Furthering the interests of Free Software?

Or not.

The Free Software Foundation (FSF) has gone public with a statement on the Oracle vs Google litigation.  The FSF is of course free to do so, and since it’s also a campaigning organisation we should not be surprised when they do.  But does the statement itself stand up to scrutiny?

Before going any further, I should make it clear: this is a comment on the FSF’s position statement.  No matter where this appears aggregated, I don’t represent anyone or anything other than myself.  Any views I may have on the FSF itself, on Oracle or Google, on Java implementations, Android/Dalvik, on patents (software or otherwise) or on anyone/anything else, fall outside the scope of this posting.  Nor should this be taken as comment on the FSF beyond this single document: as it happens, I am in general terms an admirer of the FSF.

The introduction is clear enough:

As you likely heard on any number of news sites, Oracle has filed suit against Google, claiming that Android infringes some of its Java-related copyrights and patents. Too little information is available about the copyright infringement claim to say much about it yet; we expect we’ll learn more as the case proceeds. But nobody deserves to be the victim of software patent aggression, and Oracle is wrong to use its patents to attack Android.

That’s fair: the FSF’s position against software patents is rational and consistent.  Oracle vs Google is one of many patent cases currently in the courts throughout the rapidly-growing mobile devices space: some other household names that spring to mind include Apple, Nokia, HTC, and of course the victim of the biggest injustice, Blackberry-maker RIM.  But it’s also fair to say Oracle vs Google may have more far-reaching repercussions than the others, insofar as it may affect Free Software in the Android ecosystem.

The second paragraph is more problematic:

Though it took longer than we would’ve liked, Sun Microsystems ultimately did the right thing by the free software community when it released Java under the GPL in 2006. […]

That’s fair as far as it goes, but it’s becoming a partisan statement within FOSS when you implicitly dismiss the ongoing controversy over licensing a TCK.  The third paragraph goes on to say:

Now Oracle’s lawsuit threatens to undo all the good will that has been built up in the years since. Programmers will justifiably steer clear of Java when they stand to be sued if they use it in some way that Oracle doesn’t like. […]

Hang on!  How is that new?  The entire TCK issue is about field-of-use restrictions that are problematic for free software!  At the same time, let’s not forget that Java was hugely popular among Free Software developers even before 2006: these controversies matter only to an activist minority.

If the above is nitpicking, paragraph 4 is altogether more suspect.  Let’s quote it in full:

Unfortunately, Google didn’t seem particularly concerned about this problem until after the suit was filed. The company still has not taken any clear position or action against software patents. And they could have avoided all this by building Android on top of IcedTea, a GPL-covered Java implementation based on Sun’s original code, instead of an independent implementation under the Apache License. The GPL is designed to protect everyone’s freedom—from each individual user up to the largest corporations—and it could’ve provided a strong defense against Oracle’s attacks. It’s sad to see that Google apparently shunned those protections in order to make proprietary software development easier on Android.

Erm, this really is an attack on Apache!  How would IcedTea have helped here?  The only valid argument that it might have done is that rights were granted with Sun’s original code.  I don’t think it’s clear to anyone outside the Oracle and Google legal teams whether and to what extent such ‘grandfather’ rights might affect the litigation.  As far as licenses are concerned, the Apache License is a lot stronger on protection against patent litigation than the GPLv2 under which IcedTea is licensed.  Indeed, in separate news, Mozilla (another major player in Free Software) is updating its MPL license, and says of its update:

The highlight of this release is new patent language, modeled on Apache’s. We believe that this language should give better protection to MPL-using communities, make it possible for MPL-licensed projects to use Apache code, and be simpler to understand.

Well, Mozilla is coming from a startingpoint closer to the GPL than Apache.  It seems I’m not alone in supposing the Apache license offers the better patent protection, contrary to the FSF’s implication!

Finally the tone[1] of the FSF statement, as expressed for example in the final paragraph, makes me uneasy:

Oracle once claimed that it only sought software patents for defensive purposes. Now it is using them to proactively attack free software.

Hmmm, attacking Android/Dalvik is proactively attacking free software?  While it’s a supportable position it’s also (to say the least) ambiguous, and you haven’t made a case to convince a sceptic.  Or a judge.

[1] Not to mention the grammar, up on which some readers of this blog will undoubtedly pick.