Oracle's Lead Lawyer Against Google Vents That The Ruling 'Killed' The GPL

When the Federal Circuit Appeals Court (CAFC) initially made its nutty ruling saying that APIs are copyright-eligible subject matter, many in the copyright and tech world were not only shocked, but were tremendously worried about how the ruling would impact innovation and software development going forward -- while supporters on the other side brushed off such concerns.

Now that the second trial has found that, even if APIs are covered by copyright, Google's use of the Java APIs in Android was fair use, perhaps it's only fair that people on the losing side are lashing out in the same manner as people on the other side did after the CAFC ruling.

Annette Hurst, the lawyer who led the case on the Oracle side, posted her thoughts to LinkedIn, claiming that the ruling represents the "death of free software," and, more specifically, saying that the ruling "killed" the GPL (General Public License, even though at the trial one witness insisted it was the Gnu Public License). From reading her post, it appears that she either doesn't understand that software and APIs are not the same thing, or that she just doesn't care. The whole argument is strange, and starts off with a bizarre, and simply wrong, assertion that "no copyright expert" would have predicted this result:

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.

Except, of course, tons of copyright experts predicted exactly this result (and many more argued that APIs should not be subject to copyright at all). Famed copyright scholar Pam Samuelson has been writing extensively about the case, focusing both on why APIs should not be covered by copyright (and, why basically every other court has agreed) as well as why, even if it is covered, it's fair use. Hell, she even wrote a response to the Hurst piece, explaining why Hurst was wrong. It's weird for Hurst to take a position that actually seems at odds with a huge number of copyright experts, and then state that none would take the position that many did.

From there, she appears to misunderstand the point made by the other side in the very case she led:

While we don't know what ultimately swayed the jury, Google's narrative boiled down to this: because the Java APIs have been open, any use of them was justified and all licensing restrictions should be disregarded. In other words, if you offer your software on an open and free basis, any use is fair use.

If that narrative becomes the law of the land, you can kiss GPL goodbye.

Except she's exaggerating here and misrepresenting the key issues in the case. No one was arguing, as she implies, that any software that is described as "free and open" or that is using the GPL means that any use is fair. Again, she's conflating APIs with actual software. The ruling doesn't impact software the way she thinks it does because she doesn't seem to want to acknowledge that APIs are not software. They're just a structure -- a table of contents effectively.

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. 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."

This is simply not true. The case revolved around the fact that the API and its "declaring code" are fundamentally different from the actual source code within the operating system. It serves an entirely different purpose. Part of the reason why the use of the same API is considered fair use is because of that very nature of it: the API is more functional -- it's like a pointer or a reference, rather than an actual bit of code. It's only if you don't understand that the two things are different that this ruling leads to the problems that Hurst describes. A case with the same facts, but where straight up source code was copied would have a much tougher uphill battle on the fair use front.

Developers beware. You may think you got a win yesterday. But it's time to think about more than your desires to copy freely when you sit down at a keyboard.

Once again, this shows a rather unfortunate ignorance of how coding works. It's not about a desire to "copy freely." It's about building amazing and innovative services, and making use of APIs to increase interoperability, which increases value. Copying an API structure is also just much more about making developers comfortable in using new environments. You know, like how Oracle copied SQL from IBM. Because lots of people understood SELECT-FROM-WHERE and it made little sense to create a relational database that didn't use that structure. It's not about copying freely. It's about interoperability.

And, really, the idea that an Oracle lawyer is "concerned" about the future of the GPL is fairly laughable. Thankfully, many people have weighed in in the comments -- including plenty who are quite familiar with the GPL and software development to explain to Hurst why she's wrong. Somehow, I think she has some fairly strong reasons to ignore those responses.

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