Monday Morning: Falling
This morning feels like a fall from great height — disorienting yet certain to end only one way.
Should have rolled over and gone back to sleep instead of mixing it up about politics during the wee hours. ~ yawn ~
The embedded video actually launches a playlist of Afro Celt Sound System. They’re a favorite mood lifter, a perfect example of diverse music styles meeting to create something even more special. Cuts I’ve worn out besides When You’re Falling (with Peter Gabriel) are Lagan, Life Begin Again (both with Robert Plant), and North — yes, I think my favorite album is Volume 3 – Further in Time.
Let’s fall forward.
Oracle v. Google: The most important technology case not about privacy and security
Yet another reminder/disclosure before I start on this case: I own $GOOG, $GOOGL, and $AAPL. I do not own $ORCL or $MSFT, nor did I ever own Sun before it was acquired.
That said, Oracle v. Google is about the gift economy, the march of time and its effect on technology companies, and patent/intellectual property trolling as a business model. The gift economy I’ve followed for years; I was hired to provide competitive intelligence on open source software because the company seeking my services felt it was a threat to their business. And it was, it very much was, though the threat changed over the last decade from free open source software (FOSS) to free software as a service (SaaS) provided with cloud storage.
In a nutshell, Oracle is suing Google for $9 billion — the amount it feels it is due as the heir to Java, acquired when it bought the former Sun Microsystems in 2010. You’ll recall that Sun Micro was once a moderately competitive producer of servers and the creator of open source operating system OpenSolaris (based on Solaris Unix) as well as Java.
Java is a software language used as an alternative to C and C++. Its creators at Sun wanted “Write Once, Run Anywhere” capability so that software written in Java could run on any hardware platform. Contrast this to Microsoft software which runs on Windows-compatible PCs only. Sun did not sell Java licenses but instead sold developers’ kits to encourage the propagation of both the language and its Java-friendly hardware and Solaris Unix operating system. Java was a loss leader offering — like the dozen eggs for free if your total grocery order is $50 or more. This is the gift economy at work.
Java’s creation was initially a response to the lock-in of the desktop PC environment. However, IBM began using Java, allowing the same language to be used on everything from its mainframes to IBM-supported handheld devices.
Handheld devices now include smartphones and tablets running the Android operating system, a variant of Linux now owned by Google after its acquisition of Android, Inc. in 2005. Android’s popularity ate away at cellphone market share running Symbian, Nokia OS, and Windows-based mobile OS. Approximately 80% of the world’s smartphones now run on Android and with it Java application programming interfaces (Java APIs). It’s this installed user base from which Oracle insists it deserves a cut of the revenues.
Oracle is a software company, though unless you are in a larger enterprise, you’ve probably not used their products. Initially, a relational database management system company, over time Oracle has purchased a number of middleware businesses which rely on databases. Like PeopleSoft, a human resource management software — human resource information in a database, manipulated and managed by a middleware application above it. It has also acquired software and businesses with which its products once competed. Innobase, an open-source relational database management system (RDBMS) developer, was acquired in 2005; its application was based on MySQL, another open-source RDBMS.
MySQL’s parent company MySQL AB was itself purchased by Sun in 2008, and acquired by Oracle with Sun in 2010. MySQL remains open source and underpins many commonly used applications used across the internet, though Oracle is now its owner/developer.
You can see the ownership chain gets incredibly messy over time. But it’s also easy to see that Oracle is predatory; its business model relies on consuming other businesses to ensure the survival of its underlying database software, not merely to flesh out its offerings. It has acquired software to build an enterprise stack, or it buys nascent threats to its database software and closes them off in a way to ensure no leak of profit-making opportunities (ex: killing OpenSolaris, the FOSS version of Sun’s Solaris operating system). It also buys businesses and applications used to monitor intellectual property and competitive intelligence.
Not a surprise, really, when one considers the founders — Larry Ellison, Bob Miner and Ed Oates — all once worked on a CIA project code-named Oracle.
A test of the gift economy and the open source movement are at the heart of this case. FOSS relies on it, and now the internet does, too. Anyone connecting to the internet is touched by software and hardware consisting of or shaped by FOSS. Many believe the roots of the open source movement are in software, but the underlying premise goes even further back, to the late 1700s and the first freedom of information law (Sweden’s Freedom of the Press Act, c. 1766). Based on freedom of information, some contemporary governments demand FOSS as a means to ensure citizens have access to information without regard to proprietary business models.
Read any of the links above and your head will spin with the Byzantine convolutions of the software industry over the last two decades. Add the snark-laden quirks of geekdom shaping the decision-making process — quirks which are inside baseball and define one’s belonging to the industry.
Top it off with the inexorable co-development and emergence of the gift economy, and it’s utterly beyond the comprehension of the average Joe or Josephine on the street. Unfortunately, Joe and Josephine are seated as jurors, directed by an equally clueless judge appointed by a neoliberal president (who likewise cannot grok anything created and given to benefit all without some immediate upfront cost benefit in an offshore account). The concepts behind APIs are particularly hard for the judge and jury to understand, exacerbated by testimony from people who did not rise to the top of their industry because of their facility with spoken English.
Read Sarah Jeong’s piece in Motherboard about this case. Read others, like the overview at Ars Technica (read the enlightening comments, too), but keep in mind that everyone who has a stake in the success of technology also has an agenda. Sometimes it’s as simple as their stock portfolio or the type of phone they hold in their hand.
Sometimes their agenda is more complex and based on the concepts of free open-source software and the gift economy. What is open-source if it can be bought and retroactively used as a profit center long after the horses have been freed from the barn? What did the progenitors and decades of collaborators intend Java to be: a profit center in itself for a company they couldn’t see coming more than a decade later, or a means by which users/owners could freely choose more than a single software or hardware company to accomplish their tasks?
And will this case discourage and suppress the explosion of technology developed using a variety of open source licenses?
Phew, this was more than I expected to write about this. Swamped my usual morning roundup, which I’ll save for tomorrow morning.
One more thing: after reading the above about the legal war between the Titans of Technology, you might find this speculative mythological fiction rather entertaining. Where do these Titans fit in this mythology?
Many years ago I worked at an R&D div of a Fortune 100 in Santa Clara. My Purchasing manager had been tasked with implementing a purchasing/receiving/accts payable system but dithered on and on. I took it upon myself to develop and implemented the system using Filemaker(I didn’t know what I was doing I might add). It worked really well and users liked its simplicity. Our CFO wanted Oracle, so we got their woe begotten purchasing module for a couple mill, and numerous Oracle and third party consultants of wildly different abilities and added a layer to IT in hiring a new DBA.
Since then I’m jaded about Oracle, ERP and ERP consultants in general.
TL;DRA – Bottom line: This is all about an attack of F[L]OSS
and fascists wanting to control everything by monetization.
Software is the future and the fascists do not want it to be free.
If APIs are not Fair-Use, we are all screwed.
arbusto (2:47) — There have been a number of sweet little enterprise systems on the market, like Sage 50, easy for the non-developer to integrate. But they still require regular patching and updates, making web-based programs even more appetizing.
Pretty sure Oracle is pressing hard on Google because it’s losing market share to those web-based SaaS like one of +300 for sales/CRM, or one of +80 ERP applications on the market. Emergence of SaaS+Cloud exploded the options for businesses.
I’m looking at one for a tiny mom-and-pop business that runs $24/month, covers every aspect of their business from CRM to project management to ERP and accounting. That’s insanely cheap, considering they have to do zero updating/patching, can access anywhere on any device with internet access. Fits the ‘gig economy’ very well — this is another problem for Oracle, too, can’t compete for increasing number of tiny businesses while big businesses are stagnant or consolidating.
SpaceLifeForm (3:02) — Pretty sure in this case that’s a side effect. Ellison wants the 9 billion to save his ass. How can Oracle explain going after Java in Android, but not going after MySQL? Why didn’t Oracle go proprietary with OpenOffice once LibreOffice broke away? Lack of consistency toward FOSS Oracle bought is problematic to my mind. But unfortunately nobody will explain this very well to the judge or jury.
Do I get the first comment? I’ll use it to make 4 points and a flash-back
to Ray Bradbury.
.
1. “Oracle v. Google: The most important technology case not about
privacy and security”
.
Ho, boy, here we go. As a patent guy who has been consuming intellectual
property cases for almost 20 years, I couldn’t agree less. O v. G was
originally a patent + copyright case, and as such it is a “technology case
not about privacy and security” and a durn interesting one. But I don’t
think many IP wonks would consider it the most important one ever.
For one thing, it’s restricted to software whereas many, many patent
cases affect the entire field of patents. “Bilski” comes to mind first.
The fact that the USSCt refused to hear O v. G pretty much tells you it
wasn’t one of the top 10 important technology cases. Now if I was
holding Google stock, I might agree with you.
.
The case is still a technology case but is no longer a patent infringement
case; it is back in the trial court on remand from the Federal Circuit Court
of Appeals (FCCA), reduced to a pretty bland copyright case. Although
with the possibility of Oracle collecting, like you say, almost $9B, it’s not
bland from Google’s stockholders’ perspective
.
All the excitement was back in 2014 when Judge O’Malley of the FCCA
held that the Java API could be protected by both patents and copyright.
That decision has not been universally applauded by patent lawyers,
but the USSCt refused to review it after asking the US Solicitor General
whether a review was advisable. He said “punt it” and they did. Here’s
the way a law professor at Berkeley saw it:
Presently the question is whether Google’s appropriation of the Java
code should be considered “fair use.” This question is bland because there
are no large legal issues involved. It’s all about the details of how much code
Google stole compared to the total amount of code that was there.
.
2. “Oracle is suing Google for $9 billion – the amount it feels it is due
as the heir to Java”
.
Cheap shot.
.
There’s nothing bland about the $9B Oracle is seeking, but it is not an
amount due for being an heir. The case is about Google reverse
engineering the JAVA API – IOW screwing the inventors and their
assignees out of IP rights, which means out of $$. Oracle rightfully
acquired all of the IP rights related to Java and other Sun IP assets.
Nothing wrong with that. If there is, then there is also something wrong
with you buying a house and thereby acquiring the right to live there.
.
3. “patent/intellectual property trolling as a business model”
.
Another cheap shot.
.
I don’t see where you see trolling here. A troll – aka “non-practicing entity”
– is a person or company that buys up patents for the sole reason of
enforcing them. The troll, by definition, doesn’t actually put the patented
tech to work, it just sits on the patent until someone inadvertently (or not)
infringes, and then jumps out from under the bridge and demands a toll
to get across; i.e. to settle the infringement suit. To imply that Oracle merely
sat on the Java patents without developing or employing the tech is nonsense.
.
This is clearly a case of Google trying to muscle in and steal technology that
Oracle feels it has an exclusive right to exploit. The patent part of the case
was won by Google, BTW, based on very technical arguments about the wording
of the patent claims.
.
4. “ it’s utterly beyond the comprehension of the average Joe or Josephine
on the street.“
.
OK, here’s a point we can boogie on; however, I would note that the complexity
of this O v. G case is minor compared to a lot of patent cases. Even the
patent part of the original case was not in the stratosphere as far as complex
patent cases go. But I take your point completely and agree with it
completely: These cases should not be heard by a bunch of jurors with high
school educations and should not be tried by judges with nothing but law
degrees and undergraduate degrees in Greek history.
.
I have been hanging out on patent lawyer blogs since they first appeared.
I cannot count the number of times I have tried to sell your point. I get
tepid agreement but no enthusiasm – patent litigators make enormous
salaries and they don’t want to kill the cash-cow in order to make the
system more efficient or fair.
.
But there is precedent for specialty patent courts – federal tax courts
and bankruptcy courts, which are run by people who are trained in those
areas. The rationale for these courts was that the subject matter is so complex,
but those areas are nowhere near as complex as patent law – both in terms
of the law itself and the technology.
.
There should be a system of specialty patent courts – both trial courts and
appeal. The judges should all be patent lawyers admitted to the Patent and
Trademark Office, which requires passing a very difficult bar exam on patent
procedure and law. There should be a stable of federally certified expert
witnesses and jurors with advanced degrees, where appropriate, who are
not associated with either party in the litigation. I ain’t making this up
myself – Ray Bradbury wrote a story along these lines decades ago.
Can’t recall the name of it, but I do remember a scene where a person
who was training to be a professional court witness was asked to look out
the window and tell the class what color the house was on the hill. He
fell for it and said “white.” He flunked. The correct, objective answer was
“White on this side.” I think it was Bradbury.
.
Finito. Sorry for taking so long to get to the Bradbury part.
Thanks, Rayne. Big bidness buying up small competitors with novel products and ideas to preserve market share and maintain a dominant position. Who could have known, Condi, who could have known?
Denis (3:57) — LOL I’ll just get that out of the way first.
1) This case is important because the decisions up to now have been crappy. Java was open sourced, period. The outcome of this case will have a chilling effect on any technology firm relying on Java APIs.
2) Oracle wants 9B for doing precisely dick for the open source community. They were obstructive to Java’s community BEFORE they bought Sun, and likely because they wanted to ensure they were in better position than rivals in database software at that time. I remember IBM folks then being very unhappy with Oracle’s ham-handedness. Apache was clearly torqued off at Oracle’s approach to so-called open-source software as it left the community.
Oracle’s also inconsistent about the so-called open-source software it’s acquired. As I mentioned up thread: why go after Java API and not after MySQL, especially when MySQL is closest to Oracle’s core product? Is taking on Google perceived as both popular and an easy fat wallet, versus going after a myriad of small nonprofit outfits like WordPress and Drupal (both of which rely on MySQL’s GPL license)?
3) There’s a reason why developers left of their own will after Oracle bought Sun; Oracle’s treatment of OpenSolaris is just one example. “Non-practicing entity” works here.
4) Given how many stories have been written by the tech industry about the judge’s and jury’s lack of comprehension, I’d be surprised if you didn’t agree here.
earlofhuntingon (4:18) — Dude. You rely every day on those small competitors with novel products to create better technology. You trust implicitly that technology will continue to be there for you. Imagine if it was suddenly held ransom by a company which had no intention of cultivating and improving the product.
You know, like the open-source software that this site runs on. That.
Dude, we’re on the same page. My comment was that the practice has been common since the Big Four and Rockefeller were middle class gents. The practice is an example of the fallacy of innovation at big firms. Innovators such as Bell Labs died long ago. Big Pharma, Big Oil, Big Auto and Big Data find it’s cheaper to buy up competitors and their ideas, and squash what doesn’t fit their current business model, all to reinforce their often dominant positions. As you imply, small, innovative producers are not merely small seeds in the capitalist mill. They are keeping capitalism with a small “c” – and aspects of democracy – alive. Open-source programs are one of the few legs keeping the Internet stool standing.