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

[arglebargle_xiv]

Let me rephrase the lawyer's text into something more comprehensible to the masses:

Ladies and gentlemen, this is Chewbacca. Chewbacca is a Wookiee from the planet Kashyyyk. But Chewbacca lives on the planet Endor. Now think about it; that does not make sense! Why would a Wookiee, an 8-foot-tall Wookiee, want to live on Endor, with a bunch of 2-foot-tall Ewoks? That does not make sense! But more important, you have to ask yourself: What does this have to do with this case? Nothing. Ladies and gentlemen, it has nothing to do with this case! It does not make sense!

Look at me. I'm a lawyer working for a multibillion dollar software company, and I'm talkin' about Chewbacca! Does that make sense? Ladies and gentlemen, I am not making any sense! None of this makes sense! And so you have to remember, when you're in that jury room deliberatin' and conjugatin' the Emancipation Proclamation, does it make sense? No! Ladies and gentlemen of this supposed jury, it does not make sense! If Chewbacca lives on Endor, Google's victory will destroy the GPL!

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.

They don't know what they're talking about

[Anonymous Coward]

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

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.

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

[MightyMartian]

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.

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

[whoever57]

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.

Lawyers are today's hired guns. They do and say whatever is in their employer's interests, with little (or no) regard for the truth.

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

[trabby]

Not biscuit. It's a muffin

Not muffin. McMuffin. Try ordering a muffin in McDonald's and wait for the blank stare from the cashier.

I just carry a picture that matches the one on the cash register. Bonus, this will also work with a robot as long as it has a camera as one of its inputs...

Only problem is that even robots can not make a McMuffin that looks remotely like the picture they have in the store of said McMuffin.
It will just cause a system error that the poor mechanical soul will never recover from.

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

[Sun]

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:

1. How stable the API you are relying on?
2. How documented is it? In other words, how much do you need to see the source in order to understand how to use it?
3. How many different independent implementations are there of the same API? (even if all of them are also GPL)

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

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

[ultranova]

Only problem is that even robots can not make a McMuffin that looks remotely like the picture they have in the store of said McMuffin.
It will just cause a system error that the poor mechanical soul will never recover from.

If Skynet decides that human society is beyond saving because Skynet worked a McJob at McDonald's in it's youth, it's... kinda hard to argue, actually.

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.

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

[Kiwikwi]

The GPL has been tested in court numerous times, both in the US and in the EU.

Along with the Artistic License, it is actually the only open source license I know of that has been tested in court. It makes sense that there's not much to go to court over with a BSD-like license, but it'd be nice to have the Apache License or the Mozilla Public License tested.

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

[Immerman]

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.

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

[BitZtream]

LGPL covers the code that implements the interface, and allows for less restricted use. It covers the same thing as GPL, just like every other license, its just a different one. Its no more or less different from GPL than BSD or MIT, for instance.

Re: Losing Attorney is BSing

[Anonymous Coward]

GPL, you link to the API and distribute, you are required to provide source.

LGPL, you link to the API and distribute, you can keep your source closed.

GPL and LGPL, you re-implement the API, you can keep it closed source. That's actually the POINT of open source. If you're not willing the put the work in, you can share with others. If you put all the work in yourself, you can do whatever you'd like.

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.

Bullshit

[somenickname]

Re-implementing an API and wholesale lifting a GPL software package are not even vaguely related. And, the end part of her quote, where she proclaims doom and gloom if we don't all move to the cloud, is ponderous hyperbole. The is just scare tactic garbage from an attorney who wants to bait the waters before she takes on the appeal and charges Oracle millions of dollars for the privilege.

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:Bullshit

[queazocotal]

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.

Re:Bullshit

[Hognoxious]

So what is the downside?

Think of the poor unemployed yacht builders.

Re:Bullshit

[Fallen Kell]

I don't think you understand what happened in this case. API's have inherently always been allowed to be used essentially since the beginning of coding. A Judge and/or jury didn't rule that the the code in the Java was fair use to use, just the functional names. This retained the same working conditions that have existed for the last 30-40 years of code development, including the white/clean room techniques that have been used by virtually every major development studio, (including Oracle by the way). The underlying code is still protected, but you can't protect the names of the functions. I mean seriously, how many times have people written a function called "length" or "size" (hint, thousands of times).

Are we all suddenly suppose to pay royalties to the first one who called their function by that name? What about if someone wrote a program that then auto-generated creating billions of function names from every language, but each function was simply "return(1)"? Am I to get billions of dollars from every company in existence now for them infringing my copyright on all those function names?

In other words, your argument is ridiculous. The real copyright is and always has been on the specific implementation of the code, not what it is named.

Bullocks!

[a_n_d_e_r_s]

Never read such a stupid article. If oracle has won; alot of open source projects had been dead in the USA. In EU they had lived on since there APIs are not copyrightable because of interoperability.

Now they can continue to live even in the US.

As for the point that this makes it possible for people to steal open source code. It wont. Since it's always been possible to take open source code and reimplement it as closed code. Its never been forbidden before and thus this won't change that. APIs has never been seen as protected by the software industry before and its a sad state that USA has changed that.

Re:Bullocks!

[campuscodi]

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

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.

Stallman's defense of Oracle

[Anonymous Coward]

Oracle's loss is a huge threat to free software and the GPL. That's why Stallman has been campaigning on their behalf for years now, hanging out with Ellison on his private catamaran, writing op-ed pieces supporting Oracle's treatment of Java post-Sun acquisition, etc.

I'd post the links, but it's easy enough to find them with Google.

Oracle wants us to have crappy computers.

[headkase]

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.

Re:Oracle wants us to have crappy computers.

[NormalVisual]

. At the time IBM's BIOS was reverse-engineered they weren't even the best computers.

IBM's BIOS wasn't reverse-engineered. The source was available directly from IBM via the Technical Reference Manual. Phoenix and Compaq both merely did a clean-room reimplementation based on looking at the function call interfaces in the actual source code and what that code actually did, then writing a detailed set of requirements for the coders. No reverse-engineering was needed.

Re: Oracle wants us to have crappy computers.

[Bing Tsher E]

IBM's BIOS was not reverse engineered. The commented Assembly Language source code for the BIOS is published in the Technical Reference Manual which anybody could purchase.

Phoenix had to hire programmers to read the IBM source, write a human language specification, then hand that specification over to a seperate team to code their version of BIOS. Anybody on the first team, or anybody who had access to and read the published IBM source code was disqualified to work on the reimplementation.

In other words, IBM published their BIOS in commented human readable source code. The PC was in this regard among others, an open architecture.

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.

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.

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: Have to do more than "claim fair use"...

[bbn]

The judge did rule that interfaces are not copyrightable but that got overturned on appeal. He then asked the jury to decide if it was fair use. The jury voted yes to that.

Re:Have to do more than "claim fair use"...

[Trongy]

The judge (William Alsup) did rule that the java API were not copyrightable in the earlier case. The appeals court overturned this ruling. Hence the current case which was started on the basis that the API was copyrighted and the open question was about fair use.

Re:Nice Work.

[PopeRatzo]

As usual, great Slashdot "editor" work here

It's the first hot holiday weekend of the summer, so give 'em a break. They've probably been drinking since like 11am.

Oracle just trying to save face

[NimbleSquirrel]

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.

Re:Static creates a copy. COPY right

[raymorris]

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.