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Oracle tries to rewrite history for Sun and alter Java's future

The Oracle v. Google case is about copyright, patents, and the intricacies of the open-source world. But it's also about Oracle trying to get a do-over for decisions made by Sun's executive management.

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

During testimony at the Oracle v. Google trial last week, former Sun CEO Jonathan Schwartz and co-founder and Chairman Scott McNealy gave conflicting views. Schwartz maintained that as long as Google's Android mobile platform didn't call itself Java or use any of the branding, it was in the clear. McNealy disagreed.

• Oracle-Google trial puts ex-Sun execs on opposite sides

• Full coverage: Oracle v. Google lawsuit

Given that Sun didn't take Google to court, Schwartz, who was CEO from 2006 until 2010 when Oracle took over the company, apparently convinced McNealy and the board of directors that suing Google wasn't the best choice among the alternatives at the time for dealing with the Google's non-Java-compatible Android platform.

It's hard to imagine that the subject of  Google and Android wasn't an issue for McNealy and the board. McNealy certainly wasn't a big fan of Google in the months before Android was publicly introduced.

In a March 8, 2007 e-mail to Schwartz, he wrote: "The Google thing is really a pain. They are immune to copyright laws, good citizenship, they dont share. They dont even call back."

In addition, Sun wasn't happy about the talent brain drain, with several of the top Java engineers joining Google to work on Android.

Schwartz admitted in his testimony that he wasn't pleased with Google's avoidance of a Java license or a partnership that would help Sun's flagging fortunes. "We didn't like it, but we weren't going to stop it by complaining about it," Schwartz said.

"Imagine for a moment if Google selected Microsoft Windows," Schwartz added, in explaining Sun's thinking about the Android situation. "We saw a handset bypass our brand and licensing restrictions...we decided to grit our teeth and support it so anyone supporting it would see us as part of the value chain." 

The launch of the iPhone on June 29, 2007, with its own proprietary platform and emerging ecosystem, wasn't good news for Sun's Java colonization plans.

A chess game, but hardly black and white
It's difficult to know what really went on in the Sun and Google camps as they played out their chess game with Android and Java serving as the board pieces. The primary actors are not talking much outside of the courtroom, citing the ongoing litigation and confidentiality agreements. 

The e-mails and documents put into evidence in the trial paint a picture of Google practicing some sleight of hand about the need for a Java license and Sun being displeased with Google's bobbing and weaving but unable to find a way the bring the company, including then-Google CEO Eric Schmidt -- also the former Sun CTO who was deeply involved in the early development of Java - into the Java tent.

In the end, Google was willing to pay Sun to license Java, but under terms that would blow up Sun's business model. In his testimony, Android chief Andy Rubin said that Google wanted Sun to "throw away their standard license, because it isn't what we're asking for, and they needed to develop a new license that was specifically what we're asking for."

Rubin wanted Sun to make Java available for free to the world as part of the Android platform, and in return Google would pay Sun "a little bit of money to do that, so you guys can go and create some derivative of your business model." The "little bit of money" was $28 million to $34 million, which wasn't an attractive proposition for Sun if it was basically giving away its ownership and stewardship of Java.

Even as late as August 10, 2010, just before Oracle launched its lawsuit, Google was still thinking about licensing Java from Sun. An e-mail to Rubin from Tim Lindholm, a member of the original Sun Java team and the architect of the Java 2 Micro Edition who joined Google in 2005, showed that Google co-founders Larry Page and Sergey Brin wanted an investigation of what technical alternatives to Java existed for Android and Chrome.

"We've been over a bunch of these, and think they all suck. We conclude that we need to negotiate a license for Java under the terms we need," Lindholm wrote.

In court, Oracle lawyer David Boies asked Lindholm whether the license in the document was from Sun. Lindholm said, "No."

"Was it a license from some other company," Boies asked. "No," Lindholm responded.

"Was it a license from anybody?" Boies asked.

"It was not a license from anybody," Lindholm said.

"I have no further questions," Boies said, ending his examination.

McNealy opens up
Outside of the courtroom, McNealy has been talking to the press.

In an interview with Bloomberg TV on Monday, McNealy said that Sun did ask Google for a license, as far as he can recall. That is evident from the e-mails discussed in the trial. He pointed to the 1,100 pages of documentation associated with the 37 Java APIs that Oracle is claiming are copyrighted (it was actually 11,000 pages).

"If the creator of a wall plug writes 1,100 pages of  specifications on how that wall plug operates, and you use that documentation to plug into that wall, then maybe you stepped on some copyright," McNealy said in articulating his view on copyrights.

"Whoever owns the technology, whoever created it, can decide to make it free, open or licensable or not," McNealy said.

It seems that Sun made those decisions, and also a decision not to sue Google over Java, prior to Oracle coming into the picture. And, while Java creator James Gosling has said the patent suits are not in Sun's DNA, Sun did successfully sue Microsoft twice, once for a $20 million settlement involving infringing on Java intellectual property, and in 2004 for a patent and antitrust suit against Microsoft, resulting in a $1.95 billion payment to Sun.

In a blog post titled "Good Artists Copy, Great Artists Steal," from March 9, prior to Oracle suing Google on August 12, 2010, Schwartz made clear his business philosophy on open-software, patents and lawsuits:

I understand the value of patents -- offensively and, more importantly, for defensive purposes. Sun had a treasure trove of some of the internet's most valuable patents -- ranging from search to microelectronics -- so no one in the technology industry could come after us without fearing an expensive counter assault. And there's no defense like an obvious offense.

But for a technology company, going on offense with software patents seems like an act of desperation, relying on the courts instead of the marketplace. See Nokia's suit against Apple for a parallel example of frivolous litigation -- it hasn't slowed iPhone momentum (I'd argue it accelerated it). So I wonder who will be first to claim Apple's iPad is stepping on their IP... perhaps those that own the carcass of the tablet computing pioneer Go Corp.? Except that would be AT&T. Hm.

Having watched this movie play out many times, suing a competitor typically makes them more relevant, not less. Developers I know aren't getting less interested in Google's Android platform, they're getting more interested -- Apple's actions are enhancing that interest.

Between Apple and Google, carving out their independent futures and the smartphone market, and Microsoft's new mobile platform efforts, Sun and its mobile Java platform are getting left behind. Oracle is hoping that it can regain some dignity and revenue for Sun from its acquisition of Sun for $7.4 billion, in taking Google to court.