The Death of "Free" Software . . . or How Google Killed GPL

by Annette Hurst (@divaesq)*

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.

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.

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."

It is hard to see how GPL can survive such a result. In fact, it is hard to see how ownership of a copy of any software protected by copyright can survive this result. 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.

Google is an advertising company. It does not depend upon traditional software licensing and is therefore free to disregard the protections that traditional software licensing provides. Nonetheless, Google exerts control over its APIs. Google prohibits copying of its APIs for competitive uses. In fact, Google has in the past settled with the FTC over the manner in which it has restricted its APIs.

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. Think about the larger and longer term implications. You should have been on Oracle's side in this fight. Free stuff from Google does not mean free in the sense Richard Stallman ever intended it.

*Views expressed herein are entirely my own and not intended to be the statement of any client.