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Oracle Gets Specific -- Files Amended Complaint - Updated 4Xs: And More, More, More: Oracles Answers Google's CC
Thursday, October 28 2010 @ 12:07 PM EDT

Oracle has filed an amended complaint, presumably to fix the problems noted by Google in the first one. It has clarified its copyright infringement claims, Claim VIII.

It's SCO II, at least in part, alleging that the infringed material is "Java method and class names, definitions, organization, and parameters; the structure, organization and content of Java class libraries; and the content and organization of Java’s documentation." Don't tell me it's APIs and methods and concepts again. And infringing the "organization" of Java documentation? Lordy.

I've done a comparative chart for you of the copyright infringement claim in both the original complaint and the new one, so you can see the changes, but here is the new operative paragraph in full, paragraph 40 of the new complaint:

Android includes infringing class libraries and documentation. Approximately one third of Android’s Application Programmer Interface (API) packages (available at http://developer.android.com/reference/packages.html) are derivative of Oracle America’s 19 copyrighted Java API packages (available at http://download-llnw.oracle.com/javase/ 1.5.0/- 20 docs/api/ and http://download-llnw.oracle.com/ javase/1.4.2/docs/api/) and corresponding documents. The infringed elements of Oracle America’s copyrighted work include Java method and class names, definitions, organization, and parameters; the structure, organization and content of Java class libraries; and the content and organization of Java’s documentation. Examples of this copying are illustrated in Exhibit I to this complaint. In at least several instances, Android computer program code also was directly copied from copyrighted Oracle America code. For example, as may be readily seen in Exhibit J, the source code in Android’s “PolicyNodeImpl.java” class is nearly identical to “PolicyNodeImpl.java” in Oracle America’s Java, not just in name, but in the source code on a line-for-line basis.
So some claim of line by line copying also.

[ Update 2: However, note that, as Google has already pointed out, Sun released code under the GPL, not that Google says it used it. But if it had, as you can see, Sun released PolicyNodeImpl.java under the GPLv2 with classpath exception. So what in the world is Oracle thinking? Also, it's not Harmony either, as the Apache guys are pointing out: "Even though the code in question has an Apache license, it is not part of Harmony. PolicyNodeImpl.java is simply not a Harmony class." I'm puzzled how GPLv2 code ended up with an Apache license, but I can't explain that yet. We have a comment saying that it's not code that is distributed with phones, in any case. It's for testing units. Here it is if you want to look at it. Here's what I think happened overall. The same thing that happened in the SCO saga. When lawyers don't grok the tech, they make bizarre claims that they then can't prove, and so they fail.]

If you recall, Google pointed out that Exhibit H, the copyright registrations, made no sense, writing in its Answer:

As to Oracle's copyright claim, the Complaint alleges that "Oracle America owns copyrights in the code, documentation, specifications, libraries, and other materials that comprise the Java platform" and that "Oracle America's Java-related copyrights are registered with the United States Copyright Office, including those attached as Exhibit H." Compl. ¶ 11. Exhibit H to the Complaint consists of certificates of copyright registrations obtained by Sun for two identified works, named "Java 2 Standard Edition 1.4" and "Java Standard Edition, Version 5.0" (the "Asserted Copyrights"). Compl. Ex. H. These registrations appear to relate to versions of certain Sun Java materials that were released as open-sourced software in 2006 and 2007.
Oracle has not changed that exhibit that I could see. So I'm guessing that means Oracle is going to say it's open sourced but only for the desktop. Field of use. Plus Java documentation, as you can see on this page, isn't redistributable. Conclusion? All the complaints that were directed at Sun were right. And now it's clear that using any proprietary anything is reckless. And that includes dual licensed code, because some donkey might buy it someday, and then where will you be? Stick to pure FOSS, where folks don't treat you like this.

Here it all is:

10/27/2010 - 36 - AMENDED COMPLAINT for patent and copyright infringement against Google Inc.. Filed byOracle America, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Peters, Marc) (Filed on 10/27/2010) (Entered: 10/27/2010)

10/27/2010 - 37 - ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options Oracle America ADR Certification by Party and Counsel (Ballinger, Richard) (Filed on 10/27/2010) (Entered: 10/27/2010)

And here is the chart:

# First Oracle Complaint Amended Oracle Complaint
37. Oracle America hereby restates and realleges the allegations set forth in paragraphs 1 through 15 above and incorporates them by reference. Oracle America hereby restates and realleges the allegations set forth in paragraphs 10 1 through 15 above and incorporates them by reference.
38. The Java platform contains a substantial amount of original material (including without limitation code, specifications, documentation and other materials) that is copyrightable subject matter under the Copyright Act, 17 U.S.C. § 101 et seq. As noted in paragraph 11 above, Oracle America owns copyrights in the code, 12 documentation, specifications, libraries, and other materials that comprise the Java platform.
39. 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. Google’s Android infringes Oracle America’s copyrights in the Java platform, and Google infringes Oracle’s exclusive rights under copyright by reproducing and distributing Android and inducing others to reproduce and distribute Android or the code contained within it.
40. On information and belief, users of Android, including device manufacturers, must obtain and use copyrightable portions of the Java platform or works derived therefrom to manufacture and use functioning Android devices. Such use is not licensed. Google has thus induced, caused, and materially contributed to the infringing acts of others by encouraging, inducing, allowing and assisting others to use, copy, and distribute Oracle America’s copyrightable works, and works derived therefrom. Android includes infringing class libraries and documentation. Approximately one third of Android’s Application Programmer Interface (API) packages (available at http://developer.android.com/reference/packages.html) are derivative of Oracle America’s 19 copyrighted Java API packages (available at http://download-llnw.oracle.com/javase/1.5.0/- 20 docs/api/ and http://download-llnw.oracle.com/javase/1.4.2/docs/api/) and corresponding documents. The infringed elements of Oracle America’s copyrighted work include Java method and class names, definitions, organization, and parameters; the structure, organization and content of Java class libraries; and the content and organization of Java’s documentation. Examples of this copying are illustrated in Exhibit I to this complaint. In at least several instances, Android computer program code also was directly copied from copyrighted Oracle America code. For example, as may be readily seen in Exhibit J, the source code in Android’s “PolicyNodeImpl.java” class is nearly identical to “PolicyNodeImpl.java” in Oracle America’s Java, not just in name, but in the source code on a line-for-line basis.
-- 41. Google has distributed Android to many companies interested in the mobile device market, including the members of the Open Handset Alliance, with the understanding and intention that those companies would distribute Android to developers and end-users, all with the purpose of encouraging and promoting the creation and execution of Android software applications. Users of Android must copy and use infringing Java class libraries, or works derived therefrom, to manufacture and use functioning Android devices, in violation of Oracle’s copyrights. Such use is not licensed. Google has thus induced, caused, and materially contributed to the infringing acts of others by encouraging, inducing, allowing and assisting others to copy and distribute infringing works.
- 41. On information and belief, Google’s direct and induced infringements are and have been knowing and willful. 42. On information and belief, Google’s direct and induced infringements are and have been knowing and willful.
- 42. By this unlawful copying, use, and distribution, Google has violated Oracle America’s exclusive rights under 17 U.S.C. § 106. 43. By this unlawful copying, use, and distribution, Google has violated Oracle America’s exclusive rights under 17 U.S.C. § 106.
43. Google has realized unjust profits, gains and advantages as a proximate result of its infringement. 44. Google has realized unjust profits, gains and advantages as a proximate result of its infringement.
- 44. Google will continue to realize unjust profits, gains and advantages as a proximate result of its infringement as long as such infringement is permitted to continue. 45. Google will continue to realize unjust profits, gains and advantages as a proximate result of its infringement as long as such infringement is permitted to continue.
- 45. Oracle America is entitled to an injunction restraining Google from engaging in any further such acts in violation of the United States copyright laws. Unless Google is enjoined and prohibited from infringing Oracle America’s copyrights, inducing others to infringe Oracle America’s copyrights, and unless all infringing products and advertising materials are seized, Google will continue to intentionally infringe and induce infringement of Oracle America’s registered copyrights. 46. Oracle America is entitled to an injunction restraining Google from engaging in any further such acts in violation of the United States copyright laws. Unless Google is enjoined and prohibited from infringing Oracle America’s copyrights, inducing others to infringe Oracle America’s copyrights, and unless all infringing products and advertising materials are seized, Google will continue to intentionally infringe and induce infringement of Oracle America’s registered copyrights.
- 46. As a direct and proximate result of Google’s direct and indirect willful copyright infringement, Oracle America has suffered, and will continue to suffer, monetary loss to its business, reputation, and goodwill. Oracle America is entitled to recover from Google, in amounts to be determined at trial, the damages sustained and will sustain, and any gains, profits, and advantages obtained by Google as a result of Google’s acts of infringement and Google’s use and publication of the copied materials. 47. As a direct and proximate result of Google’s direct and indirect willful copyright infringement, Oracle America has suffered, and will continue to suffer, monetary loss to its business, reputation, and goodwill. Oracle America is entitled to recover from Google, in amounts to be determined at trial, the damages sustained and will sustain, and any gains, profits, and advantages obtained by Google as a result of Google’s acts of infringement and Google’s use and publication of the copied materials.
Update: More filings from Oracle. There's a motion in opposition to Google's motion to dismiss Count VIII of Oracle's Complaint (or in the alternative for a more definite statement); there's Oracle's reply to Google's answer and counterclaims, and there is an order to show cause why the pending motion to dismiss should not be denied as moot.

You call this fixing the oops. Oracle I gather realized that Google had a point about lack of specificity, so it threw out some specifics, and now it wants Google's motion to dismiss denied as moot, and probably will be. Google could file another such motion in response to Oracle's amended complaint, of course.

Here is the specific that I'd like answered. If Google used Apache's Harmony, and the only reason Harmony can't get Oracle's blessing is because Oracle won't let it, then what? Google pays a sum for any past issues, and then everyone including Google switches to the GPL'd stuff? I mean, when Oracle complains about "infringed elements of Oracle America’s copyrighted work include Java method and class names, definitions, organization, and parameters; the structure, organization and content of Java class libraries; and the content and organization of Java’s documentation," that's not talking about Dalvik, surely, is it? It's all Apache Harmony, no?

Harmony was attempting to create a clean-room implementation of Java and get it approved as being Java via the Technical Compatibility Kit (TCK). This includes a clean-room implementation of class libraries. However, by definition, for it to be Java, it has to use "Java method and class names, definitions, organization, and parameters" and implement "the structure, organization and content of Java class libraries". What Oracle is asserting then, in effect, I gather, is that you cannot pass the TCK without licensing stuff from Oracle or deriving from the GPL'd OpenJDK. Harmony is licensed under the Apache License, not the GPL.

That would be ironic, indeed. Google forced to go GPL. Hahahaha. Ironic and fine with me. Well, maybe I'm dreaming. There are the patents clinging like barnacles to Java, too. What a mess.

The additional filings:

10/28/2010 - 38 - ADR Certification (ADR L.R. 3-5 b) of discussion of ADR options (Zimmer, Donald) (Filed on 10/28/2010) (Entered: 10/28/2010)

10/28/2010 - 39 - NOTICE of need for ADR Phone Conference (ADR L.R. 3-5 d) (Ballinger, Richard) (Filed on 10/28/2010) (Entered: 10/28/2010)

10/28/2010 - 40 - Memorandum in Opposition re 33 MOTION to Dismiss Count VIII of Plaintiff's Complaint or, In the Alternative, for a More Definite Statement filed byOracle America, Inc.. (Attachments: # 1 Proposed Order)(Ballinger, Richard) (Filed on 10/28/2010) (Entered: 10/28/2010)

10/28/2010 - 41 - ANSWER TO COUNTERCLAIM 32 Answer to Complaint, Counterclaim Oracle America, Inc.'s Reply to Defendant Google Inc.'s Answer to Complaint for Patent and Copyright Infringement and Counterclaims byOracle America, Inc.. (Ballinger, Richard) (Filed on 10/28/2010) (Entered: 10/28/2010)

10/28/2010 - 42 - ORDER TO SHOW CAUSE WHY THE PENDING MOTION TO DISMISS SHOULD NOT BE DENIED AS MOOT Show Cause Response due by 11/1/2010.. Signed by Judge Alsup on October 28, 2010. (whalc1, COURT STAFF) (Filed on 10/28/2010) (Entered: 10/28/2010)

Here's the wording of the Order to Show Cause:
On October 4, 2010, defendant Google, Inc. moved to dismiss, or in the alternative, for a more definite statement regarding plaintiff Oracle America, Inc.’s copyright infringement claim in this Java-fueled battle over the Android platform. Just yesterday, however, a day before its opposition brief to the motion was due, plaintiff Oracle America, Inc. filed an amended complaint altering and augmenting its copyright infringement allegations. Given this development, Google is ORDERED TO SHOW CAUSE why its pending motion to dismiss should not be denied as moot (without prejudice, of course, to Google filing a fresh Rule 12 motion targeting the claims as pleaded in plaintiff’s newly minted complaint). A response to this order is required no later than NOON ON MONDAY, NOVEMBER 1.
"Java-fueled battle", indeeed. And Oracle is complaining about polemics?

Update 2: Carlo Daffara adds some technical info on the line-by-line claim, having done a diff:

Hm. First of all, the definition of line-for-line equality is not correct here, as the lines are different (but quite similar). I have not developed for quite some time, but I would say that it is not strange to see similarities within the API constraints. Second, while technically part of Android, the code is Apache Harmony, a reimplementation of J2SE that tried (for many, many years) to get the compliance toolkit from Sun, but never did (and now will never do).

But the relevant point is different: the PolicyNodeImpl.java that is presented comes from the OpenJDK distribution, and was as such released under the GPL+ClassPath exception (something that is not mentioned anywhere within the complaint, by the way). Here, the claims are two and different: the first is that Android (actually, Harmony) copied its API that Oracle claims is copyrighted. The second claim is that the actual source code of the PolicyNodeImpl.java file has been copied verbatim.

Let’s start with the first one: the claim that Oracle Java APIs are protected and copyrighted. On this, it seem to me that the interface definition themselves (not the actual source code) as a mere interface does not fall within the copyright provisions, unless the actual names are trademarked, and thus its implementation requires the actual copying of a protected name in a way that is deemed incompatible by its licensee (something similar was done by Autodesk, embedding a copyrighted phrase that if not included in the file prevented the application from opening it directly)....

And now, for the claim that the code is actually copied, here is in its glory the full diff (note: if you download the OpenJDK source you don’t get the file; I had to grab it from here in the Mercurial publication site, the raw file is this one). It seem to me that this is actually a reimplementation and not a straight copy as Oracle claims – but I would like to ask my readers for their opinion.

Me too. Click the link to see his diff.

Update by Carlo: He has two updates:

Second important update: After quite some digging, I have finally found out that the file had the following history:
* An initial import, from a private branch to the public git repo, with this commitdiff, at Sat, 10 Jan 2009 01:50:54

* A deletion of the file and of most of the imported branch at Wed, 4 Mar 2009 02:28:14, with this commitdiff

* The branch got re-imported, with all new files, at Wed, 4 Mar 2009 03:28:47, with this commitdiff, without PolicyNodeImpl.java

So the file was present in the git repo from Jan, 10 to March, 4; after checking the test execution code, it is clear that the code itself was not included in the final build (delivered to handsets) but was part of a test harness, that (funnily) was mostly silenced during the development period due to the majority of tests failing :-) It is however clear that the code itself was distributed, as it was freely accessible online and through the git tree (and – funnily – it is still available under the same means). It was, however, not part of the Android SDK release, as Android 1.6 rel2 was released in December 2009, while rel3 was released in May, with the commit diff already applied.

Important update: I have verified that the code included in Android is actually a decompilation of an old Java 1.5 class file, and my own comparison is invalid, as it was done with a recent Java edition (that does have more changes – thus suggesting a reimplementation). Also, it seems that Harmony actually has not that code in its repo – despite the fact that in Android is part of the initial import under the “Harmony” subproject. My apologies.

Update 3: To the person in Redwood City, CA, or at least purporting to be, trying to post links to objectionable material on Groklaw, you need to stop.

Update 4: Here's what I think is the operative part of Oracle's Answer to Google's Counterclaims:

9. Answering Paragraph 5, Oracle America admits that Sun released some source code for Java SE and other editions in 2006 and 2007 subject to the terms of the GNU Public License, version 2 (“GPLv2”). Oracle America denies any remaining allegations of Paragraph 5.

10. Answering Paragraph 6, Oracle America admits that Sun published its copyrighted Java specifications and offered licenses to them under certain conditions. For example, in the case of the Java 2 Platform, Standard Edition, Sun permitted developers to create “clean room” implementations of Sun’s Java specifications provided that they comply with all applicable license requirements, including requirements that they (i) include a complete implementation of the current version of the specification without subsetting or supersetting; (ii) implement all the interfaces and functionality of the required packages of the Java 2 Platform, Standard Edition, as defined by Sun, without subsetting or supersetting; (iii) do not add any additional packages, classes, or interfaces to the java.* or javax.* packages or their subpackages; (iv) pass all test suites relating to the most recent published version of the specification of the Java 2 Platform, Standard Edition, that are available from Sun (the Technology Compatibility Kits) six (6) months prior to any beta release of the clean room implementation or upgrade thereto; (v) do not derive from Sun source code or binary materials; and (vi) do not include any Sun source code or binary materials without an appropriate and separate license from Sun. Google is not in compliance with these license conditions. Developers were well aware that Sun’s specification license requires compatibility testing using Sun’s TCKs, which were and are available free of charge to qualifying universities, colleges, not-for-profit organizations, and individuals (see http://java.sun.com/scholarship/). Oracle America lacks sufficient knowledge or information to admit or deny the remainder of the allegations of Paragraph 6, and, on that basis, denies them.

Here are the paragraphs from Google's Answer with Counterclaims (the Counterclaims section), referenced by Oracle here, and I've marked in blue the parts that Oracle is not admitting:
5. Upon information and belief, in response to the urging of open-source advocates and in the hopes of increasing the number of Java users, Sun officially announced that Java would become open-source. In 2006 and 2007, Sun released some but not all of the source code for Java SE (as well as the other editions of the Java Platform) under the terms of the GNU Public License, version 2 (“GPLv2”) open source license. This open-source aspect of Java contributed to its widespread acceptance among software developers.

6. Upon information and belief, Sun also released the specifications for Sun’s Java platform, including Sun’s Java virtual machine, under a free-of-charge license that can be found at http://java.sun.com/docs/books/jls/third_edition/html/jcopyright.html and http://java.sun.com/docs/books/jvms/second_edition/html/Copyright.doc.html, respectively. The license allows developers to create “clean room” implementations of Sun’s Java specifications. If those implementations demonstrate compatibility with the Java specification, then Sun would provide a license for any of its intellectual property needed to practice the specification, including patent rights and copyrights. One example of a “clean room” implementation of Sun’s Java is Apache Harmony, developed by the Apache Software Foundation. The only way to demonstrate compatibility with the Java specification is by meeting all of the requirements of Sun’s Technology Compatibility Kit (“TCK”) for a particular edition of Sun’s Java. Importantly, however, TCKs were only available from Sun, initially not available as open source, were provided solely at Sun’s discretion, and included several restrictions, such as additional licensing terms and fees. In essence, although developers were free to develop a competing Java virtual machine, they could not openly obtain an important component needed to freely benefit from Sun’s purported open-sourcing of Java.

So this is the argument. Oracle says Google didn't cross all it's Ts. And also it seems to be arguing that Google doesn't qualify, not being an individual, nonprofit, etc. Google answers that it used Apache Harmony, a clean room implementation, and it blames Oracle for refusing to give Apache Harmony its blessing. So. This means the picture has gotten clearer, and not so clear at the same time. We know now what the argument is about, and it's also obvious now why Oracle is upset. It feels Google didn't get an appropriate license, and maybe that it derived from Sun source code or binary materials and included Sun source code or binary materials "without an appropriate and separate license from Sun".

If your patents close the door to any alternative way to achieve similar functionality, is the software patent then still legitimate? If you refuse a license to your patent, and there is no other way to achieve that functionality, then what happens? We're going to find out, I gather, with the added complication that the Apache Foundation says the allegedly copyright infringed file named by Oracle isn't part of Apache Harmony. That's what I mean by clearer and yet not so clear. The argument, in effect, goes to the question of the fairness of the patent system, I'd say. And if you look at Google's record in dealing with patent infringement litigation, you would see that they have a very good record of getting patents tossed overboard.

For example, in August, Google was successful against what folks not wishing to get sued by litigious nut jobs now call "non-practicing entities", as reported by The Prior Art:

Earlier this month, Google and its lawyers at Quinn Emanuel Urquhart & Sullivan went to trial against Erich Spangenberg -- one of the best-known and most successful patent enforcers -- in federal district court in Marshall, Tx. At issue was an e-mail sorting patent that Spangenberg picked up on the cheap and then asserted against Google, Yahoo, AOL, Amazon, Borders, and IAC/Interactive in 2007, at the height of the East Texas patent litigation explosion. All of the defendants except Google and Yahoo settled, but it's no surprise that Google, which has a uniquely unbending attitude toward suits brought by non-practicing entities, refused to take out a license on Spangenberg's controversial patent. The company's hard line was vindicated when, after a six-day trial, a panel of 10 jurors found that the search engines run by Google and Yahoo do not infringe the asserted patent. The jury also invalidated the patent on multiple grounds.

None of the parties are saying much about the trial. The lead lawyer for Spangenberg's patent holding company, Bright Response LLC, was Marc Fenster of the Los Angeles firm Russ, August & Kabat; he didn't respond to The Prior Art's requests for comment. Google's outside lawyers at Quinn Emanuel deferred to the company, but a Google spokesperson declined to comment. The company did offer a short statement to sister publication AmLaw Litigation Daily (subscription required) immediately after trial. At that time deputy GC Tim Alger said: "This decision, as well as other recent Google patent litigation victories, validates our long-standing belief that the courts are burdened with a great number of frivolous patent lawsuits filed by speculators looking for an unjustified windfall."

If you view patents as the most holy of holies, then you are asking yourself, why would Google not just buy a Sun license and go through the whole rigamarole? They pay others for licenses, after all, and they have more money than god. Maybe they thought it through carefully and decided Sun was being unreasonable and that it was worth it to fight. Here's the Apache Foundation's Open Letter to Sun Microsystems back in 2007, complaining about Sun's refusal to grant it a license. A bit of it, to give you the idea:
Since August 2006, the ASF has been attempting to secure an acceptable license from Sun for the test kit for Java SE. This test kit, called the "Java Compatibility Kit" or "JCK", is needed by the Apache Harmony project to demonstrate its compatibility with the Java SE specification, as required by Sun's specification license. The JCK license Sun is offering imposes IP rights restrictions through limits on the "field of use" available to users of our software.

These restrictions are totally unacceptable to us. As I explain below, these restrictions are contrary to the terms of the Java Specification Participation Agreement (JSPA) - the governing rules of the JCP - to which Sun is contractually bound to comply as a signatory. The ASF has a proud history of support for open software ecosystems in which commercial software can flourish. However, Sun's JCK license protects portions of Sun's commercial Java business at the expense of ASF's open software. It prevents our users from using Apache software in certain fields of use. Such implicit or explicit threats of IP-based aggression give one actor overwhelming commercial advantages over the other participants in the ecosystem. In an open ecosystem, it must be the case that the necessary IP to implement a specification can be secured independently from the specific commercial interests of any one actor in the ecosystem, which is the basis of our objection to your offered terms.

Your restrictions violate the basic protections of the JCP, which ensure both that a) specification leads and expert groups produce open specifications, and b) anyone can implement and distribute compatible implementations of those specifications without fear of obligation to the specification lead or members of the expert group for any "necessary IP" needed to implement that specification. Specifically, the JSPA requires that

1) a specification lead cannot "impose any contractual condition or covenant that would limit or restrict the right of any licensee to create or distribute such Independent Implementations" (section 5.C.III)

2) a specification lead must license all necessary IP royalty-free to any compatible implementation of a specification (section 5.B)

Your terms are attempting to circumvent both of these requirements.

Besides holding back the Harmony project - a community-led open source project of the ASF since May of 2005 - this failure to comply with your contractual obligations poses serious risk to the credibility of the JCP as an open standards organization, and the reputation of Java itself as an open technology. We believe that this also threatens the general cooperative nature of the commercial Java ecosystem, puts at risk the long-standing positive relationship between Sun and the ASF, and probably between Sun and the broader open source community - all of which is key to the continued growth of Java.

Beyond the obligations of the JSPA, these limitations are also contrary to Sun's public promise that any Sun-led specification would be fully implementable and distributable as open source/free software. It shouldn't have to be mentioned that "fully implementable" includes passing the JCK, as required by the specification license. To this end, limitations on field of use for our users is contrary to the basic principles of open source licensing, and therefore these limitations would prevent distribution under any open source license, including our own.

Or maybe somebody goofed. Or maybe Google did something it shouldn't, according to the rules of the most holy of holies. We won't know for sure until discovery gets going, and there is always a possibility that this settles out and we never find out. But at least now we know what the argument is about. And if you are curious about how copyright law handles copyright infringement of structures and methods, here's Whelan v. Jaslow, which is a famous case that set out a way to know when it is infringing and when it's just the only way to accomplish a computer task.

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