When the lawyers speak out hilarity ensues: Oracle v Google

Profile picture for user gonzodaddy By Den Howlett May 27, 2016
Summary:
A lawyer has taken to LinkedIn to have a go at Google and frighten developers. It's not the best use of a lawyer's time.

fotolia scales justice

There has been much media attention to the copyright fight between Oracle and Google. For the most part, readers should not be concerned because this is one of those things that mostly impacts developers. But - if you have developers in your midst (and we do) then it matters a lot. Here's the short version of what's happening and where we stand today:

When Oracle acquired Sun in 2010, it also acquired the rights to the Java language. Sun operated most of Java as open source. When Google picked up the development of Android, its mobile platform, in 2005, Android included the implementation of some APIs for the Java SE Platform. Google negotiated with Sun about licensing and partnering but those negotiations never came to anything. After the acquisition, Google and Oracle continued negotiating but couldn't come to an agreement. Oracle sued Google for copyright and patent infringement in August 2010. After a certain amount of back and forth in various courts, this week, a fresh court found that Google's use of certain APIs represented 'fair use' under the law, effectively blowing away Oracle's claim for $9 billion in various fees. Oracle is likely to appeal.

In a statement to Ars Technica:

Google said in a statement that its victory was good for everybody. "Today's verdict that Android makes fair use of Java APIs represents a win for the Android ecosystem, for the Java programming community, and for software developers who rely on open and free programming languages to build innovative consumer products."

Continuing...

"We strongly believe that Google developed Android by illegally copying core Java technology to rush into the mobile device market. Oracle brought this lawsuit to put a stop to Google's illegal behavior. We believe there are numerous grounds for appeal and we plan to bring this case back to the Federal Circuit on appeal," Dorian Daley, Oracle's general counsel, said in a statement.

The bottom line is that APIs are still copyrightable (at least in the eyes of one court) and therefore can be used to extract fees for use. We think that is mostly OK where the copyright holder operates a platform from which they cannot easily earn revenue but in the end, it is up to the developer to decide if there is to be a fee paying arrangement and what form that should take and under what licensing terms. Many developers prefer to open source APIs on the theory that the more the API is used, the better it is for the platform upon which it is being used. Regardless, right now, the law seems clearer. Why does this matter?

If you think that using an API to call upon other code is free to use and subsequently discover that it is not, then you will likely get sued. This creates a lot of uncertainty for developers who have, naturally, been following the case. Here is Ars Technica's detailed breakdown of why this matters and how the case unfolded.

The lawyer speaks

annette hurst
Annette Hurst

Out of the blue and earlier today, Annette Hurst, who is a lawyer with the firm that Oracle used to sue Google and is on the brief for that case decided to take to LinkedIn on the topic. My eyebrows shot up because this is quite unusual. I've listened to Oracle lawyers opine in the past and and I can tell you they pull no punches, liberally dosing the conversation with pejorative language like 'illegal' and 'criminal.' This occasion is not much different only this time there is a twist. What do you make of this opener?

The developer community may be celebrating today what it perceives as a victory in Oracle v. Google.  Google won a verdict that an unauthorized, commercial, competitive, harmful use of software in billions of products is fair use.  No copyright expert would have ever predicted such a use would   be considered fair.  Before celebrating, developers should take a closer look.  Not only will creators everywhere suffer from this decision if it remains intact, but the free software movement itself now faces substantial jeopardy.

Did I hear the expression FUD! yelled from the back of the peanut gallery? Then you'd be right. How about this?

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 distribution fuel continued development and innovation of an open and free option.

This is nonsense of the first order. Any critical examination of a software vendor's accounts will tell you that the licensing fees don't fund R&D. Not even close when all other costs are taken into account. It's the maintenance fees that pay for R&D and produce most, if not all the profit. And for what it's worth I've never ever heard a software executive talk about free software in this manner. Moving on:

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 licensed as 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.

GPL will be just fine. Richard Stallman saw to that years ago.

We already know that some companies are using cloud and software licensing to restrict or remove users' rights (Tractor-as-a-Service anyone?) but to state that consumers have a right to own as it relates to software is twisted thinking of the first order. Software developed by one company is never sold to anyone except under a usage arrangement. That argument went away sometime around 1988 when I discovered that 'buying software' actually meant 'buying a right to use.'  But that's not what this is about. It's about a specific license and APIs.

I'll save the best for last. This from one of the commenters:

As a person who started the world's first company based on supporting, developing, and maintaining GPL-licensed software (Cygnus Support, 1989), and now a VP at Red Hat, I respectfully submit that you don't really understand the GPL, APIs, nor the fundamental premise of Open Source Software (both as a legal construct and as a short-hand for the business models that it enables). To paraphrase Wolfgang Pauli, "Your arguments are not right. They are not even wrong."

I find that lawyers are the bane of my life at times. They have little commercial understanding albeit the matter of copyright as understood in the US is mired with litigation. This example does nothing to dispel my belief.

Endnote: Ms Hurst is keen to point out, at the end that:

Views expressed herein are entirely my own and not intended to be the statement of any client.

Unfortunately, she forgot to add that she's on the Oracle legal team that is suing Google.