I’ve recently been reading the Oracle verses Google court case at Groklaw and I must say I am surprised at one thing. Apache Harmony (an Open Source Java SE.) has been around for a very long time, Sun has known for many years exactly what was in Harmony and who put it there and why (by their own admission) and Apache has been hassling Sun to certify Harmony as Java compliant without having to pay for a TCL. (Apache give it away for free so non free terms are difficult for them). Because Apache were not able to get a free TCL to certify Harmony was fully Java compatible, they never stipulated that it was. That doesn’t mean it’s illegal because the Java language is free, it just means that without the certification they couldn’t claim it was Java compatible, or use trademarks owned by Sun.

Not only did Sun never go after Apache Harmony (which contains ALL the API’s that Oracle is suing Google for), the then CEO of Sun (Jonathan Schwartz) is actually on record as saying Harmony was fine to be released as it was. Since Sun also knew that Harmony was under an Apache license (which is the same license that Google used for that part of Android), How can this not be viewed as anything but an implied license?

It goes further than that even. The same CEO is on record as saying he approved of Android and they welcomed the Java language being brought to a lot more people. In fact he will be testifying at trial that Android had his full approval a the time.

If the boss of the company who actually made Java (as opposed to Oracle who just bought Sun after all was already said and done) said on more than one occasion that Harmony was fine and legal as is, and that Android is welcome and they’d like to help however they can, again, how can this not be seen as an implied license?

Sun tried to make a popular mobile OS and failed, Oracle looked at it themselves and realized that they didn’t know enough to pull it off. Someone at that point appears to have decided “stuff it, this is too hard, lets just take a slice of Google’s pie.”

Simple facts (as I understand them),
Sun had no issue with Apache harmony with all the API’s in question under an Apache license and said so publicly and on the record.
Google uses those same Apache harmony API’s in Android under the same Apache license.
Sun (prior to Oracle buying them) also publicly endorsed Android on more then one occasion.
Oracle came and bought Sun after all of this happened and started looking for ways to monetize their investment. (In fact I believe ex Sun employees have said that Oracle were already looking for dirt on Google prior to the Sun sale even completing.)
Oracle are now claiming that Harmony is infringing and that Google is too as a result.

Is it even legal for a company that buys another company to retrospectively contradict their previous CEO’s public announcements when they don’t agree with them? I’d love to hear some explanation of how that is possible.

This article was posted on Thursday, April 19th, 2012 at 3:12 pm