[License-discuss] License-discuss Digest, Vol 106, Issue 8
Gustavo G. Mármol
gustavo.marmol at gmail.com
Mon May 3 14:10:20 UTC 2021
Emmanuel, some additional information below. Regards, Gustavo.
1. Apache Harmony (Apache License) (the independent reimplementation of
Java Class from the ASF): "The class library for Dalvik VM incorporates a
subset of Apache Harmony. "The Android platform includes, among other
things, the Android Software Development Kit (“SDK”) and the Dalvik Virtual
Machine (“VM”). The Dalvik VM relies on a
version of the Linux kernel for core system services such as security,
memory management, process management, network stack, and driver model, and
as an abstraction layer between the hardware and the rest of the software
stack. The core class libraries of the Dalvik VM incorporate a subset of
Apache Harmony, a clean room, open-source implementation of Java from the
Apache Software Foundation. Other than the Harmony libraries, the Android
platform, including, without limitation, the Dalvik VM, was independently
developed by the OHA". (GOOGLE INC.’S ANSWER TO PLAINTIFF’S COMPLAINT FOR
PATENT AND COPYRIGHT INFRINGEMENT AND COUNTERCLAIMS, /COUNTERCLAIMS-Factual
Background, point 13.)" Therefore, and according to Google´s own words,
Google did not take anything "directly" from Oracle, instead, it took from
the ASF reimplementation.
"Harmony contained, among other things, class libraries for the 37 APIs at
issue in this case (Trial Tr. at 396–97). Starting about 2005, Apache made
the source code for Harmony publicly available to download from its website
(id. at 561). At some point after 2005, Google downloaded the code at issue
herein from Harmony for use in the Android platform (id. at 1684, 1688).
Google chose Harmony because of Apache’s open-source license, which
permitted developers to modify the software code, without having to submit
the modifications back to Apache (id. at 1506–07, 1697)"...Sun (now Oracle)
offered different types of licenses for the Java programming platform. One
such license was a specification license, which permitted developers like
Apache to view the specifications (not the source code) for Java so that
they could build their own version of Java (id. at 293–94). Sun also
required developers like Apache to get a license for a test compatibility
kit or “TCK,” which they were required to pass to ensure that their
versions of Java were compatible with the standard edition of Java (id. at
294, 376–77)..."Starting in 2006, Apache attempted to obtain a license from
Sun for a TCK or JCK
(“Java compatibility kit”) for Harmony to “demonstrate its compatibility
with the Java SE specification, as required by Sun’s specification license”
(TX 917 at 1)"..."Sun offered Apache a license for a TCK/JCK, but with a
“field-of-use restriction” (ibid.). A field-of-use restriction “is a
restriction that limits how a user can use a given piece of
software, either directly or indirectly” (TX 1047 at 4). Sun’s field-of-use
restriction required Apache to limit the use of Harmony to desktop
computers or servers — i.e., not mobile devices (Trial Tr. at
524–25)...."Apache disagreed with Sun’s field-of-use restriction (TX 1047
at 5). On April 11, 2007, Apache sent Sun an open letter, requesting a
TCK/JCK license unencumbered by a field-of-use restriction (id. at 2).
Apache explained that Sun’s field-of-use restriction contradicted the
“basic principles of open source licensing” and prevented distribution
under “any open source license,” including Apache’s own license (ibid.).
The dispute between Apache and Sun became known to other members of the
open-source community. On June 22, 2007, various members of the open-source
community including Google and Oracle (before it acquired Sun) sent a
letter to Sun, requesting that Sun release a TCK/JCK license to Apache
without a field-of-use restriction (TX 2347 at 1). Sun never agreed to
Apache’s request for a TCK/JCK license with no field-of-use restriction
(Trial Tr. at 527). Harmony was eventually shut-down (after Google adopted
its code for Android) (id. at 530). (ORDER IN LIMINE RE ORACLE’S
MOTION IN LIMINE NO. 2 TO EXCLUDE EVIDENCE OF APACHE HARMONY AND GNU
CLASSPATH, April 2016)
..
2. OpenJDK (GPL plus Classpath Exception (the Sun open-source
implementation of Java SE): "Significantly, for OpenJDK, Sun also allowed
a more permissive license. Instead of the General Public License Version 2,
Sun allowed OpenJDK to be used under the General Public License Version 2
with Classpath Exception. The phrase “with Classpath Exception” is the key
phrase"..."This exception disposed of some of the requirement imposed on
licensees to contribute back to the public all of the licensee’s follow-on
code developed with OpenJDK. This meant that companies like Google could
use OpenJDK, reimplement its API, make that source code public and license
OEMs to use it to “link” to their own programs in “executable” form.
Provided the OEMs’ new programs did no more than “link” to the OpenJDK code
as implemented in Android (and provided the OEMs did not further modify the
Java APIs), the OEMs would not have to contribute their proprietary code
back to the public — or so Google contends with at least plausible
support"...."Oracle disputes the leniency of the Classpath Exception. More
to the immediate point, Oracle correctly observes that Google considered
this very option at the time in question and rejected it because Google
feared its OEMs would worry over whether the Classpath Exception really got
around the give-back-to-the-public feature of the General Public License
Version 2, a bedrock feature of the open-source concept. OEMs wanted to
keep their versions of Android proprietary."... (ORDER RE GPLv.2+CE,
OPENJDK, GNU CLASSPATH, AND CUSTOM- May 2016)
3. Fair Use Analysis. "On the fourth fair use factor, OpenJDK is relevant
as well to show that the harm to Java from fragmentation as well as to the
market value of the copyright was caused by Sun’s own decision to release
OpenJDK with the Classpath Exception". (ORDER RE GPLv.2+CE, OPENJDK, GNU
CLASSPATH, AND CUSTOM- May 2016)
4. "Consent to use, it is only indicative of consent subject to its
applicable license terms". "Google also contends that the release of
OpenJDK indicates that Sun and Oracle actually consented to Google’s use of
the declaring code and SSO of 37 API packages from Java SE. This falls
flat. To the extent OpenJDK is indicative of consent to use, it is only
indicative of consent subject to its applicable license terms. Google may
not offer OpenJDK as evidence that Sun or Oracle consented to Google’s use
of the declaring code and SSO despite its failure to comply with
GPLv.2+CE". (ORDER RE GPLv.2+CE, OPENJDK, GNU CLASSPATH, AND CUSTOM- May
2016)
5. Android Nougat (OpenJDK version for Android). "Although Google will be
allowed to prove that OpenJDK was a viable alternative for Android when it
was under development, Google will not be allowed to introduce evidence
that in 2015, only a few months ago, and well after the events in question,
Google released an OpenJDK version of Android (called Android N). This
last-minute announcement smacks of a litigation gimmick. Oracle was denied
a fair opportunity to vet the new project. Google should have done this
early enough to give Oracle a full and fair chance to investigate it rather
than jamming Oracle at the last minute. While a limited inspection occurred
and a tad of discovery occurred, this was too much to lay on Oracle too
late in the process. It was just not fair and was prejudicial. So, all
evidence regarding the 2015 implementation of OpenJDK for Android is
excluded". (ORDER RE GPLv.2+CE, OPENJDK, GNU CLASSPATH, AND CUSTOM- May
2016)
El vie, 30 abr 2021 a las 15:42, <
license-discuss-request at lists.opensource.org> escribió:
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> Today's Topics:
>
> 1. Re: Google v. Oracle (Pamela Chestek)
> 2. Re: Google v. Oracle (McCoy Smith)
> 3. Re: Google v. Oracle (Richard Fontana)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Fri, 30 Apr 2021 13:08:39 -0400
> From: Pamela Chestek <pamela at chesteklegal.com>
> To: license-discuss at lists.opensource.org
> Subject: Re: [License-discuss] Google v. Oracle
> Message-ID: <6aabbf52-8179-90ba-41c9-b7fd8d333f70 at chesteklegal.com>
> Content-Type: text/plain; charset="utf-8"; Format="flowed"
>
> The patent claim also dropped very quickly out of the case at very early
> stages - I think there may have been one published opinion about the
> patent claims but it wasn't significant IIRC.
>
> I'm not sure what you mean by "check the case according to the free
> software permissions," but the case really has nothing to do with free
> software. Google did not claim to be using Java under the GPLv2
> w/classpath exception, they had copied a commercial version of Java and
> also had not complied with the OpenJDK license. The court therefore
> didn't have any reason to discuss a free software license.
>
> Pam
>
> Pamela S. Chestek
> Chestek Legal
> PO Box 2492
> Raleigh, NC 27602
> 919-800-8033
> pamela at chesteklegal.com
> www.chesteklegal.com
>
> On 4/29/2021 7:05 AM, Patrice-Emmanuel Schmitz via License-discuss wrote:
> > Just a candid question from someone that has not closely followed the
> > case.
> > The case moved from patent infringement?(original claim in 2010) to
> > copyright infringement: 1) are API copyrightable 2) was their use fair
> > or not?? The second question only was answered by the Supreme Court.
> > Did someone check the case according to the free software permissions
> > granted?by the library license (GPL-2.0 I presume)?
> > Patrice-Emmanuel
> >
> > Le?sam. 24 avr. 2021 ??22:16, Lawrence Rosen <lrosen at rosenlaw.com
> > <mailto:lrosen at rosenlaw.com>> a ?crit?:
> >
> > To: OSI License Discuss
> >
> > For those of you interested in the details of the Google v. Oracle
> > case and the arguments raised by the lawyers and the Supreme
> > Court, this is an excellent 1-hour summary:
> >
> > https://youtu.be/BDLTOwoSRNg <https://youtu.be/BDLTOwoSRNg>
> >
> > There is a 1-hour CLE credit if you want it. Please enjoy. /Larry
> >
> > Lawrence Rosen
> >
> > 707-478-8932
> >
> > 3001 King Ranch Rd., Ukiah, CA 95482
> >
> > _______________________________________________
> > The opinions expressed in this email are those of the sender and
> > not necessarily those of the Open Source Initiative. Official
> > statements by the Open Source Initiative will be sent from an
> > opensource.org <http://opensource.org> email address.
> >
> > License-discuss mailing list
> > License-discuss at lists.opensource.org
> > <mailto:License-discuss at lists.opensource.org>
> >
> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
> > <
> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
> >
> >
> >
> >
> > --
> > Patrice-Emmanuel Schmitz
> > pe.schmitz at gmail.com <mailto:pe.schmitz at gmail.com>
> > tel. + 32 478 50 40 65
> >
> > _______________________________________________
> > The opinions expressed in this email are those of the sender and not
> necessarily those of the Open Source Initiative. Official statements by the
> Open Source Initiative will be sent from an opensource.org email address.
> >
> > License-discuss mailing list
> > License-discuss at lists.opensource.org
> >
> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
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> ------------------------------
>
> Message: 2
> Date: Fri, 30 Apr 2021 10:34:38 -0700
> From: "McCoy Smith" <mccoy at lexpan.law>
> To: <license-discuss at lists.opensource.org>
> Subject: Re: [License-discuss] Google v. Oracle
> Message-ID: <02c301d73de7$1889c220$499d4660$@lexpan.law>
> Content-Type: text/plain; charset="utf-8"
>
> The patent claims went to trial (separately from the copyright claims) and
> there was a jury verdict of non-infringement as to all patent claims.
> http://www.groklaw.net/pdf3/OraGoogle-1190.pdf That decision was not
> appealed.
>
>
>
> From: License-discuss <license-discuss-bounces at lists.opensource.org> On
> Behalf Of Pamela Chestek
> Sent: Friday, April 30, 2021 10:09 AM
> To: license-discuss at lists.opensource.org
> Subject: Re: [License-discuss] Google v. Oracle
>
>
>
> The patent claim also dropped very quickly out of the case at very early
> stages - I think there may have been one published opinion about the patent
> claims but it wasn't significant IIRC.
>
> I'm not sure what you mean by "check the case according to the free
> software permissions," but the case really has nothing to do with free
> software. Google did not claim to be using Java under the GPLv2 w/classpath
> exception, they had copied a commercial version of Java and also had not
> complied with the OpenJDK license. The court therefore didn't have any
> reason to discuss a free software license.
>
> Pam
>
> Pamela S. Chestek
> Chestek Legal
> PO Box 2492
> Raleigh, NC 27602
> 919-800-8033
> pamela at chesteklegal.com <mailto:pamela at chesteklegal.com>
> www.chesteklegal.com <http://www.chesteklegal.com>
>
> On 4/29/2021 7:05 AM, Patrice-Emmanuel Schmitz via License-discuss wrote:
>
> Just a candid question from someone that has not closely followed the case.
>
> The case moved from patent infringement (original claim in 2010) to
> copyright infringement: 1) are API copyrightable 2) was their use fair or
> not? The second question only was answered by the Supreme Court.
>
> Did someone check the case according to the free software permissions
> granted by the library license (GPL-2.0 I presume)?
>
> Patrice-Emmanuel
>
>
>
> Le sam. 24 avr. 2021 ? 22:16, Lawrence Rosen <lrosen at rosenlaw.com <mailto:
> lrosen at rosenlaw.com> > a ?crit :
>
> To: OSI License Discuss
>
>
>
> For those of you interested in the details of the Google v. Oracle case
> and the arguments raised by the lawyers and the Supreme Court, this is an
> excellent 1-hour summary:
>
>
>
> https://youtu.be/BDLTOwoSRNg
>
>
>
> There is a 1-hour CLE credit if you want it. Please enjoy. /Larry
>
>
>
> Lawrence Rosen
>
> 707-478-8932
>
> 3001 King Ranch Rd., Ukiah, CA 95482
>
> _______________________________________________
> The opinions expressed in this email are those of the sender and not
> necessarily those of the Open Source Initiative. Official statements by the
> Open Source Initiative will be sent from an opensource.org <
> http://opensource.org> email address.
>
> License-discuss mailing list
> License-discuss at lists.opensource.org <mailto:
> License-discuss at lists.opensource.org>
>
> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
>
>
>
>
>
>
> --
>
> Patrice-Emmanuel Schmitz
> pe.schmitz at gmail.com <mailto:pe.schmitz at gmail.com>
> tel. + 32 478 50 40 65
>
>
>
>
>
> _______________________________________________
> The opinions expressed in this email are those of the sender and not
> necessarily those of the Open Source Initiative. Official statements by the
> Open Source Initiative will be sent from an opensource.org email address.
>
> License-discuss mailing list
> License-discuss at lists.opensource.org <mailto:
> License-discuss at lists.opensource.org>
>
> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
>
>
>
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> ------------------------------
>
> Message: 3
> Date: Fri, 30 Apr 2021 14:40:36 -0400
> From: Richard Fontana <rfontana at redhat.com>
> To: license-discuss at lists.opensource.org
> Subject: Re: [License-discuss] Google v. Oracle
> Message-ID:
> <CAC1cPGwhszzvObHMP4jp-fGBydUYEeiN=
> ANQFfV0LmBvmO5r+g at mail.gmail.com>
> Content-Type: text/plain; charset="UTF-8"
>
> On Fri, Apr 30, 2021 at 1:10 PM Pamela Chestek <pamela at chesteklegal.com>
> wrote:
> >
> > The patent claim also dropped very quickly out of the case at very early
> stages - I think there may have been one published opinion about the patent
> claims but it wasn't significant IIRC.
> >
> > I'm not sure what you mean by "check the case according to the free
> software permissions," but the case really has nothing to do with free
> software. Google did not claim to be using Java under the GPLv2 w/classpath
> exception, they had copied a commercial version of Java and also had not
> complied with the OpenJDK license. The court therefore didn't have any
> reason to discuss a free software license.
>
> I believe the availability of OpenJDK under the GPL was something
> Oracle talked about at trial, to emphasize that Google always had a
> "free" option, and was also noted at the various stages of appeal and
> in the SCOTUS oral argument, but yes it wasn't a direct issue in the
> case because at the time Google was using an Apache License 2.0
> implementation (including nominally Apache-licensed "declaring code").
>
> Justice Thomas seemed to allude to the GPL option in his dissent, in
> this comment (which among other things seems to conflate OpenJDK with
> Java SE):
>
> "To this end, Oracle created a work called Java 2 Platform, Standard
> Edition, which included a highly organized library containing about
> 30,000 methods. Oracle gave developers free access to these methods to
> encourage them to write programs for the Java platform. In return,
> developers were required to make their programs compatible with the
> Java platform on any device. Developers were encouraged to make
> improvements to the platform, but they were required to release
> beneficial modifications to the public. If a company wanted to
> customize the platform and keep those customizations secret for
> business purposes, it had to pay for a separate license."
>
> Richard
>
>
>
>
>
>
>
> >
> > Pam
> >
> > Pamela S. Chestek
> > Chestek Legal
> > PO Box 2492
> > Raleigh, NC 27602
> > 919-800-8033
> > pamela at chesteklegal.com
> > www.chesteklegal.com
> >
> > On 4/29/2021 7:05 AM, Patrice-Emmanuel Schmitz via License-discuss wrote:
> >
> > Just a candid question from someone that has not closely followed the
> case.
> > The case moved from patent infringement (original claim in 2010) to
> copyright infringement: 1) are API copyrightable 2) was their use fair or
> not? The second question only was answered by the Supreme Court.
> > Did someone check the case according to the free software permissions
> granted by the library license (GPL-2.0 I presume)?
> > Patrice-Emmanuel
> >
> > Le sam. 24 avr. 2021 ? 22:16, Lawrence Rosen <lrosen at rosenlaw.com> a
> ?crit :
> >>
> >> To: OSI License Discuss
> >>
> >>
> >>
> >> For those of you interested in the details of the Google v. Oracle case
> and the arguments raised by the lawyers and the Supreme Court, this is an
> excellent 1-hour summary:
> >>
> >>
> >>
> >> https://youtu.be/BDLTOwoSRNg
> >>
> >>
> >>
> >> There is a 1-hour CLE credit if you want it. Please enjoy. /Larry
> >>
> >>
> >>
> >> Lawrence Rosen
> >>
> >> 707-478-8932
> >>
> >> 3001 King Ranch Rd., Ukiah, CA 95482
> >>
> >> _______________________________________________
> >> The opinions expressed in this email are those of the sender and not
> necessarily those of the Open Source Initiative. Official statements by the
> Open Source Initiative will be sent from an opensource.org email address.
> >>
> >> License-discuss mailing list
> >> License-discuss at lists.opensource.org
> >>
> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
> >
> >
> >
> > --
> > Patrice-Emmanuel Schmitz
> > pe.schmitz at gmail.com
> > tel. + 32 478 50 40 65
> >
> > _______________________________________________
> > The opinions expressed in this email are those of the sender and not
> necessarily those of the Open Source Initiative. Official statements by the
> Open Source Initiative will be sent from an opensource.org email address.
> >
> > License-discuss mailing list
> > License-discuss at lists.opensource.org
> >
> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
> >
> >
> > _______________________________________________
> > The opinions expressed in this email are those of the sender and not
> necessarily those of the Open Source Initiative. Official statements by the
> Open Source Initiative will be sent from an opensource.org email address.
> >
> > License-discuss mailing list
> > License-discuss at lists.opensource.org
> >
> http://lists.opensource.org/mailman/listinfo/license-discuss_lists.opensource.org
>
>
>
>
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>
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> ------------------------------
>
> End of License-discuss Digest, Vol 106, Issue 8
> ***********************************************
>
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