Thursday, May 10, 2012

EFF and FSF comments on partial jury verdict raise total non-issues

After the partial verdict finding Google to infringe 37 Java APIs (while not taking a position on Google's "fair use" defense), two of the world's most prominent software advocacy groups, the Electronic Frontier Foundation (EFF) and the Free Software Foundation (FSF), issued statements on intellectual property questions relating to APIs (application programming interfaces).

Looking beyond this particular issue, I agree with those organizations in some areas and disagree in others. Generally speaking, I'm a lot closer to their positions on software patents than those on copyright. I respect the great work that both of them do in certain contexts. I'm not going to do a complete rebuttal of all parts of their Java API statements that I disagree with, but I'd like to highlight some specific examples with respect to which they simply cry wolf by pointing to potential problems that were resolved years ago.

The EFF uses Samba as an example as if there had never been an EU antitrust case over the relevant protocols

Here's the fifth paragraph of the EFF's statement dated May 7, 2012:

"Take, for example, a free and open source project like Samba, which runs the shared folders and network drives in millions of organizations. If Samba could be held to have infringed the Microsoft's copyright in its SMB protocol and API, with which it inter-operates, it could find itself on the hook for astronomical damages or facing an injunction requiring that it stop providing its API and related services, leaving users to fend for themselves."

There's no need to worry about interoperability between Microsoft's Windows server products and Samba. The European Commission's Directorate-General for Competition (DG COMP) and the Court of First Instance of the EU determined that Microsoft had a dominant position in the relevant product market and, therefore, an obligation to grant a license to all of the intellectual property (a term that includes copyright as well as patents and other types of rights) required for interoperability purposes.

It's absolutely wrong that the Samba team "could find itself on the hook for astronomical damages or facing an injunction". This never happened and it never will, as a result of the EU-Microsoft case.

The EFF doesn't mention this important fact, but this actually shows that interoperability can be achieved in many ways -- in this case, antitrust law came into play -- and doesn't depend on anti-IP policies.

Denying copyrightability of complex creations that satisfy the originality requirement only because further down the road intellectual property might impede interoperability throws out the baby with the bathwater. The right approach is to address copyrightability based on the merits of what was created, and to deal with interoperability at a subsequent stage with other tools including but not limited to competition law. There are many benefits to the approach I favor. One of them is that any kind of interoperability privilege should benefit only those who truly create compatible, interoperable software -- not those who, like Google in this case, purposely create incompatible, non-interoperable platforms.

The EFF's focus on copyrightability is akin to thinking that because all you have is a hammer, everything is a nail.

The FSF promotes Google's interests instead of the GPL and is ungrateful for Oracle's (Sun's) support of the GPL

The FSF published a statement that includes the following quote attributable to its executive director, John Sullivan:

"Were it grounded in reality, Oracle's claim that copyright law gives them proprietary control over any software that uses a particular functional API would be terrible for free software and programmers everywhere. It is an unethical and greedy interpretation created with the express purpose of subjugating as many computer users as possible, and is particularly bad in this context because it comes at a time when the sun has barely set on the free software community's celebration of Java as a language newly suitable for use in the free world. Fortunately, the claim is not yet reality, and we hope Judge Alsup will keep it that way."

I am puzzled by this statement for two reasons:

  1. Usually the FSF promotes the GPL, the license that it claims is designed to ensure the freedom of computer users and software developers. But Sun has published, and Oracle continues to make available, core Java technologies under the GPL. It was Google's choice not to use that GPL-based Java code -- and the reason why Google decided not to use it is because it wants to deny users the freedoms the FSF normally advocates. Not only does Google eschew the GPL in connection with Android because it wants to provide software under other licenses but it also wanted to be able to tell device makers that they could build (as all of the major players did) proprietary, closed-source Android extensions for the purpose of differentiation. If Google agreed with the FSF as much as the FSF supports Google here, Google would have taken Java code on a GPL basis, and there would be absolutely no threat to "free software and programmers everywhere".

    The FSF statement is nonsensical for that reason. It's also utterly ungrateful for the fact that Oracle/Sun support the free software community. Even if the FSF had a point about the risks of API copyrightability (which in my view it doesn't, but let's assume it does only for the sake of the argument), this would be a non-concern to the GPL community. The FSF takes a seemingly principled position that is actually absurd considering that the issue it raises only affects those who distribute Java on non-GPL terms.

  2. If any kind of conduct at issue in this dispute is "unethical and greedy", it's the fact that Google, after negotiating a license for Java and concluding it didn't like the terms, simply hijacked Java for financial gain and commercial, strategic purposes. The "father of Java", James Gosling, clarified that "Google totally slimed Sun".

    The fact that Google actually would have had access to Java on free-of-charge terms under the FSF's own GPL but instead wanted to use it under other licenses makes Google's behavior even more unethical.

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