Op-ed: Oracle Attorney Says Google's Court Victory Might Kill the GPL (arstechnica.com)

Annette Hurst, an attorney at Orrick, Herrington & Sutcliffe who represented Oracle in the recent Oracle v. Google trial, has written an opinion piece for Ars Technica in which she urges developers and creators to not celebrate Google's win in the hard-fought copyright case as the decision -- if remains intact -- is poised to make them "suffer" everywhere and also the free software movement itself "now faces substantial jeopardy." As you're aware, in a verdict earlier this week, a federal court announced that Google's Android operating system didn't infringe on Oracle-owned copyrights because its re-implementation of 37 Java APIs is protected by "fair use." Hurst writes: No business trying to commercialize software with any element of open software can afford to ignore this verdict. Dual licensing models are very common and have long depended upon a delicate balance between free use and commercial use. Royalties from licensed commercial exploitation fuel continued development and innovation of an open and free option. The balance depends upon adherence to the license restrictions in the open and free option. This jury's verdict suggests that such restrictions are now meaningless, since disregarding them is simply a matter of claiming "fair use." It is hard to see how GPL can survive such a result. In fact, it is hard to see how ownership of a copy of any software protected by copyright can survive this result. Software businesses now must accelerate their move to the cloud where everything can be controlled as a service rather than software. Consumers can expect to find decreasing options to own anything for themselves, decreasing options to control their data, decreasing options to protect their privacy.

Comments

Multiple Award Winning

[dcollins]

"Best Sour Grapes of May 2016"

"Best Nail in Coffin for Confidence in Legal Judgement"

Re:Multiple Award Winning

[solidraven]

API description doesn't equal actual code though. So yeah this is a lot of drama for a list of supported functions and methods essentially. The majority of the work (the code behind the API) is still protected. So bugger off.

Re:Multiple Award Winning

[phayes]

No, the point the lawyer for Oracle is trying to make is a distinction that does not exist.

Oracle has been trying to make a case that API=Code so others cannot copy their API's without a licence. For everyone else on the planet, API!=code and APIs are free to use ether because they are not copyrightable (as the judge originally ruled and I agree with personally) or because they are fair use.

Now that the Java APIs used in Android have been determined by the jury to have been fair use, Oracle is now attempting to make the case that because (in their opinion) API=Code, if APIs are fair use then so is ALL code, including the GPL.

Nobody except Oracle & co believe that API=Code so the woman has no point.

Re:Multiple Award Winning

[Kiwikwi]

It doesn't matter if designing an API is hard... at least not in the US, which does not follow the sweat of the brow doctrine.

It does matter if API design involves substantial creativity. If the API design is not simple and obvious, and if the work to design the API is a substantially creative endeavor, the API becomes eligible for copyright, and indeed, this is what the courts have now found (at least in the specific case of the Java APIs). As much as I don't like the idea of copyrightable APIs, I can't really fault the ruling.

Fortunately, the court has now also ruled that using APIs is fair use, which is an essential ruling from an interoperability PoV. And despite this op-ed piece, I'm certain that most companies will be relieved that there are limits to Oracle's absurd attempts to squeeze money of out any company that use Java.

Personally, I'm just happy that the company I work for chose C#/.NET as the scripting platform for customers, not Java. It was touch-and-go there for a while, but Microsoft and .NET has turned out to be much more trustworthy platform stewards than Sun/Oracle and Java.

Losing Attorney is BSing

[Anonymous Coward]

There never was copyright on the interface code as it is required to function. This was about Oracle bean counters trying to make their balance sheet look better through shenanigans rather than actually doing real work.

This case was not about the core code which is still covered fine by copyright and the GPL.

These comments are just spin.

Re:Losing Attorney is BSing

[Anonymous Coward]

These comments are just spin.

Precisely. We don't need some ignorant attorney telling us, the ones who write the code, what our business or interests are regarding software. We don't need copyright to help us share or get paid for our work. She doesn't get it. The GPL was a hack of the copyright laws designed to prevent legal interference in the affairs of the open source movement and to neutralize a legal weapon so that it couldn't be used against us to prevent sharing. It was not necessary to enable sharing. If copyright did not exist, software would still be shared freely and the GPL would have been largely unnecessary. There have been a few minor incidents where copyright law was used successfully to force sharing of GPL code from an otherwise unwilling party, but in my opinion none of these cases revealed anything but banal or poorly written additions to the original GPL code, certainly nothing of lasting importance that wouldn't have been shared otherwise. To summarize, copyright is mostly a hindrance and rarely a help to the open source movement. The GPL mostly exists to ensure that a-hole attorneys, like Annette Hurst, leave us alone. We share code because we ourselves benefited from that sharing when we were learning our craft and it would be an act of disrespect and deep ingratitude to refuse to reciprocate when the time came.

Re:They don't know what they're talking about

[ShanghaiBill]

It's the implementations that they're protecting with the GPL, not the interfaces.

She is a lawyer, not a programmer. What she is saying is nonsense, but it is grammatically correct, and succinctly encapsulates Oracle's outrage at the verdict.

Parade of horribles

[DRJlaw]

Consumers can expect to find decreasing options to own anything for themselves...

Like commercial software, which you do not own but merely use under license...

...decreasing options to control their data...

Like commercial services, which grant themselves increadibly broad licenses to everything that you post, store, and transmit, usually for far longer than merely the duration that you use the service...

... [and] decreasing options to protect their privacy.

Like commercial software and servicves, which report back telemetry data, raid amazing quantities of your PII for the services' own benefit (well I'll just be uploading that contacts list for you...), and generally function as your own personal stalker for the benefit of the service and many other third parties (dear advertising partner, our user is a 18-34 year old female who is 4 months pregnant and just about to walk past your storefront).

Yeah. Having someone reimplement a GPL-licensed software product by mirroring the APIs is certainly going to lead to things worse than that.

Re:Bullshit

[dwywit]

"Software businesses now must accelerate their move to the cloud where everything can be controlled as a service rather than software. "

I think it's less hyperbole and more a sign of what Oracle is considering. She's let the cat out of the bag - Oracle must be exploring options to charge even more for their products.

Re:Bullocks!

[campuscodi]

It's not a stupid article. It's a stupid lawyer's opinion.

Complete utter nonsense!

[Xtifr]

Before Oracle v. Google, everyone assumed (based on extensive legal precedent) that APIs were not subject to copyright at all. Yet the GPL was just fine. Why would the GPL be threatened all of a sudden just because one more API turned out to be copyable?

The only tangible result of this case has been a very slight strengthening of copyrights, since the appeals court rules that APIs might be copyrightable under certain circumstances. How does strengthening copyright weaken a license that relies on copyright?

This is either monumental stupidity, or outright shilling. Hanlon's razor suggests I ought to go with the former, but I'm going to wait and see.

Re:Complete utter nonsense!

[ragahast]

Are you saying that the only code protected by copy-write is the code inside the function curly braces, and not the code outside (i.e. the functions, parameters, returns).

Even in C, this wouldn't be the case, because some code that actually does stuff is outside functions. But your parenthetical is almost right - the function names, and parameter and return types.

What about expressive languages that blur the lines between function declarations and executable code? What if significant code is all written in a macros, where there is no difference?

There is no difficulty here. The specification of what must be given to the program and what will be returned from the program. Everything else can be subject to copyright.

As programmer it makes no sense to me.

Think about what the world would be like if interfaces had been copyrightable. The precedent comes from Borland v. Lotus, where it was ruled that you can't be granted a monopoly on interfaces like "File > Print." One immediate consequence would have been that every program we use would have to have something different from a set of drop down menus containing the names "File" and "Print," where a user interaction and document input lead to a print command. Of course, this would extend to every way in which we interact with standard desktop applications, but also to how you choose to name your functions and choose their signatures. It already sucks that any cool algorithm you come up with might be subjected to litigation attempts based on patents. But now we might not be able to use the names e.g. of other browsers' non-standard CSS either. We'd have to search through every preexisting program to make sure the function names are unique, etc.

Further, the most critical interfaces in modern computing are those defined by programming languages and operating systems. For many languages, one would need to obtain a license in order to write a compiler/interpreter - so no Octave or Scilab, no OpenJDK, many fewer C, C++ and FORTRAN compilers. No UNIX-like operating systems.

As a programmer, what's really terrifying (and makes no sense), is that my own independent developments, let alone attempts at compatibility, might be restricted by government-enforced monopolies on ideas.

Re:Oracle wants us to have crappy computers.

[ShanghaiBill]

The source was available directly from IBM via the Technical Reference Manual.

That brings back some sweet memories. I saved up and bought a TRM for $100, which was a lot of money back then. I remember reading every line of the source code, all in 8086 asm. I figured out plenty of tricks and shortcuts by jumping into the BIOS code instead of going through interrupts, and tweaking where the BIOS stored variables. Good times.

Re:They don't know what they're talking about

[WarJolt]

She is a lawyer, not a programmer. What she is saying is nonsense, but it is grammatically correct, and succinctly encapsulates Oracle's outrage at the verdict.

No where near as outraged as all the OSS developers are at all of Oracle's patent trolling over the years, so what was she thinking trying to co-opt them?

We love copyright law, you're not going to beat us at our own game. Oracle should stick to abusing patent law. They'll still lose. Now they also look like idiots.

Re:Bullocks!

[Anonymous Coward]

Now they can continue to live even in the US.

The damage has already been done. The federal circuit court ruling, namely that APIs are copyrightable, still stands. By arguing fair use Google won the consolation prize in this case, but fair use must be argued each time on a case-by-case basis . It's a fig leaf that offers little protection against the aforementioned court ruling. Google or anybody else could be sued again tomorrow for copyright infringement of a different API in a different instance and they would have to defend fair use all over again each and every time they were sued. Google might be able to afford that, but small companies and open source projects cannot.

Re:They don't know what they're talking about

[Dahamma]

No, that doesn't make sense, and it doesn't change anything. It's not about libraries, it's about interfaces. You could create you own library using the same function names/signatures, but you can't use someone else's code beyond that.

Re:They don't know what they're talking about

[Dahamma]

Good point - and if you really think about it, that's the way it SHOULD be. If we prevented the case you describe, all emulators like WINE, MAME, etc would not be possible. It goes all the way back to DR DOS, etc. I think it's pretty clear that the open source community has gained SO MUCH MORE from being able to reverse engineer interfaces than any sort of "workaround" of GPL-like library licenses. Linux itself was based on UNIX/POSIX. If clean-room implementation of interfaces weren't fair game it would never have existed!

Re:They don't know what they're talking about

[JaredOfEuropa]

A lawyer's allegiance is not to the truth but to their clients. That is their role in the legal system.

Re:They don't know what they're talking about

[TheRaven64]

The real stupidity from Oracle is that they didn't realise how dangerous it would be to win the lawsuit. If they had come up with a verdict that APIs were covered by copyright and implementations were not fair use, then life would have been very difficult for them. Remember the SCO lawsuit? Now imagine what a similar lawsuit would cover if all of the APIs in POSIX (and the C/C++ specifications) were copyrighted by the first person to propose and implement them. Solaris would be dead in the water, as would most other UNIX clones.