Federal Appeals Court Decision in Oracle v. Google

[ Update on 2014-05-13: If you're more of a listening rather than reading type, you might enjoy the Free as in Freedom oggcast that Karen Sandler and I recorded about this topic. ]

I have a strange relationship with copyright law. Many copyright policies of various jurisdictions, the USA in particular, are draconian at best and downright vindictive at worst. For example, during the public comment period on ACTA, I commented that I think it's always wrong, as a policy matter, for copyright infringement to carry criminal penalties.

That said, much of what I do in my work in the software freedom movement is enforcement of copyleft: assuring that the primary legal tool, which defends the freedom of the Free Software, functions properly, and actually works — in the real world — the way it should.

As I've written about before at great length, copyleft functions primarily because it uses copyright law to stand up and defend the four freedoms. It's commonly called a hack on copyright: turning the copyright system which is canonically used to restrict users' rights, into a system of justice for the equality of users.

However, it's this very activity that leaves me with a weird relationship with copyright. Copyleft uses the restrictive force of copyright in the other direction, but that means the greater the negative force, the more powerful the positive force. So, as I read yesterday the Federal Circuit Appeals Court's decision in Oracle v. Google, I had that strange feeling of simultaneous annoyance and contentment. In this blog post, I attempt to state why I am both glad for and annoyed with the decision.

I stated clearly after Alsup's decision NDCA decision in this case that I never thought APIs were copyrightable, nor does any developer really think so in practice. But, when considering the appeal, note carefully that the court of appeals wasn't assigned the general job of considering whether APIs are copyrightable. Their job is to figure out if the lower court made an error in judgment in this particular case, and to discern any issues that were missed previously. I think that's what the Federal Circuit Court attempted to do here, and while IMO they too erred regarding a factual issue, I don't think their decision is wholly useless nor categorically incorrect.

Their decision is worth reading in full. I'd also urge anyone who wants to opine on this decision to actually read the whole thing (which so often rarely happens in these situations). I bet most pundits out there opining already didn't read the whole thing. I read the decision as soon as it was announced, and I didn't get this post up until early Saturday morning, because it took that long to read the opinion in detail, go back to other related texts and verify some details and then write down my analysis. So, please, go ahead, read it now before reading this blog post further. My post will still be here when you get back. (And, BTW, don't fall for that self-aggrandizing ballyhoo some lawyers will feed you that only they can understand things like court decisions. In fact, I think programmers are going to have an easier time reading decisions about this topic than lawyers, as the technical facts are highly pertinent.)

Ok, you've read the decision now? Good. Now, I'll tell you what I think in detail: (As always, my opinions on this are my own, IANAL and TINLA and these are my personal thoughts on the question.)

The most interesting thing, IMO, about this decision is that the Court focused on a fact from trial that clearly has more nuance than they realize. Specifically, the Court claims many times in this decision that Google conceded that it copied the declaring code used in the 37 packages verbatim (pg 12 of the Appeals decision).

I suspect the Court im