Open Letter to Sun Microsystems

On April 10, 2007, the Apache Software Foundation sent the following letter to Sun Microsystems regarding our inability to acquire an acceptable license for the Java SE 5 technology compatibility kit, a test kit needed by the Apache Harmony project to demonstrate compatibility with the Java SE 5 specification, as required by the Sun specification license for Java SE 5.

We have created a FAQ to provide background information on this issue.

Dear Jonathan,

My name is Geir Magnusson Jr, and I'm the officer of the Apache
Software Foundation (ASF), a 501(c)3 public charity, charged with
matters relating to our participation in the Java Community
Process (JCP).  I am also the VP of the Apache Harmony project.
In this matter I represent the ASF.

Since August 2006, the ASF has been attempting to secure an
acceptable license from Sun for the test kit for Java SE.  This
test kit, called the "Java Compatibility Kit" or "JCK", is needed
by the Apache Harmony project to demonstrate its compatibility
with the Java SE specification, as required by Sun's specification
license.  The JCK license Sun is offering imposes IP rights
restrictions through limits on the "field of use" available to
users of our software.

These restrictions are totally unacceptable to us.  As I explain
below, these restrictions are contrary to the terms of the Java
Specification Participation Agreement (JSPA) - the governing rules
of the JCP - to which Sun is contractually bound to comply as a
signatory.  The ASF has a proud history of support for open
software ecosystems in which commercial software can flourish.
However, Sun's JCK license protects portions of Sun's commercial
Java business at the expense of ASF's open software.  It prevents
our users from using Apache software in certain fields of use.
Such implicit or explicit threats of IP-based aggression give one
actor overwhelming commercial advantages over the other
participants in the ecosystem.  In an open ecosystem, it must be
the case that the necessary IP to implement a specification can be
secured independently from the specific commercial interests of
any one actor in the ecosystem, which is the basis of our
objection to your offered terms.

Your restrictions violate the basic protections of the JCP, which
ensure both that a) specification leads and expert groups produce
open specifications, and b) anyone can implement and distribute
compatible implementations of those specifications without fear of
obligation to the specification lead or members of the expert
group for any "necessary IP" needed to implement that
specification.  Specifically, the JSPA requires that

  1) a specification lead cannot "impose any contractual condition
     or covenant that would limit or restrict the right of any
     licensee to create or distribute such Independent
     Implementations" (section 5.C.III)

  2) a specification lead must license all necessary IP
     royalty-free to any compatible implementation of a
     specification (section 5.B)

Your terms are attempting to circumvent both of these
requirements.

Besides holding back the Harmony project - a community-led open
source project of the ASF since May of 2005 - this failure to
comply with your contractual obligations poses serious risk to the
credibility of the JCP as an open standards organization, and the
reputation of Java itself as an open technology.  We believe that
this also threatens the general cooperative nature of the
commercial Java ecosystem, puts at risk the long-standing positive
relationship between Sun and the ASF, and probably between Sun and
the broader open source community - all of which is key to the
continued growth of Java.

Beyond the obligations of the JSPA, these limitations are also
contrary to Sun's public promise that any Sun-led specification
would be fully implementable and distributable as open source/free
software.  It shouldn't have to be mentioned that "fully
implementable" includes passing the JCK, as required by the
specification license.  To this end, limitations on field of use
for our users is contrary to the basic principles of open source
licensing, and therefore these limitations would prevent
distribution under any open source license, including our own.

Our objections to the offered license are clear and valid.  The
situation we are facing is grossly in conflict with the basic IP
philosophy of the JCP, the concept of Java as an open
standards-based ecosystem, Sun's public promises to the free and
open source communities, and Sun's contractual obligations as a
specification lead under the JSPA.  The JCP was clearly designed
to prevent any single actor from being able to exhibit this sort
of market control.  Additionally, it is contrary to both the
spirit and letter of open source, the respect of which is a key
element in Sun's stated business strategy.

Through Apache Harmony, the ASF is implementing Java SE in good
faith, with the understanding that Sun as the specification lead
will reciprocate.  Our intention has always been to produce a
certified compatible implementation of Java SE distributed under
the Apache License.  To do so, we need the JCK.

We expect you to offer an acceptable, JSPA-compliant license to us
within 30 days, or provide a public explanation of why you cannot
do so.

We look forward to your response.

Geir Magnusson Jr.
VP, Java Community Process
Apache Software Foundation
geirm at apache dot org