Wednesday, 11 May 2016

Oracle V Google: When Does Something That's Free To Use Have to Be Paid For?

Parker Higgins and Sarah Jeong have been live-tweeting from the courtroom and Ars Technica's own Joe Mullin has a seat in the press gallery. Hats off to these fine people for providing a running commentary of the case. Judge William Alsup and the jury will decide whether or not APIs are copyrightable and if they are, was Google's use of Java in Android fair use?

Well last night I wrote that this case is not just a popcorn and beer event, the implications could put a tollbooth on web development and force prices up for everyone on everything with Java in it because Oracle believes that the Java language is its private property.

Is Java free to use or not?


Today, as the lawyers made their arguments, the stand-out moment was this:

Was the Java language, created by Sun Microsystems in the 1990s, "free and open to use?" Google lawyer Robert Van Nest asked.

"Absolutely, yes," Schwartz said. "Since its inception. Long before I arrived at Sun."

Sun promoted use of Java in schools and colleges around the world, trying to grow a community of developers that would ultimately grow into the millions.

"It was in our interest to do so," Schwartz continued. "If you were using Java, then everything else that Sun sold, we could sell to you. If you were using Microsoft Windows, the dominant operating system, then we had nothing to sell you."

That freedom extended to use of Java APIs, as well. Schwartz explained APIs with a metaphor: two restaurants may sell something that their menus call a "hamburger." Even while they compete to sell the better burger, they reach an agreement on the menus.
"The strategy was, we agree on these open APIs, then we compete on implementations," he said. - Sun’s Jonathan Schwartz at trial: Java was free, Android had no licensing problem, by Joe Mullin for Ars Technica

Just in case you're not getting this, let me explain: the exact, precise thing that Oracle is referring to as stolen property for which Google "owes" them gazillions of $$$ was free to use in the first place, says the former Sun CEO. Even for commercial purposes.

Can software just be given away?


Since Java had been officially free to use, even for commercial purposes, and this is a well-known fact, this should have been sufficient for everyone to grab their coats and split; game over. Not so fast, muchachos, Oracle lawyer Peter Bicks had this to say:

Bicks: You didn't want to work for Oracle, did you?
...Schwartz: Oracle was frustrated with the speed at which customers began abandoning Sun, once it became clear we were going to be acquired. - Sun’s Jonathan Schwartz at trial: Java was free, Android had no licensing problem, by Joe Mullin for Ars Technica

Basically, he's calling Schwartz a liar, suggesting that, since he has fallen out with Oracle, the Java code isn't open source after all. He then suggested that if Google and other open source (OS) cheerleaders were being hypocritical about their own proprietary products, then OS itself could be dismissed and licences sought to bring the nerds into line. He then finished up with an ad hominem attack painting Schwartz as being at or near the bottom of the CEO class.

The upshot: if open source can't be taken seriously as a licencing option, infringement took place on "property stolen from Sun by irresponsible CEOs" who didn't have a clue about how to run a business.

This is dangerous. It assumes that if the "wrong" people make a decision about whether or not to release code, etc., to the public domain, it can be snatched back later because bean-counters trump hippies the way scissors trumps paper.

Will this impact API copyrightability?


Whether Google wins or loses, the question being asked is not whether APIs can be copyrighted, but whether Google infringed or not and if they did, does a fair use exception apply? This means the question will be asked every time Oracle takes some poor sap to court over using Java sans licence.

According to Foss Patents, the conclusion of this trial (no matter who wins) will not influence API copyrightability “in a general rule that makes APIs available on ‘fair use’ terms.” Round two is all about “fair use,” a concept which allows new ideas to be built on earlier ones; this is Google’s ace in the hole, because it claims that it added new meaning to the Java API packages by including the code in a smartphone operating system. Florian Mueller, the founder of the FOSS Patents blog, wrote in a tweet that this trial’s round two is unlikely to bring clarification on APIs.

If Google loses, the idea that code should be transformable will no longer be accepted. In this scenario, any company or developer  would be right to fear a copyright suit over use of an API. Ars Technica cited Mitch Stoltz, an attorney for the Electronic Frontier Foundation, as saying that some of the lawsuits could have a hidden motif, namely to simply shut down competition. If the jury decides that “fair use” is just an excuse, developers may soon spend “more time talking to their lawyers.”  - Oracle v. Google — Round two: The bashing begins as giants take the stand, by  Gabriela Motroc for Jaxenter

The trouble with fair use trials is that it's decided on a case by case basis, so even if Google wins, if APIs are not declared emphatically, no doubt about it uncopyrightable, Oracle will be able to troll smaller companies that have been using Java and shake them down for licence revenues.

Does Java have a future?


Software development is an ecosystem that depends on the availability of languages and APIs to make the programs work. For example, if this blog was for promoting my business and I wanted people to be able to find me I could embed a map in one of the widget areas provided by the theme. In fact, the widgets allow me to embed any code I want, to make my blog do anything I want. Many of the website features I love most are built using Java, e.g. slideshows. Can you imagine what it would be like for a sole trader web designer having to pay licence fees for All The Things? Anyone who couldn't afford them would soon be out of business. That I was able to have a business at all was due to the programs I used being free. Well Java's not the only programming language in the world and with inter-operability being key to the development of new products and programs, enter Apple's Swift programming language, which may well supplant Java in the future. Adoption will be painfully slow, though: it doesn't play nicely with Java so all programs will have to be rewritten with their APIs using Swift instead of Java. If Swift fails to take flight, other programming languages might take over where Java left off.

Conclusion


The future of the open source movement and its licensing system are under threat by the notion that hippie nerds don't understand this Earth thing called "property," and tend to give it freely away like a nutter at a cashpoint handing banknotes to passers-by. None of the other blogs are picking this up and this bothers me. I hope to goodness that I'm wrong.

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