The Death of “Free” Software or How Google Killed GPL
This is a decidedly non-factual account. In more detail:<p>&gt; Google won a verdict that an unauthorized, commercial, competitive, harmful use of software in billions of products is fair use.<p>No, the only part of this description that is clearly correct is that Google won a verdict that its particular unauthorized commercial use (that the use was unauthorized and commercial are facts not in dispute) of Java APIs is &quot;fair use&quot;. While the verdict required the jury to weigh whether and to what extent that use was harmful, a separate finding on that point was not made.<p>&gt;  No copyright expert would have ever predicted such a use would be considered fair.<p>IIRC, several copyright experts publicly <i>did</i> predict that, at least, a finding that the use in question was &quot;fair use&quot; was a reasonably likely outcome after the ruling that APIs were copyrightable in the first place.<p>&gt; the free software movement itself now faces substantial jeopardy.<p>Certainly, any ruling which restricts the scope of copyright protection or finds broad fair use rights poses problems for enforcing the restriction of copyleft licenses, so, while I think the concern here is exaggerated greatly, there is <i>some</i> impact to the GPL.<p>OTOH, there&#x27;s very little impact to the utility of permissive free software licenses in achieving the goals of said licenses.<p>&gt; Google&#x27;s narrative boiled down to this: because 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.<p>No, it didn&#x27;t. Google&#x27;s arguments included a lot of points, including arguing that Google&#x27;s use of Java <i>increased</i> the commercial relevance of the Java, and boosted Oracle&#x27;s business. They did not argue, at any point that I can find documented that free licensing made any use fair. This seems to be a pure invention.<p>&gt; 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.<p>While Hurst radically misrepresents both the substance of the verdict and the nature of the argument Google made in pursuit of it, there is some truth to this: certainly, firms relying on an extremely broad interpretation of the scope of copyright protection and an extremely narrow interpretation of the fair use exception in developing a business plan around dual licensing like the &quot;copyleft or pay us&quot; model, <i>should</i> carefully consider what impact actual rulings on the scope of copyright and fair use like this one have on their business models.<p>OTOH, lots of commercial software that has an element of open software don&#x27;t rely on the restrictive nature of copyleft license as a means to upsell to commercial licenses, instead packaging additional features and&#x2F;or professional services with commercial licenses (e.g., EDB&#x27;s Postgres-based products.) These kinds of commercial open-core systems aren&#x27;t particularly impacted.<p>&gt; It is hard to see how GPL can survive such a result.<p>Well, sure, its hard to see how the GPL could survive the rule that Hurst fantasizes was applied here becoming generally accepted, where any use of any software under an open-source license was &quot;fair use&quot;. But that has little bearing on reality.<p>Viewing the use of the Java APIs in this case as fair use <i>might</i> imply that some of the FSF&#x27;s interpretation of where adherence to the GPL is required might be wrong, but this doesn&#x27;t invalidate the GPL. (It might, if well-established in law, actually make the GPL more attractive for use, though it would no doubt be somewhat troubling to those who see the GPL as a wedge to force other and only tangentially-related software to be released under the same terms.)<p>&gt; Nonetheless, Google exerts control over its APIs.  Google prohibits copying of its APIs for competitive uses.<p>I can&#x27;t see any evidence of Google either asserting that its APIs are protected or acting to prevent competitors from copying them. Is there any example of this?<p>&gt; In fact, Google has in the past settled with the FTC over the manner in which it has restricted its APIs.<p>This is pure equivocation (using the same term, &quot;API&quot;, for two different meanings.) What Google has settled with the FTC isn&#x27;t over APIs-as-elements-of-intellectual-property, it was over APIs-as-specific-services. This has nothing to do with the APIs-as-IP issue in this case.