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Oracle subpoenas Apache in search of Google smoking gun

Trawls for Android Java violations

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Oracle is going after the Apache Software Foundation and its open-source version of Java to find the smoking gun it clearly believes will prove Google deliberately violated patents and copyrights it owns on Java.

The database giant hit the open source group on May 2 with a subpoena demanding they surrender a raft of communications with Google, plus other documents on the source code of ASF's Project Harmony, Android, and the licensing of Java Standard Edition (Java SE).

Harmony is ASF's implementation of Java SE under an Apache license. The official Java SE from Oracle is under a GPL license. The Dalvik virtual machine on Google's fast-growing Android mobile platform implements a subset of Harmony: the class libraries.

According Oracle's subpoena, the giant has demanded documents that discuss Harmony's source code; licensing, IP and revenue on Google's Android; the ASF's failed attempt to get a Java SE technology compatibility kit (TCK) license from Sun and Oracle; and discussions on the "need for or wisdom of obtaining any license" from either Sun or Oracle.

Oracle has so-far avoided dragging the ASF and Harmony into its suit against Google and Android, filled in August of last year.

Oracle has asked that that ASF hand over: "Documents regarding the actual or potential use or infringement of Java technology, patents, copyrights or other intellectual property rights by Google, Android or the Open Handset Alliance."

In other words, Oracle wants written proof that Google and ASF knew there were restrictions on what Google could do with Harmony in Android and that people looked for ways to bend the rules or just break them.

ASF has until May 13 to produce the documents. In a blog post, Apache said it would comply, but put a dampener on any hope Oracle might unearth a smoking gun. "As an open development group the majority of our documents are already publicly available," the group said here.

Having ignored ASF so far, it now looks like Oracle wants to exploit the fact that it refused to grant Harmony a Java SE TCK. Oracle blocked Harmony from using the Java SE field of use restrictions. As a Java SE implementation, Harmony is meant for the desktop but Android is on mobile, and Oracle's already got Java for mobile, the less popular Java Mobile Edition (Java ME).

Oracle and ASF had a huge falling out over the Java SE TCK issue. Having blocked Harmony, and following a very public war of words on the subject, Apache walked out of the Oracle controlled Java Community Process (JCP) in protest. Apache claimed Oracle violated the rules of the JCP by denying the license and flamed the JCP body, saying it was no longer an open specification process and is dominated by the commercial concerns of one company: Oracle.

Oracle also claims that Android's class libraries and documentation infringe on its copyrights, and that approximately one-third of Android's API packages are "derivative" of Oracle's copyrighted Java API packages.

Oracle's claims are not clear cut, however, and while Oracle has pulled out a snippet of code it says proves violation, the jury in the court of public opinion is still out.

Google has pointed that out Harmony is a clean room, open source implementation while other parts of Android, including portions of Dalvik, were independently developed. Apache makes it clear that the code in Oracle's filing is not from Harmony.

Now, Oracle has deployed a broad net to trawl for comments, observations, suggestions, off-hand remarks or outright statements in communications between Google and ASF Oracle hopes will prove its case that copyrights and trademarks have been infringed and that there was intent.

Oracle wants: "Documents reflecting all communications between Google and Apache (whether nor not through the Open Handset Alliance ) concerning any license or other agreement, any intellectual property issues, or any compensation or revenue relating to Android, including all communications regarding Linux, Harmony, the Free Software Foundation's General Public License, and the Apache Software License."

You can read Oracle's subpoena here (warning: PDF).

Bootnote

Back when SCO was suing IBM over Linux, the Utah pariah – like Oracle – showed code it claimed proved its copyrights and patents had been violated. Journalists and analysts it showed the snippets under NDA came away convinced SCO had a case. The US courts decided SCO didn't. The point is: Showing written lines of code doesn't actually prove anything in law. It's theater intended to influence the debate and build support for the litigant's case.

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