Dragged In (to Oracle)
Authored by: belzecue on Thursday, August 11 2011 @ 09:44 AM EDT
www.sun.com currently has no robots.txt file. I guess
because it redirects to oracle.com.

http://www.oracle.com/robots.txt is large and thorough, but
currently has no exclusion for Wayback Machine. If it did,
it would look like this:

User-agent: ia_archiver
Disallow: /

And anything currently archived on Wayback Machine would go
poof. (They retrospectively respect robots.txt directives.)

So what's the bet we soon see a non-redirecting
www.sun.com/robots.txt containing the sole disallow shown
above?

Spoilation of evidence?

Oracle's current presence on Wayback Machine is broad:
http://wayback.archive.org/web/*/http://www.oracle.com/

[ Reply to This | # ]

Off Topic goes here
Authored by: sgtrock on Thursday, August 11 2011 @ 09:47 AM EDT
Don't forget links if you've got 'em.

[ Reply to This | # ]

Newspicks go here. Don't forget titles!
Authored by: sgtrock on Thursday, August 11 2011 @ 09:48 AM EDT
And links, too, please.

[ Reply to This | # ]

Phrases and Cats
Authored by: Yobgod on Thursday, August 11 2011 @ 11:24 AM EDT

Oddly, I've never heard the phrase "look what the cat dragged in" used to refer to an unpleasant surprise.

The usage I'm familiar with addresses it to a person who has just shown up looking particularly dishevelled, beat up and/or hung over, implying that their appearance is similar to that of a small mangled corpse. "You look like death warmed over" is used similarly.

Here's a Reference that supports this as the common usage.

[ Reply to This | # ]

Revising History... and the InterNyet
Authored by: Anonymous on Thursday, August 11 2011 @ 12:02 PM EDT
One of the things I expect within the next couple of days
will be a set of DMCA takedown notices against the "WayBack"
machine by Oracular Sun in order to revise history.

I sometimes think that it may be *important* to keep control
of historical materials out of the hands of those who have a
profit motive to revise them... or we'll have an InterNyet
instead.

[ Reply to This | # ]

Seeing Wayback ...
Authored by: Anonymous on Thursday, August 11 2011 @ 12:37 PM EDT
Sun Java Desktop, Sep 2003

"Australian telco Telstra will be one of the first major customers to roll with Sun's Mad Hatter Linux desktop, according to a report in The Australian"

'Here, you have a choice between one that's "open, runs on every OS," i.e. Java Web Services, or one that isn't and doesn't, i.e. .NET`, Scott McNealy July 2003

[ Reply to This | # ]

  • yanked... - Authored by: Anonymous on Thursday, August 11 2011 @ 12:47 PM EDT
It's google, they can do way back
Authored by: Anonymous on Thursday, August 11 2011 @ 12:57 PM EDT
I think if any corporation can do the wayback web stuff it would be google.

Step 1: ask Oracle to produce it all.
Step 2: see what Oracle brings in
Step 3: dump all the stuff google has in the meantime aligning it with stuff
Oracle produced in Step 2.
Step 4: ask Oracle to verify/refute the stuff google added
Step 5: show the lack of documentation Oracle has produced
Step 6: attempt to link the lack of documentation to a direct change of position
by Oracle and an attempt to erase the record

[ Reply to This | # ]

Oracle v. Google - Look What The Cat Dragged In (to Oracle)
Authored by: Anonymous on Thursday, August 11 2011 @ 01:18 PM EDT
No wonder Oracle is having trouble reproducing the old web sites. They haven't
figured out how to clean them up nor how to use the fifth amendment to avoid
having to give Google all of this incriminating detail.

[ Reply to This | # ]

Not completely inconsistent
Authored by: Anonymous on Thursday, August 11 2011 @ 05:41 PM EDT

While it's clear that the sentiment expressed by early Sun comments about patents seems inconsistent with current Oracle actions, the underlying words are not completely irreconcilable.

Sun wanted to promote the adoption of Java, and saw open sourcing the code and granting explicit patent grants as a means to accomplish this goal. But they were also protective about maintaining the integrity of Java, illustrated by their going after Microsoft over attempts to extend MS versions of Java with incompatible features. The goal wasn't to make the technology free and open just for its own sake, but to promote Java and Sun's vision for Java in particular.

Even in the passages quoted in the main article, there is an emphasis on obeying the license terms set by Sun.

"Some of the most effective of these are "patent peace" grants, such as what >> we have done with CDDL: you get a grant to our patents as long as you follow the copyright license, including that you won't prosecute for any patents that you might have."
We will *never* (yes, I said *never*) sue anyone who uses our ZFS codebase and follows the terms of the license: they publish their improvements, propagate the license, and not sue anyone else who uses the ZFS codebase.

Concerning the CDDL, it's worthwhile to note that the patent grant was limited to code that was provided under the license. Any modifications to the code would not necessarily be covered under the patent grants.

2.1. The Initial Developer Grant.

Conditioned upon Your compliance with Section 3.1 below and subject to third party intellectual property claims, the Initial Developer hereby grants You a world-wide, royalty-free, non-exclusive license:

(a) under intellectual property rights (other than patent or trademark) Licensable by Initial Developer, to use, reproduce, modify, display, perform, sublicense and distribute the Original Software (or portions thereof), with or without Modifications, and/or as part of a Larger Work; and

(b) under Patent Claims infringed by the making, using or selling of Original Software, to make, have made, use, practice, sell, and offer for sale, and/or otherwise dispose of the Original Software (or portions thereof).

(c) The licenses granted in Sections 2.1(a) and (b) are effective on the date Initial Developer first distributes or otherwise makes the Original Software available to a third party under the terms of this License.

(d) Notwithstanding Section 2.1(b) above, no patent license is granted: (1) for code that You delete from the Original Software, or (2) for infringements caused by: (i) the modification of the Original Software, or (ii) the combination of the Original Software with other software or devices.

2.2. Contributor Grant.

Conditioned upon Your compliance with Section 3.1 below and subject to third party intellectual property claims, each Contributor hereby grants You a world-wide, royalty-free, non-exclusive license:

(a) under intellectual property rights (other than patent or trademark) Licensable by Contributor to use, reproduce, modify, display, perform, sublicense and distribute the Modifications created by such Contributor (or portions thereof), either on an unmodified basis, with other Modifications, as Covered Software and/or as part of a Larger Work; and

(b) under Patent Claims infringed by the making, using, or selling of Modifications made by that Contributor either alone and/or in combination with its Contributor Version (or portions of such combination), to make, use, sell, offer for sale, have made, and/or otherwise dispose of: (1) Modifications made by that Contributor (or portions thereof); and (2) the combination of Modifications made by that Contributor with its Contributor Version (or portions of such combination).

(c) The licenses granted in Sections 2.2(a) and 2.2(b) are effective on the date Contributor first distributes or otherwise makes the Modifications available to a third party.

(d) Notwithstanding Section 2.2(b) above, no patent license is granted: (1) for any code that Contributor has deleted from the Contributor Version; (2) for infringements caused by: (i) third party modifications of Contributor Version, or (ii) the combination of Modifications made by that Contributor with other software (except as part of the Contributor Version) or other devices; or (3) under Patent Claims infringed by Covered Software in the absence of Modifications made by that Contributor.

Google never adopted any of the licenses from Sun for Java. They never claimed to be part of the Java community. They don't claim that Android is derived from Java. So Sun's earlier statements about supporting Java and the Java community don't seem to really apply to Google in this case.

Keep in mind that despite all the nice words from Sun about openness and freedom for Java, Sun always made sure they kept a certain degree of control over the whole show. Their grants of rights always contained some fine print that limited them in ways that prevented others from simply going off and doing whatever they wanted. A clear example was the Apache Harmony project being stalled when Sun refused to license the (practically) required Java Compatibility Kit unless Harmony agreed to specific restrictions on fields of use for the project outputs that Sun demanded. From the brief glimpses we've been given into the negotiations between Google and Sun over incorporating Java into Android, it seems to me that the main sticking point wasn't financial, but it was the degree of control that Sun wanted to keep over the form that Java might take in Google's hands. Sun likely didn't want an Android Java to be markedly different from other official Java implementations to avoid fragmenting the Java community, while Google likely wanted maximum freedom to mold Java into the kind of application development platform that worked best on their concept for mobile computing.

Oracle coming in and taking over Java seemed to shift corporate emphasis even more to the side of wanting to maintain tighter control over the Java ecosystem, but it wasn't a completely radical departure from earlier Sun behavior. Anyway, whenever there's a major change in management, then expectations about a company have to be adjusted accordingly. Sometimes those adjustments are severe, such as the transition of HP from the days when Bill Hewlett and Dave Packard ran the company to what HP eventually became under Carly Fiorina, for example.

--bystander1313

[ Reply to This | # ]

Orthogonal Thinking
Authored by: sproggit on Thursday, August 11 2011 @ 06:30 PM EDT
I hope you'll forgive me for not putting this under "Off Topic" - I
hope you'll think this relevant.

I got to wondering about the cost to business of all the patent litigation that
has been fought in the US since the USPTO first accepted a patent application
for a software patent. I am specifically excluding any damages awards, voluntary
license fees paid and so on. I am thinking exclusively of the expense
associated.

I think overheads potentially break down into a number of categories. Please let
me know if I missed any:-

1. For filing patent applications, or buying portfolios
2. Legal fees for patent disputes that go to court
3. Costs researching potential infringers of held patents

These expenses quickly add up and they are not inconsiderable. This interests me
because the companies who prosecute patent infringement claims clearly believe
that they get an overall financial benefit from doing so. Sums of money running
into billions of dollars are changing hands for patent collections.

In commercial software development (a lucrative market given the very low costs
of scaling a business) these expenses run into billions of dollars.

Sad but true: the only way that the world is going to step back from the madness
will be if the major players in the software patent arena believe that the costs
outweigh the benefits. Change will not come from an epiphany in the legislature,
or a policy shift at the USPTO. Change will not come from a change of government
or the election of a new President.

So what - if anything - is going to bring about a seismic shift that will
persuade the likes of IBM, Microsoft, Apple, RIM, Nokia, Samsung, et al, that
software patents are a bad idea?

Whilst there are a number of potential events, there is potentially only one of
sufficient magnitude to deliver the desire effect. It's going to be necessary
for a major trading partner of the US to refuse to acknowledge software patents.
That partner could be the European Union or China, as examples. Should this
happen, we could likely see a shift of software development and innovation away
from the US into any other regulatory framework that did not back software
patents. If this were to happen, it would create a potential environment in
which software innovation could take place, free from those constraints. That
market would have the potential to innovate more freely, to foster new ideas and
paradigms and let them grow. If such an environment were to come into being,
there is every chance that it's innovation would eclipse the US software
industry, rendering the major US players irrelevant.

Companies in the US - and therefore the US Government (who take a lot of
lobbying money - ahem) - are not going to like the idea of this, for the simple
reason that if the US can impose it's view of software patents on the wider
world, then the US companies with huge software patent portfolios can dominate
software development worldwide.

What avenues do US agencies have to influence this?

Well, the obvious ones would be the World Trade Association and the World Bank.
It's going to be relatively easy to encourage a country to sign on to software
patents in return for overseas aid, or a World Bank loan...

It's an interesting conundrum.

Bottom line, uncomfortable as it may be, is this: if the European Union or
China, or India, or Brazil, or Japan, want to retain their domestic software
development industries, the safest thing that they can do, right now, is to
actively work against software patents. This may be counter-intuitive to many
people in those countries, particularly the legislators.

Thing is, if they don't, it's too late. US companies have already staked claims
on so many of the high level principles of software development that it would be
practically impossible for any newcomer to wriggle past existing claims and get
to a piece of truly innovative software development. The existing software
patent portfolio in the US alone is more than sufficient to stifle any new
innovation in the industry.

A mechanism that was intended to foster innovation - the patent - has been
corrupted so completely that it has now become the tool of choice to block and
smother that innovation. How very sad.

[ Reply to This | # ]

Something else Google can "learn" from Sun
Authored by: Anonymous on Thursday, August 11 2011 @ 11:47 PM EDT

From the first blog:

We paid almost $100M to Kodak to immunize the entire Java community from infringement claims on mechanisms that Kodak themselves don't use --- they acquired the patents from a third party. This was pure insanity, but we felt like we had to pay this in order to indemnify the whole Java community.)
If Google has no compunctions being "inspired" by Java without a license from Sun, the least they could also be inspired by is doing the same things Sun did to indemnify the developers using their platform.

BTW bystander1313 nails all the relevant points, as usual.

[ Reply to This | # ]

Oracle v. Google - Look What The Cat Dragged In (to Oracle)
Authored by: Anonymous on Friday, August 12 2011 @ 05:40 AM EDT
Spoliation of evidence.

I wonder if Google can get Oracle nailed for "shredding"
these prejudicial comments by Sun on the eve of trial.

I suspect Oracle nuked the site on purpose in an attempt to
dodge promissory estoppel.

[ Reply to This | # ]

Groklaw © Copyright 2003-2013 Pamela Jones.
All trademarks and copyrights on this page are owned by their respective owners.
Comments are owned by the individual posters.

PJ's articles are licensed under a Creative Commons License. ( Details )