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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.
This is plain double-speak. If Oracle had their way they'd kill GPL software. Innovation revolves around an application programming interface. The API is the "shape" of the program. The code inside the shape is the implementation. The GPL revolves around the implementation and has nothing to say about the shape. If shapes were always copyrightable then that would absolutely kill innovation. All of a sudden if you used someone else's shape in a way they didn't like they could totally shut you down with just the threat of a lawsuit - not everyone has deep pockets to fight that. Copyrighted API's would become just another kind of currency much in the way software patents already are. If you can't beat them with money then beat them, forced licensing, with other kinds of currency. In the Oracle world we wouldn't even enjoy the powerful computers we have today. Decades ago Phoenix clean-room reverse-engineered IBM's BIOS and made the same shape with a different implementation. If that shape had never been open we would have never experienced the rapid advancement of a bazaar that component manufacturers can revolve around. We would have been stuck with IBM's will and computing would have stagnated because they would not necessarily have had an interest in advancing it as much as competition does. At the time IBM's BIOS was reverse-engineered they weren't even the best computers. There were others that were much better like the Commodore Amiga, however, when the ecosystem around an open BIOS happened then the feedback effects from that made it win. Without a doubt.
Shh.
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.
Then what is the LGPL needed for?
It's an inherent part of their case that they are intimately related.
There is no bright-line seperating out APIs and code.
And indeed, they won a partial victory on this, in that the decision states that there can be _unfair_ use of APIs.
Their argument is simply that this judgement means that another judge (because there is no bright line) could determine that using (say) half or 90% of the linux kernel against GPL restrictions could be 'fair use'.
Should this be bullshit - yes.
Is it - well - it relies on courts acting rationally.
This, I suspect, is going to form a part of their appeal, a sort of IP version of "what about the children?", except this variant is called "what about the GPL?"
This is about interfaces, not their implementation, and no one is challenging that code can be copyrighted. But I get it, maybe the next judge will be the right kind of fucking moron for Oracle to gain a victory.
The world's burning. Moped Jesus spotted on I50. Details at 11.
Are we supposed to believe that Oracle really had the best interests of the Open Source community at heart? Are we really supposed to believe that this case was all about Oracle's altruistic intentions instead of a $9Billion payday??
Now that they have lost this particular legal battle, Oracle are just trying to save face in front of the Open Source community. This lawsuit has alienated a massive segment of the developer community. Arguably that alienation began the moment Oracle acquired Sun, and this lawsuit simply confirmed many people's worst fears. It is clear, from comments in the trial, that Oracle only acquired Sun to have total control over Java, and anything related to it. Now that this lawsuit has confirmed that Oracle don't have the control they thought they did, their only option is to try and sway public opinion with the developer community. I don't see how that will start to happen unless Oracle abandon any appeal and let this case rest.
Hurst said that the whole Open Source community is in jeopardy because this will allow anyone to ignore copyright on source code and claim 'fair use'. Sure, there may be a possibility that 'fair use' could be pose a risk to enforcing the GPL, but the precedent in this case is limited because it specifically involved APIs. That hardly means that the GPL is now worthless. What is certain is that all developers everywhere, including the Open Source community, would have been in far greater jeopardy had Oracle been victorius.
If Oracle had been victorius, then Annette Hurst would have been busy firing off dozens of other API copyright lawsuits instead of writing Op-ed pieces on ArsTechnica. (The only thing that surprises me about this article is that ArsTechnica were so willing to publish something from such a clearly biased source.) Given that this was published so quickly after the trial, I find it hard to believe that Hurst penned this in her spare time after the trial as her personal opinion instead of the opinion of her client. To me it just seems like a lame 'Plan B' approach to sway public opinion for her client while they work on an appeal.
To be clear, I don't for one second believe that Hurst and Oracle have the best interests of the Open Source community in mind. I also don't believe that this is just about making money out of Google (although that is the starting point). This is about Oracle trying to regain total control over Java and anything related to it. The are billions of devices and programs that use Java or make use Java APIs (and not just Android devices), so the potential licensing revenue stream would be massive for Oracle. This is about Oracle trying to put an Open Source genie back in the bottle, and represents a far greater threat to the GPL than fair use ever will.
First of all, here is RMS's take on this question. I should point out that I do not agree with his analysis.
As a counter example, I like people to consider NDISwrapper. No one in their right mind would claim that just because the user linked a proprietary closed source network driver with a GPL implementation of NDIS, that somehow turns the driver written by Broadcom for Windows into a derivative of the Linux kernel.
When I consulted to clients about the issue, I suggested the following criteria, under the claim that it is not industry standard, but it is defendable in court:
I claim that these are good criteria to explaining how independent are the APIs from their implementation, and accordingly, how much copyright protection they deserve.
Shachar
Well a statically compiled binary, which contains a copy of the library, is obviously a derived work, no question about it.
Judge Alsup ruled that using an API dynamically (and even re-implementing it) isn't, because the library's API can't be copyright protected anyway. The appeals court disagreed in this case. So it's debatable so using an API via dynamic linking. It may come down to the specific facts of the case, or the mood of the judge or jury.
On to fair use. A key consideration in fair use is how much of the original work is used. If you copy the whole thing verbatim, it's generally unlikely to be fair use. If you use 1% of the original, it's much more likely to be fair. Static linking copies the entire function verbatim. Dynamic copies only the header line. Not much different than copying the full text of a book versus copying only the chapter titles.
With dynamic linking, there's an argument to be made either way. Different courts may decide different cases of dynamic linking differently. Static linking, verbatim copying of the entire implementation - that's not even arguable, not at all.
Actually, no - their first allegiance is supposed to be to the court, and the pursuit of truth. There was even a high profile case recently where the judge sentenced the lawyers to regular ethics course for blatantly lying to the court.
Now in practice... they're supposed to at least keep up appearances. Which seems to be what most ethics courses boil down to anyway.
--- Most topics have many sides worth arguing, allow me to take one opposite you.