Jury in Oracle v. Google finds in Google's favour
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It is right that the author of a creative work get protection for having conceived that work and reduced it to tangible form. Developers do this all the time with their code. So too do many, many others. Many today disagree with this because they grew up in a digital age where copyright was seen as simply an unnecessary impediment to the otherwise limitless and basically cost-free capacity we all have to reproduce digital products in our modern world and hence an impediment to the social good that would come from widespread sharing of such products for free. Yet, as much as people believe that information ought to be free, it is a fact that simply letting any casual passer-by copy and distribute any creative work with impunity would certainly work to rob those who may have spent countless hours developing such works of the commercial value of their efforts. I will grant that this is a social policy judgment on which the law could come down on either side. I stand with the idea of copyright protection.
Even granting the correctness of copyright as a body of law that protects certain property interests, there are still many abuses in the way it is implemented and enforced. Copyright terms have been extended to the point of absurdity, and certainly well beyond what is needed to give the original author an opportunity to gain the fruits of his or her labor. Enforcement statutes are heavy-handed and potentially abusive, especially as they apply to relatively minor acts of infringement by end-users. And the list goes on.
The point is that many people are fed up with copyright law as currently implemented and, when there is widespread discontent in society over the effects of a law, the time is ripe for a change.
I believe this is where copyright law is today.
The Bono law may have slipped through Congress with nary a dissent in its day but this will not happen again, whatever the lobbying power of Disney and others. And the same is true for the scope of copyright law as it applies to APIs.
Ours is a world of digital interoperability. People see and like its benefits. Society benefits hugely from it. Those who are creatively working to change the world - developers - loath having artificial barriers that block those benefits and that may subject them to potential legal liabilities to boot. Therefore, the idea that an API is copyrightable is loathsome to them. And it is becoming increasingly so to the society as a whole.
The copyright law around APIs had developed in fits and starts throughout the 1980s and 1990s, primarily in the Ninth Circuit where Silicon Valley is located. When Oracle sued Google in this case, that law was basically a mess. Yet Judge Alsup, the judge assigned to this case, did a brilliant synthesis in coming up with a coherent and logically defensible legal justification for why APIs in the abstract should not be protected by copyright. He did this by going back to the purpose of copyright, by examining in detail what it is that APIs do, and by applying the law in light of its original purpose. The result was simple and compelling (though the judicial skill it took to get there was pretty amazing).
Legal decisions are binding or not depending on the authority of the court making them and on whether a particular dispute in under the authority of one court or another when it is heard.
The decision by Judge Alsup is that of a trial judge and hence not legally binding as precedent on any other judge. It could be hugely persuasive or influential but no court is bound to follow it in a subsequent case.
The Federal Circuit decision that reversed Judge Alsup and held APIs to be copyrightable is not that of a trial judge and has much more precedential effect. Yet it too has limited authority. The Federal Circuit Court does not even have copyright as its area of jurisdiction. It is a specialty court set up to hear patent appeals. The only reason it heard this case was because the original set of claims brought by Oracle included patent claims and this became a technical ground by which the Federal Circuit Court gained jurisdiction to hear the appeal. But there are many other Federal Circuit courts in the U.S. and the effect of the Federal Circuit Court decision concerning copyrights is not binding on them. There is also the U.S. Supreme Court. It has the final authority and its decisions are binding on all lower federal courts as concerns copyright law.
The point is that the battle over this issue is not over. It is true that the Federal Circuit decision was a large setback for those who believe APIs should not be subject to copyright. Yet there remains that whole issue of social resistance and that is huge. It will undoubtedly take some time but the law can and does change in ways that tend to reflect what people actually think and want, at least in important areas. No one has a stake in seeing that Oracle be awarded $9 billion in damages just because it bought Sun Microsystems and found an opportunity through its lawyers to make a big money grab against Google. But a lot of people have a stake in keeping software interoperability open and free and many, many people in society benefit from this. Nor is this simply an issue of unsophisticated people fighting the shark lawyers and the big corporations. Many prominent organizations such as EFF are in the mix and are strongly advocating for the needed changes. Thus, this fight over APIs will continue and I believe the law will eventually change for the better.
In this immediate case, I believe the jury likely applied common sense in concluding unanimously that, notwithstanding Oracle's technical arguments, the use here was in fact benign given the ultimate purposes of copyright law. I leave the technical analysis to others but, to me, this seems to be a microcosm of the pattern I describe above: when something repels, and you have a legitimate chance to reject it, you do. Here, the idea of fair use gave the jury a big, fat opening and the jury took it.
Copyright maximalists realizing this have moved to circumvent democracy globally by enshrining their most draconian laws into "free trade" treaties. These treaties have the proven ability to overturn the will of national democratic bodies and are almost impossible to remove once imposed.
It's globalists and internationalists that circumvented democracy. The copyright maximalists are just trying to take advantage of the opening.
You're usually full of rock solid arguments and facts about how the sky isn't really falling. That was a real bummer to read. :(
We, the US public, out of the goodness of our hearts and wanting to foster art, gave up our right to "repeat what we heard" (copying, when what you hear is digital) in return for incentives to create art.
And then bam; decades later the incentives are the de facto baseline, and have been extended with almost no public awareness (let alone debate) using the special interest money that our goodwill created for them.
It is the ultimate checkmate of democracy, and if it weren't so unjust, you would have to hand it to the media industries for playing so masterfully.
Well, good job. You got us. You took the rules we made, and took the public (US, but even more abroad, by exporting your draconian laws via more special interest money) and absolutely destroyed us. You won. Game over.
But wait... not quite. The game is politics. And if you had been content to simply swim in your unimaginable Scrooge McDuck pool of gold dubloons, you would swim until the end of time. But the public is finally starting to notice, and the technorati whose careers and employers (like Google) depend on having a level playing field (even though they try to tilt it in their favor when they can) are starting to notice. I'm not so optimistic that change will come, but if it does, my vote will be for whatever is closest to "burn the fucker to the ground". And some other people feel the same way.
What's the possible consequence of such an extreme change? I guess the risk of fewer Taylor Swifts. Fewer Kany Wests. Fewer Oracles. Fewer Microsofts. Fewer Steve Jobs. Those are such small consequences that, to be honest, they might be additional benefits.
It would be best if the copyright system were reduced to a smouldering ruin, so that the public could better understand exactly what we gave up when the copyright regime was created, and make a more informed decision about which incentives really are needed to make innovation happen. Until we do, the special interests created by those very laws will continue to make us pay for the favor we gave them.
Was it so bad back when you could just buy software for money? Before business models built on eyeballs and data mining instead of copyright?
Ok. Shame on me. You win. Checkmate.
But you won't fool me twice. No more support for "innovation" and "intellectual property" of any kind.
You can still ask me to pay for it, but you won't have the copyright industry stick to swing at me if I decide I'd rather get it from an unsupported source because your version only comes with digital restrictions.
Most of the public would consider those pretty enormous consequences.
Heck, I'd be upset if I had to switch away from a MacBook Pro to a commodity-PC-hardware + Linux solution for personal use today, even without any of the other things that group of people and companies you mention have produced. And I'm a-ok with paying for those things, or paying other people for doing interesting things on top of those things.
Maybe you think the risk of that actually happening is pretty small, but as-written, the consequences are actually pretty huge.
I was not part of that, and neither was I part of some minority complaining while the majority did this. I don't think this ever happened. Just because there's a pretense of democracy doesn't mean the general public is actually to blame for everything.
It's not like copyright law is something Presidential candidates run on. I think the author is overstating his case with regards to public perceptions. The first problem with public perceptions is, when laws are forged in the court room (or codified in treaties), they're essentially happening removed from public scrutiny. Not everyone is reading EFF manifestos.
It's even worse because they're technical questions, requiring a certain expertise in IT as a specialized field, meaning a small percentage of people in the U.S. understand much less care about these laws.
Where I may agree about a shift in perceptions is for a different reason. As more people have entered the field, which now has television shows about it and some of the world's largest companies to boot, there are more people with an interest/curiosity or knowledge in IT. Better able to understand the ramifications of rulings about APIs.
But as someone said, we don't really leave in that much of a democracy as we think. Corporations have a louder voice. If they stand to benefit for a position they'll make more noise (in legal efforts or lobbying) in favor of it. And it's no surprise that we're seeing two behemoths battle it out.
Are you straight or ironic? Let's not forget that, in the current system, labels get served first while those artists remain in debt. It works with the system of advances and invoicing, mostly for tours and TV, but in the present situation I've found the example with album sales: https://www.techdirt.com/articles/20100712/23482610186.shtml
They were implemented and then continue to stick around way too long in an archaic non-working state - because they were well meaning. But making sure it will actually have the intended effect is not a requirement. The enforcement side is always left to figure it out after the fact. The reality of the law is something that can be delayed, what matters is moral gratification of the policy makers.
This is sadly prevalent in American policy: laws always start with good intentions but often ultimately a) causing net-negative via side-effects or b) not enforcable so a giant money/time sinkhole. Serious scrutiny beforehand could probably detect the majority of this stuff but that's not a requirement in office apparently.
Not really, and this is where I think copyright owners have gone off the reservation with their enforcement strategy. The point of copyright isn't to keep kids from pirating a few songs, just like the point of property right's isn't to keep kids from walking across your lawn. That's not what's going to destroy the value of your property. The point of copyright is to force Netflix and Amazon Prime and Youtube to bargain with you instead of just ripping you off. And that's not hard to enforce.
You know, I've never heard this position articulated before, but it seems incredibly, and obviously reasonable. To me, the balanced position of "enforce copyright vigorously when significant value is at stake, but don't harm consumers by obsessively trying to prevent minor infringements" seems the most fair position.
That's not how facts work. You can't say "it is a fact that [hypothetical scenario] leads to [expected outcome]" except in the case of very well understood mechanisms narrowly applied. I don't think the sociopolitical effects of copyright law are one of those situations.
Edit: to counter DannyBee's assertion, I'm referring specifically to this statement -- "it is a fact that simply letting any casual passer-by copy and distribute any creative work with impunity would certainly work to rob those who may have spent countless hours developing such works of the commercial value of their efforts." The history of copyright starts with printing restrictions to control the flow of "dangerous" information, but the first modern copyright statute (the statute of anne) deliberately came into existence to protect ideas by granting protections to authors of content for n years. Until this point. Copyright was a grant of a printing monopoly.
https://en.m.wikipedia.org/wiki/History_of_copyright_law
> The Statute of Anne had a much broader social focus and remit than the monopoly granted to the Stationers' Company. The statute was concerned with the reading public, the continued production of useful literature, and the advancement and spread of education. The central plank of the statute is a social quid pro quo; to encourage "learned men to compose and write useful books" the statute guaranteed the finite right to print and reprint those works.
Comments to DannyBee's link address this mischaracterization of modern copyright history. One example: http://questioncopyright.org/comment/8491#comment-8491
Copyright law was created as a way to support a nascent publishing industry by granting it a monopoly. It was not created to help artists or whoever. http://questioncopyright.org/promise
(The history here is accurate and can be verified with other independent sources)
The claim assumes that copyright and patents are proven to be beneficial, measurably better than the prior situation. Are they? If so, how?
Not to mention, is there any proof there's no better solution?
What makes you think so? This is one of my greatest fears of another Clinton presidency.
The most likely way this is going to go down is Congress is going to pass the extension again and it's going to go to the Supreme Court. I would consider the probability of any other outcome pretty low.
As a creator, I agree with the idea of copyright, but as a consumer, I think you missed the core problem with this statement.
I think most people can agree that enforcing copyright is fine: that is, creators should be compensated for their work, if they so choose to be. They should especially be compensated if anyone else is making money from their work.
Let's pick on the music industry in particular, because they are particularly big abusers and also the ones that messed the whole thing up.
One of the places the music industry went wrong was in micro-enforcing exact means of consumption. If they had it their way, I'd have to buy 3 copies of every song if I wanted to be able to listen in my living room, car, and portable device. Oh, and another 3 copies each every time a new format came out (Vinyl -> Cassette -> CD -> every various DRM form of digital). Further, they tried to restrict which devices you were allowed to use ("this DRM only works on stuff from manufacturer X or Y, not Z and definitely not your home-built custom rig").
This is where they really overstepped, in my opinion. And they did this at the same time that the technology for digital music (MP3) was becoming practical, affordable and mainstream. (As in: fast internet, fast CPUs, affordable storage, and many portable music player products)
So what was the result? What would have been an underground and niche world of piracy suddenly was offering for free something that was significantly better than what you got if you paid. Many people even downloaded stuff that they owned on CD, because it was simpler than ripping it. It's not a stretch to simply skip the step of paying for the CD initially. Instead of building something even better and easier than Napster (and others), they declared war on their customers.
It's really not unlike the current climate of ads vs ad blockers: it's hard to feel bad for the advertisers after their methods serve malware, obnoxious and intrusive ads, auto-playing video, popups, etc. Most people could tolerate banner ads, just as most people would have been fine paying for their music, but they took it a step too far and ruined it for the whole industry.
If the music industry had been okay with format shifting and unrestricted (non-DRM'd) playback, instead just concentrating on ensuring that their paying customers could listen to the music they bought however they wanted, the industry would probably look quite different today. Sure, there would have been some piracy (both causal sharing among friends and for-profit counterfeits), but there always has been.
Instead, they attempted to completely erase piracy and extract every cent they could from their paying customers by controlling everything, and didn't care about the collateral damage they were doing specifically to the people trying to give them money. In fact, they want to go even further and put people in jail over it.
So to me, at least, it's not about free-as-in-beer, I'm happy to pay for content. But once I pay, I want to be able to listen to it in the ways I want. Forcing me to use a specific manufacturer's product to be able to listen to the content is as offensive to me as only allowing me to listen to certain types of music based on the color of my skin.
In the software world we have licenses that explicitly lay this out.
The music industry does actually have this sorted out, with ways to license music for covers (mechanical licenses) or remixing -- although the latter is definitely complicated [1] and is similar to fan fiction in that many artists/DJs get started by making remixes.
There's an entire wikipedia page on legal issues relating to fan fiction [2].
It's definitely not an obvious thing. Using your example, how do you decide if 50 Shades of Grey is a legitimate new work or a rip-off of the next part of the story Twilight was going to tell? If a similar story was released by the author(s) of Twilight would it be considered a rip-off of 50 Shades of Grey? What if it was revealed to be in the works prior to the release of 50 Shades of Grey?
[1] http://djtechtools.com/2012/03/25/legal-concerns-for-digital... [2] https://en.wikipedia.org/wiki/Legal_issues_with_fan_fiction
Copying is non-violent, whereas preventing it requires violence. And where does copying end, and thought begin? If I examine source code, or lyrics, or a short story, reflect on them, talk about them, and use what I have gleaned, haven't I copied them to some degree?
> And where does copying end, and thought begin?
In the same way we decide when a person becomes legally major. We draw whichever arbitrary line seems to make the most sense.
That a false equivalence, contracts are between two parties who both have no grant of violence.
Why? What's changed?
"Those who are creatively working to change the world - developers - loath having artificial barriers that block those benefits"
No, developers won't make a single change to the laws as long as those laws protect the rich and powerful from having to work.
It's the other way. You cleverly switched the "ought" with the "fact".
What is a fact, is that "intellectual property" is not a real, tangible thing, like physical property. We only reason about IP in this way because we say it is. IP is made of words, the concept is willed into existence by copyright laws, and is only real as long all parties agree (or are forced to) to treat it as such, but the way it works is exactly however we collectively decide it ought to work.
That's unlike the concept of physical property, which is simply forced into existence, due to the fundamental properties of matter+energy, being that that what is not destroyed or created, nor goes away when you stop believing in it. Properties that actually apply just fine to information too, it exists in the physical world after all. It just represents such a minuscule amount of energy that it appears almost completely free, even when compared to just the energy required to entertain it as a human thought ...
Information isn't really free, people just get all twisted up about the fact that it's fundamentally worth very little, compared to almost anything else. But the information was never the valuable part. If you offer to clean my dirty kitchen, that's worth some value ultimately based on energy required to perform the service. Note you can only sell me this service once. If you just tell me about a clean kitchen, that's also worth some value ultimately based on energy required to perform the service--roughly the same order of magnitude as the value of the utterance "cool story bro".
We're really still very much haggling over the price of information. And the offers on both sides of the table are not even remotely in the same ballpark. Both sides are playing hard, using all the tricks in the book and out of the box.
And that's possible, all right, I guess. You can force or decide to artificially prop up the price of something way beyond its value. They do that with diamonds and probably many other things. There's some tricks that can make that work for a rather long time, even. But ultimately you're not extracting value from the thing, but a power differential that indirectly imbues the thing with value.
This indirection is a way to create an "ought", but not a fact.
Which is fine in principle, there are many "oughts" I support completely, making up what I believe is good and right. But I accept that I cannot argue those as "facts", but only in other ways, preferably based on an ethical framework (but if you must, any power differential will do).
Now, I believe, and I don't know if this is a fact, that the situation is untenable. Maybe I'm overlooking something, but I doubt even copyright law can artificially prop up the value of information indefinitely. It merely postpones the inevitable crash to its true value. For instance, I am an artist, I can make a beautiful illustration or piece of music, and give it away for free. Not all artists might want to, but enough will to kick the bottom out of the market, if slowly over time.
The only way to prevent me from doing that, is to forbid me giving away my work for free, or forbid/complicate the public domain. What is what would happen if I offer my work to the world, but I lack the control to keep it free, only for some party that will play the game, to swoop in, assume ownership and sell it as IP even though it is against my wishes. Which I hope you agree would be at least as bad a situation as today's content producers crying about piracy=robbery. Yet it is exactly what today's audio/video streaming services are lining up to enforce. Someone has to own your works as intellectual property, or they will own it for you.
And ultimately the content producers get screwed out of their rights, which I hope by now you also see coming from miles away, because the value never came from the content, it came from the power differential enforcing the concept of intellectual property.
As a content producer, I'd MUCH rather get screwed over by piracy (which is available to everybody equally) than giving the large "content industry" corporations the exclusive screwing me, giving them the power to enforce intellectual property rights however they see fit. But don't think for a moment that I, small time content producer, will be in control of my content for anything more than its fundamental worth.
And either way, as an artist, I'll keep producing beautiful things because I enjoy doing so. Regardless.
And either way, if you want to make a living off content production, the only way is to sell the service (commission), not the content. Regardless.
This is incorrect (and I didn't grow up in the digital age, unless you call 4 function calculators the "digital age"). There is no such right. It is not a human right, nor is it something that you are intrinsically entitled to have.
Copyright is something that is endowed upon you by the government. It is intrinsically owned by society. You are granted a limited monopoly on copying. If society did not grant you this monopoly, you would not have it. This is how it has worked historically and this is how it is written in law currently.
The problem that you may be facing is the "right" in "copyright". It is an overloaded term. It refers to your legal ability rather than your moral entitlement.
Because copyright is not an intrinsic right, but rather a societal grant, it is important that we weigh the societal benefits of this grant. In my opinion, in this case the ability to receive a copyright for an API is counter to the intent of copyright. For example, why can we not copyright recipes or game rules or fashion designs? I won't rehash 100 years of legal debate on the subject, but rather give my opinion that similar criteria should be applied here.
You're attacking a statement that didn't exist in the parent post.
So, now I am a bit confused. Do they believe that they are morally entitled to a monopoly, or do they believe that it is simply a good idea? Because in the first case, it doesn't really alter my post. From societal standards, they are not morally entitled to the monopoly. The parent is, of course, free to disagree but they stand against centuries of legal history where this just hasn't been the case. It would be incorrect to state that only those who grew up in the digital age disagree.
If it is the second, then I will agree in general, but I think we should be very careful to balance the benefits. I believe that copyright on APIs will cause significantly more harm than good. So in this specific case, my opinion is that it is not right (as in not a good idea) to do it. It is certainly a debatable issue, though, with many reasonable arguments on both sides.
I disagree with that. To the extent that any rights are "natural" or "human" (as opposed to all rights being creations of the government), I think copyright is entitled to that status more so than say rights in land. My back yard is something that was here before I was born and will be here after I die. I had nothing to do with its creation, and I just bought it from somebody who bought it from somebody who stole it from the Indians. How on earth do I have a greater, more fundamental, right to that than to something I created out of non-existence?
If you build a business, you build it on the back of government-educated workers commuting on government-built roads, etc. "You didn't build that" and whatnot. But we consider you to have a moral entitlement to own and control your business, without assuming society has any special right to it other than universal obligations like paying taxes. But creative works--while they are influenced by society to a degree--are to a much greater extent singular products of creation. But you want to say you don't have a moral entitlement to it?
So, while there is a case for limited (a word which should have meaning) government-granted monopolies on products of the mind, they just don't have the same standing as rights which, if not natural to being a human, have a longer tradition than modern national governments. The word "natural" has meaning at least in terms of precedence, if not bloody in tooth and claw nature itself.
In other words, we could claim and defend a right to our lives and property and freedom to move about long before we could claim such a right to our thoughts as recorded somehow. We had to wait for government granted monopolies for the latter.
Finally, government itself holds copyright away from other rights. It's an experiment. It doesn't claim to be protecting such a right as a basis for legitimacy, but granting a limited protection. It's the difference between acquiring legitimacy and using it.
When you make a creative work, you own that work. This is a human right. It is yours. If you never show it to anyone, then they can't copy it. So in a way, you have the same monopoly in a trivial sense.
Let's say you have an apple and you eat it. I happen to have an apple to and watching you eat it I think, "That looks delicious. I'm going to eat my apple too". It's my apple. I'm allowed to eat it. I'm allowed to copy your action. It's a basic freedom that I enjoy.
Now imagine that you had a monopoly on eating apples. Well, that's pretty horrible for the world. Even if you were the very first person to think of eating an apple, it would be terrible for us to give you a monopoly on eating apples. There are lots of apples. I'm not depriving you of your human right to own apples (or eat them if you choose). Just because you happened to think of it first is no reason to deprive others.
The important thing is: you have no human right to stop others from eating apples. Even if nobody had thought of it before, your human rights only go as far as yourself and the things in your possession. Similarly, even if I was hungry, I have no human right to force you to show me how to eat an apple. It's your apple. It's your body. You can do what you like.
Let's say you have a piece of canvas and some paint. You paint a picture of an apple on your canvas. I think, "Hey, that's pretty cool". I happen to have a canvas and some paint. They are my canvas and paint and I can do what I want with them.... except paint a picture of an apple that looks like your picture. Because you have a monopoly on painting pictures that look like that.
This is almost as terrible as giving a monopoly on eating apples. However, as a society we have decided that we want to encourage innovative apple painting. So even though it is kind of strange, we grant a limited monopoly to anyone who paints an apple that looks different than apples that anybody else has painted previously.
So instead of a human right, what we've done is get together as a society to say, "Apple painting is an important part of our culture and we like to see new apple paintings. It is boring to see the same picture over and over again." We all agree (collectively, through our society) to abstain from copying other people's apple paintings for a certain period of time.
Now, do we have the right as a society to force you to divulge any new apple paintings you might draw? If there is a sudden famine and the only food we have are apples, do we have the right to force you to show us how to eat apples? I am not an expert in these fields, but I suspect that these examples would infringe on human rights, even if it would help society as a whole.
I hope that makes the issue more clear.
That is the most computer-programmery way of saying "homophone" or "different sense of the word."
Don't know why you're being downvoted for giving such a comprehensive and thoughtful comment. Ridiculous really. I say even if you disagree with grellas don't donwvote, please reply and put the same amount of effort into the reply as was put into the comment above.
My paraphrase: ~[No one outside of Oracle is overly sympathetic to their money grab against Google. Everyone sees their claims as overly-litigious--based on the simple fact of having purchased Sun Microsystems rather than a legitimate defense of their own creative and value-creating effort.]
The OP seems to make some mistakes of fact. The decision was not Alsup's, but the jury's finding of fact: Google's use is fair even if API's are copyrightable (Alsup believed they weren't).
For the quote you don't understand, I believe the mistake is only in a single character, 'is' should be 'in' (to which I present Larry Ellison as the central counter-example).
As to the first round that occurred 4 years ago, the decision was Judge Alsup's. Here is my analysis of that decision at that time: https://news.ycombinator.com/item?id=4050490#up_4051761
Of course, in the verdict that just came down, the decision was that of the jury's and, yes, Google's use is fair even if API's are copyrightable - that is what fair use means.
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
It's a somewhat surprising result, because two of the factors weigh heavily against Google (it's a commercial work, and was important to Android gaining developer market-share). Oracle's strategy going forward, both in post-trial motions and in any subsequent appeal, will be based on arguing that no rational jury could have applied these factors to the undisputed facts of the case and concluded that the fair use test was met.
It's also not a particularly satisfying result for anybody. If API's are copyrightable, then I can't think of a better case for protecting them than in this one, where Google created a commercial product for profit and there was no research or scientific motivation. It wasn't even really a case (like say, Samba) where copying was necessary to interoperate with a closed, proprietary system. Davlik isn't drop-in compatible with the JVM anyway.
That makes Oracle's win on the subject matter issue basically a pyrrhic victory for anyone looking to protect their APIs. They're protectable, but can't be protected in any realistic scenario.
And if you're in the camp that believes APIs should not be protected, this precedent--if it stands--means that you'll have to shoulder the expense of going to trial on the fair use issue before winning on the merits.
As to factor number 2, the nature of the copyrighted work: For the last 20 years or so, courts have been backing away from the expansive approach of Whelan v. Jaslow and instead using a Computer Associates v. Altai "abstraction, filtration, comparison" analysis; in the end, courts typically hold that copyright protection for functional aspects of software is "thin." See, e.g., UC law professor (and MacArthur "genius grant" recipient) Pam Samuelson's 2013 review of the case law. [1]
From what I've read of the facts, number 3 -- the amount and substantiality of the portion used from the copyrighted work in relation to the work as a whole -- might have weighed heavily in Google's favor.
As to number 4, I didn't get a sense whether or not the evidence showed that Android has had a material adverse effect on the market for Java; that weighed heavily in the Supreme Court's thinking in the 2 Live Crew case.
[0] https://supreme.justia.com/cases/federal/us/510/569/case.htm...
[1] http://scholarlycommons.law.northwestern.edu/cgi/viewcontent...
Samba never copied anything.
The interoperability argument was simple. Google wanted to use a language that was familiar to most and where developers could take existing code and port trivially. There are developer tools on the market that have done that for decades.
Davlik isn't drop-in compatible with the JVM anyway.
Oracle were never going to get away with that crap argument. To say that had Google copied all the APIs and created a compatible JVM that would have constituted fair use is laughable frankly.
Sun also open sourced Java which doesn't help them at all, and Oracle somewhat pathetically tried to backtrack on that.
That makes Oracle's win on the subject matter issue basically a pyrrhic victory for anyone looking to protect their APIs. They're protectable, but can't be protected in any realistic scenario.
The only sensible outcome. Had Oracle won we would have had years of court action in the developer software tools market until someone saw sense and simply ruled fair use in all cases. That may still happen.
And if you're in the camp that believes APIs should not be protected, this precedent--if it stands--means that you'll have to shoulder the expense of going to trial on the fair use issue before winning on the merits.
We'll have to get to a point where if court action is raised then it will automatically have to be thrown out. You can copyright APIs, but you can't tell others how they should be used.
Besides, how is the argument that Google effectively didn't copy enough at all consistent with the fair use factor regarding the amount of expression copied?
The trouble is that interoperability takes many forms and can't be shoved into a neat box like that.
What does that mean? What privileges would such a copyright provide? What could I do with the copyright that I couldn't do without?
What privileges would such a copyright provide?
In practice? None.
And that's about it.
According to this case, they did.
Unless you are arguing that network protocol compatibility is a different thing? It seems to me that there is a lot of overlap, since Samba relies on re implementing the same behavior as a Windows file server.
I don't know if APIs should be subject to copyright or not. I certainly don't want them to be. But since APIs have been found copyrightable, it's hard to understand how this wasn't open and shut for Oracle.
It should be expected that when a district court and its jury have their hands tied by a bad appeals court decision, the outcome will look a bit odd. In many ways our system of case law functions like a body of software where patches can only add lines of code, not remove them. Convoluted solutions to work around previous mistakes end up practically set in stone and refactoring is at best a once in a lifetime opportunity.
> And if you're in the camp that believes APIs should not be protected, this precedent--if it stands--means that you'll have to shoulder the expense of going to trial on the fair use issue before winning on the merits.
worth remembering that since that decision was made by the Federal Circuit, it has no bearing on the rest of the court system when it comes to copyright. There is no place where "APIs are copyrightable" is binding precedent.
Any lawsuits that don't end up in the Federal Circuit (which pure copyright suits never do) will have to start from "are APIs copyrightable?" before having to make any sort of fair use defense.
It seems (based on this case) that you could make that happen by simply throwing in a patent claim, even if you'd get defeated on that point (which happened to Oracle). Not sure if that's a general rule one could exploit, or something that just happened in this case?
Starting from "Are APIs copyrightable" all over again? Great......... More legal fees, court time and nonsense.
"Under the first of the four § 107 factors, "the purpose and character of the use, including whether such use is of a commercial nature ... ," the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. "
Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994)
I will simply point out, as i did in another comment, that the court of appeals in that case did in fact, claim that because 2 live crew took the heart of the old work, and made it the heart of the new work, that it was not transformative, and SCOTUS said that was wrong.
Disclaimer: I work for Oracle, though not on Java.
Didn't a jury just do exactly that? I realize Oracle must have an opinion contrary to the ruling else what's the point of an appeal, but will that really be the line of attack? We don't like the outcome, therefore we question whether the jury knew what they were doing?
Actually, that's pretty much exactly it. An appellate court is capable of ruling a jury finding as contrary to the weight of evidence. It's basically a mistrial ruling -- that the jury did not perform as required -- and therefore permits a retrial. It's a pretty rare occurrence, though.
EDIT: This seems to be a good review:
http://www.litigationandtrial.com/2012/04/articles/trial/con...
Specifically: "Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice."
So, the basic argument from Oracle could go something like, "The jury did not properly weight the fact that the copy was performed for commercial reasons and therefore cannot be fair use."
I can certainly see an argument here that certain facts, such as commercial use, were not properly considered by the jury. Commercial use is typically a very large factor in fair use, and should receive a correspondingly heavy weighting.
Also, remember that this would merely permit a retrial. It would not be an immediate ruling for Oracle, as one normally thinks of appeal decisions. It would be a big reset button on the whole process.
But the federal circuit could surprise us yet.
That's highly debatable - both the need for interoperability and the proprietary parts. Making the platform attractive to developers is a driving need making it interoperable is a byproduct of that. And Java was open sourced in 2007.
The GPL does not depend on copyrightable APIs, and says nothing about what Oracle is trying to argue. Linking to a library and merely using an API are two different things. The GPL depends on the former and says the latter is neither here nor there.
True in terms of the GPL as such, but the FSFs interpretation that the GPL applies to works that link, even dynamically, to a GPL covered work, which it holds to be derivative works, depends absolutely on the API presented by a library being a copyright-protected element (it also probably can't stand even then without an extremely narrow interpretation of "fair use".)
(see the cite to campbell v. acuff rose, etc)
In fact, the precise argument y'all seem to make is disassembled in that case, because it's what the original court of appeals decision was in that case :
"The Court of Appeals reversed and remanded, holding that the commercial nature of the parody rendered it presumptively unfair under the first of four factors relevant under § 107; that, by taking the "heart" of the original and making it the "heart" of a new work, 2 Live Crew had, qualitatively, taken too much under the third § 107 factor; and that market harm for purposes of the fourth § 107 factor had been established by a presumption attaching to commercial uses."
They also explicitly said: " The statutory examples of permissible uses provide only general guidance. The four statutory factors are to be explored and weighed together in light of copyright's purpose of promoting science and the arts. Pp. 574-578."
Good. The CAFC ruling is indefensible, like most everything else that emanates from that court. If nothing else this ruling strikes me as a workaround for having an appeals court that is bought and paid for by special interests. For copyright and patents, the courts are so heavily stacked in favor of major rightsholders, and so abused by them, that for those who favor copyright reform it's probably well past the time to hope for rightful justice under the law and better to adopt a "victory at any cost" stance, much like our opponents (i.e. Oracle, etc.) already do.
If Google weasels out of liability because of some lame fair use defense that probably "technically" shouldn't pass muster, I can hardly give a damn given how often the law is twisted in the other direction already.
What recourse does Oracle have now? Didn't the Supreme Court decline to take this issue up last time round? Does that mean this case is closed?
One of the many things that makes fair use tricky is that the statutory factors aren't exclusive: 17 USC 107 just says that "the factors to be considered shall include" the 4 factors.
The letter of the law for fair use is often not all that helpful.
At the Circuit and Supreme Court level, expect Google to cross-appeal against the copyrightability issue again (the Ninth Circuit might well rule differently than the CAFC did applying -- in theory -- Ninth Circuit precedent, and in any case I think they'll need to do so at the Circuit level to keep the issue alive for the Supreme Court, which may week take the issue up on a final speak though it declined to do so on an interlocutory one.)
Sadly, it won't. Ars Technica has Oracle's general counsel saying "we plan to bring this case back to the Federal Circuit on appeal"
I wish Gunn v. Minton had been more expansive.
Your parent already answered that question (although I don't blame you for not noticing):
https://en.wikipedia.org/wiki/Judgment_notwithstanding_verdi...
I have seen this argument a lot but it doesn't make sense to me. Who says it has to be a drop-in replacement at the binary level to have interoperability value? The source-level interoperability is obviously valuable to developers, why ignore it?
I thought that since the court which ruled that APIs are copyrightable wasn't the court which would normally hear the appeal (due ot the patent issue) their ruling doesn't set a precedent?
1) Is incomplete. There should also be explicit mention of the creation and extension of open software ecosystems, which are of tremendous public benefit in both commercial and nonprofit forms. I guess this is partially covered by (4).
[1] https://developers.slashdot.org/story/12/05/16/1612228/judge...
Movement to a few minutes of terse explanations, including what the acronym GNU stands for: GNU is Not Unix.
“The G part stands for GNU?” Alsup asked in disbelief.
“Yes,” said Schwartz on the stand.
“That doesn’t make any sense,”
http://motherboard.vice.com/read/in-google-v-oracle-the-nerd...
Schwartz: "Back in 2009, Android WAS lame."
Google atty: "Move to strike, your honor!"
They had to get a tech guy in to open Java files on a computer. They didn't have an IDE installed on there and there were complaints that there were too many folders!
Lesson 2: See Lesson 1
Sarah's reporting: https://storify.com/sarahjeong
Parker's story: https://www.eff.org/deeplinks/2016/05/stakes-are-high-oracle...
> reporting done right
I'm not sure. Surely it would only benefit her if she weren't limited by 140 characters, right?
So it was okay to choose Twitter, I think.
It's just the "breaking news" frenzy applied to social media. Nothing to celebrate, imho.
But the fact that Oracle could get this close and spin deceit to a non-technical Jury to decide whether using API declarations from an OSS code-base would in some universe entitle them to a $9B payday, is frightening.
Yes this was really a close one. I am breathing a sigh of relief now.
Had APIs been found not to be copyrightable, that would have been great and opened up the development ecosystem for us to use and adapt each other's APIs.
Had it been clear that no this sort of thing wasn't allowed then small developers would have had protection that they could publish their APIs without fear of a deep-pocketed competitor saying "thanks, we're going to muscle you out of the market, using your own design to do it, and ignoring any of that GPL nonsense you've licensed it licensed under, we're just having your API as our own thanks". Not an open world, but at least everyone would be on a level field.
But a "fair use" finding of fact sets no precedent for anything else, gives no protection for the ordinary developer, and essentially means "it turns out you can do this if you're big enough to afford to pay high-tier lawyers for six years". (ie, BigCorp can copy APIs with impunity, but you can't)
Or maybe we can just trust her.
Any lawyers around? I wonder if Google can claim legal expenses back from Oracle.
I think that'd be good for the ecosystem as it'd send a message that there will be consequence for pursuing frivolous lawsuits.
From a developer perspective, the ideal and just end result has always seemed rather obvious. However, the multi-year history of this case demonstrates the correct legal answer not so obvious, at least from a legal perspective.
For example, settling the issue on fair use was definitely not how most people thought/hoped this would shake out way back in the beginning of the law suit(s).
I weep for the parallel universe in which Red Hat had been in a position to open all of Sun's technologies properly.
What happened to Sun was an outright catastrophe, but we've mostly recovered with OpenZFS, MariaDB, Jenkins, LibreOffice, etc. The major piece we're missing is a clean fork of VirtualBox. Android's also not in a good state to replace desktop Java, but it could conceivably be one day at least.
The trouble is, they would have had to keep a lot of legacy crap going like Solaris and SPARC which probably wouldn't have appealed to them. Sun was, and still is, haemorrhaging cash.
Of course, even back then nobody wanted to work for IBM or HP. Heh.
But they'd have to keep all those support contracts going, which is a pain. That's more Oracle-side.
I'd like to note that Ars Technica's coverage of the trial has been excellent throughout.
This case had literally nothing to do with copying code.
So yes, it most definitely isn't about copying code.
Exactly?
I wonder though how universal that ruling would be. Is any reimplementation of APIs going to be fair use, and if not, what are the criteria?
Anyways I wonder how long this is going to keep going on for as I'm assuming Oracle will appeal.
Mueller is so discredited he doesn't have any weight at all.
> As you can see, this blog's Oracle v. Google anti-unfair trial campaign--not affiliated with any party in any way whatsoever--is continuing.
At least the Oracle vs. Google case revealed that he was actually a paid consultant for Oracle and Microsoft. It might be bad form to attack his character rather than his arguments, but it does save time when dealing with Müller.
Or maybe not. Most IP lawyers are less unhinged than Muller...
Can I reverse engineer the private API of a mobile app, then implement my own client to talk to its servers?
What if I create my own "bridge" API to talk to the private API? Can I then sell access to the bridge API, allowing developers to use the private API of the app through my service?
And how does this relate to, e.g. running private world of warcraft servers with modded code that allows purchasing in-game items? (See http://www.themarysue.com/blizzard-private-server-lawsuit/)
Unless, of course, the declaring code is declaring declaring code, as in Prolog and its ilk.
* Oracle sues Google on copyright grounds.
* Case is overseen by Judge Alsup, who taught himself Java in order to understand the technical merits of the case. Case is split into two phases: copyright and patents.
* A jury finds Google to be infringing on copyright, but deadlocks on the fair-use defense. The jury finds Google to be non-infringing on all patents.
* Judge Alsup breaks the jury's deadlock on copyright by ruling that APIs are not copyrightable in the first place.
* Oracle appeals the patent claim, Google simultaneously appeals the copyright claim (it wasn't 100% in their favor).
* The Federal Court of Appeals (9th Circuit) hears the case due to the patent portion. It overturns Alsup's decision, declaring that APIs are in fact copyrightable. It remands the case back down to Judge Alsup.
* Google petitions the Supreme Court to hear the case instead, but the Court declines the request.
* Judge Alsup oversees a second trial, this time solely on the fair-use merits.
* The jury finds that Google's use of the APIs indeed falls under fair use.
The Federal Circuit has a history of ruling in favor of broader intellectual property rights and being periodically reined in by the Supreme Court. They do it for patents, and when Oracle uses a losing patent claim to get copyright issues before the Federal Circuit, they rule for expanding copyright. If Oracle hadn't included patent claims, the appeal would have gone before the Ninth Circuit and probably lost. The Federal Circuit did a farcical job of applying Ninth Circuit copyright precedent, especially in contrast to the thorough job Alsup did.
Also, there were a lot of third party drivers and software they couldn't use the GPL with. That has now largely disappeared.
It seems to me that all that this necessitates is for software publishers to include an open license for their APIs, or to release it into the public domain.
In fact, it might even be beneficial, since companies can license different APIs to different customers, and have additional legal force prohibiting the use of APIs that are unofficial or unauthorized to them.
Seriously, I think this is a good verdict. I think that Oracle has been doing a good job sheparding Java, but this law suit really seemed to me to be too much of a money grab.
The Supreme Court denying cert is not an endorsement of a ruling. No precedent is set. They could completely disagree with the lower court's ruling but not take the case for any number of reasons: there's no split between circuits, so they want to let other opinions develop before taking on a subject, they don't believe the case details are a good test case for the subject (something the FSF argued was the case for this suit), etc.
It's still possible that the Supreme Court could take this case and Oracle might go back to losing on copyrightability rendering fair use moot.
My understanding is that they refused to hear the case at the time. Is that, legally speaking, the same thing as agreeing with the circuit court, or could they have just refused to hear the case for some other reason (e.g. because they wanted to see the ruling on fair use first)?
* - as with everything in the legal system, there are exceptions and fuzzy lines, and IANAL.
The problem, however, is that the current fair means test in the US code probably never envisioned something like an API. Arguably, there should be a means test along the lines of "Exists primarily to provide a means of interacting with other copyrighted works" or something along those lines.
Essentially, the interfaces shouldn't be copyrightable argument is an outgrowth of the fact that, if they aren't copyrightable, the fair use protections around compatibility etc. (e.g. in Lotus v. Borland) aren't as strong as one might like.
Name one benefit. Keep in mind we've been working on the opposite assumption for the entire duration of computing history.
That decision was not made by the Supreme Court. The Supreme Court has not heard this case...yet.
Now Google was ruled okay to use that single, small function, or what was this about?
A little more info would be nice for those who aren't following this closely.
Now we saw that trial, where jury ruled on fair use. It was fair use.
(nothing to do with any small function, that was in 2012)
This is a massive ruling, heres to hoping it stands
No way.
Surely not Google, if they hadn't bothered the first time around.
Of course it is hypothetical as I absolutely do not think Oracle will consider doing such thing.
Many of the Oracle-hate group aren't aware of the NC Computer and the JavaStation, or that already in 2000 most of the Oracle GUI tools were Java based.
So on one hand they have lots of interest in Java and have been better than Sun in its last years, but they also have not been handling JEE, JavaFX and mobile support on iOS and WP that well.
Also many of the nice goodies in language evolution have been postponed for Java 10 (AOT, value types, JNI replacement).
Being too old at this game I have the same feelings that Java might follow Clipper or Delphi footsteps, if Oracle looses interest in the tech stack and no one picks it up, regardless how ingrained Java is nowadays.
IBM is not only looking at Swift, they also have made J9 modular as a framework for implementing language runtimes.
At least I think it is pretty cool (and very gracious of Oracle)
That story leaves out significant details, and his description of the reason is wrong. He leaves out significant prior sources and reasons, to the point your statement "It was not created to help artists or whoever" is simply wrong.
Wikipedia provides a far better history with extensive sources [1]. Note for example the section "Early Developments" where they list precursors to anything in your source as having significant components of individual and author rights.
Note also in the US copyright law was started by author guilds wanting author protection, and the first federal copyright act in 1790 was about protection for authors, not for printers. This was an extension of many states laws that had passed author protections.
I note others have since reposted the same links in reply to DannyBee for the same reason.
How it is off topic since it directly addresses that claim?
Did it get detached from the parent, removing context?
When comments get aggressive, good conversation flees the room. Such spats also go inevitably off-topic, since how-right-I-am-and-how-wrong-you-are is not a topic.
The Early Developments section you talk about is about the concept of copyright as it exist today, rather than the history of copyright law as it was made. The French law, while tangential, followed a different path and focus heavily on the concept of moral right, concept which does not explicitly exist in the US copyright law. US law focused instead on statutory monopolies, and loosely match that of the French commercial right that authors was granted. Authors moral rights, as the existed in French copyright law, was instead weakly incorporated into libel laws.
You claim that the US copyright law was started by authors guild, but three states had already enacted copyright statutes prior to the Continental Congress resolution. Where is your evidence that author protection was the intention behind the law makers of the time, which goes in rather stark contrast to every other aspect and the final text which focuses on the commercial aspects and not the rights of the authors. If the US copyright law was derrived from the French law, why is there no concept of "authors moral right" as there is in many EU countries to this day?
Which is why you can check the references. When the article linked above about copyright is clearly coming from an anti-copyright source, and does not mention multiple important things Wikipedia does, I think any intelligent person realizes the Wikipedia source is more credible.
As to overall accuracy of Wikipedia, many, many studies show it is quite accurate. Google and read the evidence.
>You claim that the US copyright law was started by authors guild
It's not my claim - Wikipedia sourced it. Since you don't like it, here [3] are some details with names and dates you can check, and here [4] is a paper titled "The Anti-Monopoly Origins of the Patent and Copyright Clause" with significant details.
>three states had already enacted copyright statutes prior to the Continental Congress resolution
"The Copyright Act of 1790 was the first federal copyright act to be instituted in the United States, though most of the states had passed various legislation securing copyrights in the years immediately following the Revolutionary War." [1]
And....
"Twelve states passed copyright laws prior to the work of the Continental Congress. Delaware chose not to pass a copyright law." [2]
Here [2] is the text of the 1790 Copyright Act. It is completely about protecting author rights - every single section details this. The word author occurs 21 times in a page and a half.
For example, (cutting out wordy clauses - go read the original if you doubt this)
Section 1 - "the author...shall have the sole right ... of printing, reprinting, publishing and vending..."
Section 2 - "any person .. without the consent of the author...shall forfeit all and every sheet and item.. and pay the sum of fifty cents for every sheet..."
Section 6 - "any person .. who shall print ... without consent ... of the author.. shall be liable to suffer and pay ... all damages.."
>the final text which focuses on the commercial aspects and not the rights of the authors
I have no idea how you arrived at this statement. I just cited the law which clearly, in every section, enumerates authors rights. Care to cite this "final text" which does not?
[1] https://en.wikipedia.org/wiki/Copyright_Act_of_1790
[2] http://www.copyright.gov/history/1790act.pdf
[3] http://eduscapes.com/bookhistory/intellectualproperty/4.htm
[4] http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?articl...
You can also check the references from the article i cited. But apparently, those references are somehow wrong, and yours, somehow right, simply because they are cited by wikipedia?
Would you care to point how they are wrong?
Instead you simply say it's "100% inaccurate", because a few other law articles say something else. That is quite a claim!
(Note, the ones Karl is citing in his article are in much larger law journals, books on copyright history, etc. The things Wikipedia is citing are mostly pretty niche)
I think any intelligent person realizes wikipedia is mostly astroturfed these days, and also usually represents popular opinion on things, not accurate history.
If you want to point out details, i'm sure Karl will correct it.
"Wikipedia provides a far better history with extensive sources [1]. Note for example the section "Early Developments" where they list precursors to anything in your source as having significant components of individual and author rights. "
These citations are, honestly, mostly BS. Read the early documents yourself, and you'll see they pretty much make it up as they go along.
"Note also in the US copyright law was started by author guilds wanting author protection, and the first federal copyright act in 1790 was about protection for authors, not for printers."
This is kind of irrelevant to why copyright law came to be, since by then it was already a thing, and part of the entire point is that by then, authors and others had started trying to convince others that it was needed for protectionist reasons, claiming that history also felt a need to be protectionist, when this is completely inaccurate.
In the modern world however, it seems positively damaging, with the likes of China, with no respect for IP and copyright rocketing ahead, most of the innovation happening in the west is in ways to bypass it, GNU is Not UNIX, Lame ain't an MP3 Encoder... and the old guard that depended on the old way falling ever further behind.
In the days of getting material simply by asking a computer to fetch what you want (and nothing more than a few watts of electricity being consumed to do so) copyright simply doesn't make sense in any respect.
But I suspect that opinion is just as unwelcome as the OPs.