Wednesday, 1 June 2016

Google V Oracle: Everyone Wins — For Now

The scales of Justice
Oracle's lawyer Annette Hurst is getting absolutely battered on Linked In for her butthurt blog post about Oracle's loss in its case against Google. Basically, her arguments not only demonstrate a lack of understanding of how software actually works in operation, they depend on ignorance. Since maximalists tend to use such arguments, it's worth taking a look at them and discuss what it means for open source and freeware.

When is free software free to use?

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. - The Death of "Free" Software . . . or How Google Killed GPL, by Annette Hurst on Linked In

The way Hurst tells it, open source is only free to use if money's not being made from it. Well that throws every ecommerce website built on WordPress, Joomla, Drupal, and Zencart out the window, doesn't it? But fair use doesn't apply to Open Source software because you don't need an exception defence for that; the point is you can use it for whatever you want provided that you don't try to sell the software on. Open Source is licenced in such a way that you can sell the implementation — the functionality — e.g. slideshow programs and/or plugins, as well as using it as a platform, e.g. to sell goods online and to process payments. The idea, then, that a misguided jury letting Google win means "No free software for you!" is ridiculous.

Oh, that free software. Right...

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." - The Death of "Free" Software . . . or How Google Killed GPL, by Annette Hurst on Linked In

This is the Adobe version of free, in which there is free stuff but it's a pale shadow of the licensed version. The adherence to the licence restrictions comment means you have to acknowledge and respect the border controls on the intellectual real estate of the Adobes of this world, completely forgetting that there's such a thing as GNU, who kindly gave us GIMP, which I use to make my illustrative cartoons, and which I've never paid for though I do make the odd donation to thank them for their kindness. Inkscape is also free; I use that to make logos. I actually find GIMP a lot easier to use than Photoshop because it's got a simple, intuitive interface and give me pixel by pixel control over image-making. Yes indeed, free software can be just as good as if not better than proprietary software.

Did she suggest streaming software functionality?

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. - The Death of "Free" Software . . . or How Google Killed GPL, by Annette Hurst on Linked In

Erm... whut? Did Hurst really just suggest streaming software functionality like you do when using an online photo editor, etc., and controlling access to that via a paywall or subscription? Is she serious? Okay, fine, let's assume she did. I love GIMP but I'm fickle. Sometimes I play with other graphics programs just to see what they're like. It's just a bit on the side and if you don't tell Wilber he won't get hurt. One thing I've noticed with online graphics programs, etc., is the lack of control I have over what I'm doing with them. They'll only give you so much, then shake the can. I became so exasperated while working on a project for church (I needed a smooth SVG image of our logo), I ended up seeking out a graphic designer with superior tools who gave me what I wanted at a decent price. Can-shaking didn't get the proprietors the money they wanted, that went to the bloke who could do the thing I was unable to manage myself.

When Hurst warns about consumers finding decreasing options to own anything, that's a result of proprietary culture, not freeware or open source programs being used for profit. It's pure FUD* and can safely be ignored.

Who really won?

That would be us, the public. I was personally very confused about the issues involved and misunderstood the case as a sneak attack on the open source and freeware movement by a rentier shaking a can in a menacing fashion. Now I understand it thus:

Google didn't use Oracle's open source software. Instead, it created its own software. Their "crime" was to make it conform to the same set of specs as Oracle's Java. This is no different than a car part manufacturer creating after-market parts that fit your Ford or GM car. Everyone recognizes that this is far use of the Ford or GM part designs. - Tony Isaac, response to The Death of "Free" Software . . . or How Google Killed GPL

So what happened was that Google, when creating its own software, required code to make the components "talk" to each other, so it wrote APIs in Java to make that happen. Oracle flipped its wig and claimed copyright over the use of the language because Google made money from selling products that incorporated the code. Had Google made little or nothing, Oracle would no doubt have left them alone. The fact that, in the last appeal, APIs were deemed copyrightable forced Google into having to appeal based on a fair use defence as the APIs are essential for inter-operability. Needless to say, Oracle are persisting in their "We wuz robbed!" narrative, hence the PR blitz in social media and on tech blogs.

What have they got to show for it?

Well apart from a bloody nose, they've got egg all over their faces. The costs are more than just lawyer's fees; that Oracle is trying to revoke the Open Source nature of Java APIs using copyright law as a means of gaining licencing revenues creates an increasing risk that developers will simply stop using it and move on to other programs. If that happens they can kiss those hoped-for revenues goodbye because the market is fickle, it'll go where the good stuff is and nobody likes being shaken down. So, then, they should be careful what they wish for: if they win on appeal and can Licence All The Things! they may find that they've won the kingdom but that's all they've got; their subjects are moving away. Any smart lawyer would be warning them about that.

*Fear, uncertainty, doubt.

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