Why Oracle, not Sun, is suing Google

Sun executives were hardly happy when Google revealed how Android would make use of some Java technology without paying Sun any licence fees. But it took Oracle's cold calculation and financial strength to turn that dissatisfaction into a lawsuit.

On Thursday, Oracle sued Google for patent and copyright infringement concerning use of Java in Android, setting the stage for an expensive, potentially protracted clash of titans. "In developing Android, Google knowingly, directly and repeatedly infringed Oracle's Java-related intellectual property," the company said in a statement.

Although Android's success is new, its software components aren't. Google announced Android in 2007 and released the Android project source code in 2008. As far back as 2007, Sun objected to Google's use of Java technology in a way that bypassed Sun, sidestepped the Java Community Process that oversaw Java, and contributed nothing to the mobile Java licence payments that one source told ZDNet Australia's sister site CNET had reached more than a billion dollars a year for Sun. By the time Android arrived, though, Sun wasn't in a position of strength to sue.

But my, what a difference an acquisition makes to corporate politics.

"Filing patent suits was never in Sun's genetic code," said James Gosling, a key Java creator, on his blog. But Gosling, who earlier referred to Oracle chief executive Larry Ellison as Larry, Prince of Darkness, and who became independent after quitting Oracle shortly after the Sun acquisition, also got a good look at Oracle's DNA: "During the integration meetings between Sun and Oracle, where we were being grilled about the patent situation between Sun and Google, we could see the Oracle lawyer's eyes sparkle."

That's not to say Sun didn't carefully consider its options.

Google re-implemented some Java technology on its own, letting programmers essentially use Java to write their programs and including a key virtual machine component, called Dalvik, that translated those programs into the code that actually runs on Android devices. Technology cloning is a decades-old art in the computing industry, and it often relies on a "clean-room" approach in which engineers independently re-create how technology works to minimise legal risks.

"There were a lot of discussions about how clean-room Google really could have done this," said one source familiar with how Sun responded to Google's Android moves. Rich Green, then head of Sun's software group, said at the time that there's no room in Mountain View, California, where Google is based, that's clean enough, the source said.

Indeed, significant Java expertise moved from Sun to Google, not least among them Google chief executive Eric Schmidt, who had been Sun's chief technology officer years earlier. One notable Google hire in 2005 was Tim Lindholm, who had led mobile Java work at Sun and who co-wrote a book, "The Java Virtual Machine Specification". Other Java engineers Google hired included Joshua Bloch, Scott Violet and Chet Haase, who according to his LinkedIn profile, works on Android after a post-Sun stint at Adobe Systems.

"Google hired a load of Sun engineers who worked on Java," said another person familiar with the companies' relationship.

Oracle declined to comment for this story.

Responding to a request for comment, a Google spokesperson said: "We are disappointed Oracle has chosen to attack both Google and the open-source Java community with this baseless lawsuit. The open-source Java community goes beyond any one corporation and works every day to make the web a better place. We will strongly defend open-source standards and will continue to work with the industry to develop the Android platform."

When Sun and Google were allies

The frosty Java situation with Google was a dramatic reversal from 2005, when Sun and Google announced a partnership that among other things meant Sun would distribute the Google Toolbar software with Java, that Google would promote Sun's OpenOffice.org software that rivals Microsoft Office, and that Google would increase its involvement in the Java Community Process.

Happier times: Sun and Google were Java allies in 2005, when Sun's then-president
Jonathan Schwartz, left, and CEO Scott McNealy, centre, joined Google CEO Eric Schmidt
to tout a partnership that ultimately fizzled. (Credit: Stephen Shankland/CNET)

Google didn't like the terms under which Sun was offering Java, though, even though it was open-source software. It was governed by the GNU General Public Licence (GPL), and Google didn't want mobile phone makers to worry that using Android would force them to release their software's source code under that licence's sharing provisions.

"The thing that worries me about GPL is this: suppose Samsung wants to build a phone that's different in features and functionality than [one from] LG. If everything on the phone was GPL, any applications or user interface enhancements that Samsung did, they would have to contribute back," said Andy Rubin, Google's Android engineering director, in a 2008 interview. "At the application layer, GPL doesn't work."

Sun had taken a more liberal approach with the "Standard Edition" of Java for PCs and servers, including a "classpath exception" that permitted programmers to link to GPL code without worrying whether that might require them to release it under the GPL.

But Sun didn't include the classpath exception in the Mobile Edition of Java, so mobile device companies that wanted to use Java — and there were many — often ended up paying for a more conventional licence to use Sun's technology.

That had become lucrative: a source familiar with Sun's Java work said royalty payments for mobile Java exceeded more than a billion dollars a year but that had dropped to hundreds of millions of dollars during the time of the Oracle acquisition.

So it should come as no surprise that Oracle, upon seeing the blossoming success of Android, should want to ensure it, too, contributed to that royalty stream. Though Google's boldness has rattled the tech industry as it tackles everything from video entertainment and email services to browsers and phone service, Oracle isn't afraid to take on the search giant.

Why pay for a patent suit?

Patent infringement lawsuits are expensive affairs, even for wealthy tech companies, in part because they consume tremendous amounts of time for executives and engineers involved. But sometimes companies see them as worthwhile.

One reason why is the money. Oracle hasn't specified how much it's seeking in damages, but Oracle claims Google violated seven patents "wilfully", which means payments are tripled if Oracle prevails.

Second, there's the intellectual property. Patent lawsuits are often settled with a cross-licence agreement that grants each party rights to use the other's patented technology, often with annual payments flowing in the direction of the company with the better patent portfolio. Google, though relatively young, has a growing list of patents and an engineering culture that rivals Sun's in its earlier days.

The Sun patent portfolio has proved its worth before. Microsoft paid Sun US$900 million to resolve patent issues in 2004 after a years-long legal fight over Java. Microsoft's C# language and .NET software foundation are conceptually very similar to Java, and Sun augmented its original suit with an antitrust lawsuit in 2002. The payment was accompanied by US$700 million to settle the antitrust claims and US$350 million in a one-time royalty payment.

But when Sun began its lawsuit against Microsoft, it was at the lucrative centre of the 1990s tech boom. By 2007, when Google announced Android, Sun was suffering after years of middling to bad financial results.

That lack of financial clout was one part of why Sun didn't do more with Google than complain publicly about Android, according to one source familiar with Sun's work at the time.

War chest weakness

"When your stock price is at US$3 or US$4, your war chest is not big enough to go up against an opponent like Google," the source said.

In addition, Sun didn't want a repeat of the extremely distracting lawsuit against Microsoft. Gosling was trapped for months in Washington, DC, dealing with the suit, rather than with Java engineering, and his colleagues threw him a big party upon his return to his preferred vocation.

Oracle, though, evidently isn't so deterred. It possesses the financial strength to pursue the claim against Google, despite likely counter-claims that will increase the expense of the lawsuit.

But Google's a big, influential and growing company, too, and Oracle now has a new enemy in Silicon Valley among at least some of its employees. One is Tim Bray, an Android evangelist at Google who previously was Sun's director of web technology.

In a Thursday tweet, Bray said, "Speaking only for myself as an individual of course: F*** Oracle."

Via CNET