Why Oracle will win its Java copyright case – and why you'll be glad when it does

Open source needs strong copyright; weak copyright only helps bullies

Comment Oracle will ultimately prevail in its Java copyright lawsuit against Google. And if you're a free software developer or supporter, you should be cheering them all the way to the wire.

Blogger John Gruber last week observed that virtually no one is rooting for Big Red. This is really quite astonishing. That's because Google has been deploying the "cuttlefish strategy," which it uses when it's threatened – spraying ink into the water so no one can really see what's going on. It's really, really good at this, and it has never used the strategy so well as here.

Google threw out so many diversions and red herrings that free and open-source software (FOSS) supporters were even cheering for a verdict that kicks away the legal basis for open source and free software. In the eyes of the "civil society" NGOs (non-governmental organizations) and compliant academics (many of whom are funded by Google), and backed by a chorus of bloggers and tech journalists who prefer a simplified, cartoon view of the world, the story was indeed simple. In their eyes, the good guys won, and that's all there was to the case.

So why is the jury's broad application of fair use in reality bad news for open source? How did Google win last week? And why will Oracle ultimately prevail? Let's take these three questions in reverse order. And strap in for the ride: The Register is not responsible for any disorientation or cognitive dissonance experienced over the next two pages.

Oracle will ultimately prevail over Google for a very simple reason: Google is guilty. Google copied 11,000 lines of someone else's copyrighted code without a license to do so. It could have chosen some other code to copy; or it could have obtained a license; or it could have not copied anything and created every single line of Android code from scratch. All three were options that Google didn't take. It's really as simple as that.

So on to the next question. How is this verdict bad for open software, when almost everything you've read insists that you reach the opposite conclusion?

In a nutshell, free and open source software depends on simple, strong copyright law. Access to justice is also a factor: if you're a small developer, you should be able to go to court to defend your license with the presumption in your favor. Contract integrity is also pretty important, but that's a given; in a judicial system in which contracts mean nothing, there is little justice for anyone, in any context. A defining characteristic of gangster states, banana republics and totalitarian regimes is that contracts mean nothing in court.

Copyleft itself is founded on strong copyright, as Richard M Stallman has pointed out, when telling off the Pirate Party about the dangers of weakening intellectual property (IP). Challenges to the GNU GPL have been infrequent and unsuccessful, not because a judge gets misty-eyed about GNU Emacs or GDB, or breaks into a spontaneous rendition of The Free Software Song – it's because of strong copyright. When a challenge to the GPL is rejected, it's because there's been a blatant infringement. On that basis, the license can be enforced. Weak copyright turns a skirmish into a legal crapshoot.

In Stallman's future utopia, there would be no copyright to speak of at all. While we're imagining futures, there's a whole fascinating new topic of discussion about the merits of software not being under copyright; that we create brand new (sui generis) IP rights more suitable for software, something (say) that's somewhere between a design right and copyright. But for now, software developers have to operate in the real world. Stallman and Eben Moglen wrote a very effective tool for the real world: the GPL. But it only works as long as copyright is strong and straightforward. Without copyright protecting your code, defending your license would be vastly more expensive and uncertain.

And that grim prospect was given life by a homesick San Francisco jury last week, whose verdict augurs a mushy middle ground where property rights exist in name only, and can't be defended. If this became the norm, a software license would mean nothing. It would be a bully's charter.

But just as there was no reason for FOSS supporters to celebrate last week's verdict, there's no reason for FOSS supporters to be overly alarmed, either. Do not panic. Oracle's lawyers are correct in asserting that it's a terrible verdict for FOSS – less so when they suggest it sets a precedent. No legal precedent has been set, for every assertion of fair use needs to be examined each time. (That's why I choose words like "prospect" and "augur" carefully; the appeals court will have little choice but to toss it out.)

It was a very peculiar set of circumstances that led to the jury finding for Google, which brings us to the third question: how exactly did Google manage to win?

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