I'd also just like to give huge props to Sarah Jeong for keeping up such a high-quality live stream of tweets over the course of the entire trial. That's reporting done right.
Yep Sarah Jeong @sarahjeong, and Parker Higgins @xor (of EFF) both did great jobs in communicating about the trial. They both provided an account along with some context.
How so? This isn't something where you'll have to decide in a split-second wether to take to the streets in response to this or that development. You could argue that there is some value for stock traders (and tbh, given the result, even for them it's basically the same as it was before), but that's about it.
It's just the "breaking news" frenzy applied to social media. Nothing to celebrate, imho.
Sorry but this was an example of how a real time feed on twitter can be informative in a way that a long form piece could not. A summary of the trial would not be the same as the minutiae that she was able to convey. It was done really well. If all you get is long form from New Yorker or Le Monde, you're missing out.
Not having a limit does not mean you can't post real time updates. But having the limit means you sometimes can't post even a single coherent sentence.
* 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 isn't the Ninth Circuit, and that's really the whole problem. The Federal Circuit is the special-purpose patent appeals court. For a case like this where they were hearing the appeal because there were patent claims, they are supposed to treat the non-patent issues in the manner of the local circuit (9th).
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.
Of course they can. But appeals typically have little chance of success, and a case that has already gone all up the appeal chain once and had a complete retrial?
It hasn't had a complete retrial. In the first trial, the judge (Alsup) ruled that APIs cannot be copyrighted. Google also had a fair-use defense, but didn't waste time on the trial with that, because Alsup had already ruled that APIs could not be copyrighted. Oracle lost that trial.
Oracle appealed, and at the appeals court won a ruling that APIs could be copyrighted. The case got sent back down for a trial that was only about the fair-use defense, not a complete retrial.
You're not exactly setting the bar very high for Oracle. VirtualBox was mostly GPL'd before its developer was bought by Sun, which was later bought by Oracle. Saying that it's "very gracious" of Oracle to not kill a successful project or fire all its developers makes it sound like you've been brainwashed under an oppressive tyranny.
You're a special kind of ingrate. Oracle spends a great deal of its treasure on open source software. They maintain and innovate on those projects at great cost to themselves. You have no leg to stand on. Oracle is doing a nice thing for the engineering community. They don't have to, but they do. It is nice of them. You are being rude
> "They maintain and innovate on those projects at great cost to themselves."
Net cost? Most certainly not. That's not how Oracle works at all.
Saying that they aren't entirely opposed to participating in mutually beneficial arrangements is still setting the bar pretty damn low and is not a distinction worthy of any praise.
That's not how favors work. When someone does something nice for the engineering community you use it with gratitude (if you do use it). Oracle makes cool software. It doesn't cost anything to aknowledge it, but it sure makes you look like an ass to argue that they don't. So many people use vagrant right now and it just works because of VirtualBox. That's cool. No bar to clear. It's just nice that Oracle paid for that
Vagrant works with many other VMs as of version 1.1. Oracle didn't create VirtualBox, they bought it. I avoid using it, like I avoid depending on any Oracle-owned software. Especially if it means I would be obligated to thank them for it.
Oracle paid for all the work done on VirtualBox. They paid for the past work and they pay for current work. You can dismiss it as something they bought, but that doesn't address that they paid for all the past work done on it when they bought it. It doesn't address that they pay to maintain and innovate on it. Everyone knows vagrant works with other VMs. Almost everyone uses VirtualBox. You are not obligated to thank them, but you are an ingrate if you do use it and don't have an attitude of thankfulness that it works well for you (if that is the case). I mean, if a person does that they really are ungrateful. What else do they complain about? Do I hate working with them? Probably. Attitude and acknowledgement of the way things actually work and who pays for them is a big part of being a nice person
Great news to a degree. It still means APIs can be copy-written which is a bit unfortunate in my opinion. But they won on fair use which is still a victory.
Anyways I wonder how long this is going to keep going on for as I'm assuming Oracle will appeal.
No it's not. It effectively means I can copy code without respect to the original author's rights, slap a new license on it, and call it a day. As long as it's under the guise of some higher ideal of software development -- which we know from historical accounts this was definitely not the case.
These are the statutory fair use factors the jury was required to consider (17 U.S.C. 107):
(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.
Would that be like Oracle arguing jury nullification? It seems that the case law on nullification is that the jury's verdict is the definition unless vacated by procedural error. Thoughts?
It's the opposite, in that instead of the jury overruling the judge on law (normally the province of the judge), the judge overrules the jury on the ultimate factual question of liability (normally the province of the jury). The required showing is accordingly exacting (though hardly impossible to meet in practice): no rational jury could have reached the same conclusion.
In a sense, in that you could view any post-verdict judgement contrary to the verdict as a ruling that the jury attempted nullification of the law where it lacks the power to do so (nullification is only a power juries can exercise to return criminal not-guilty verdicts, other than that, courts may set aside the jury verdict of no reasonable jury could find the facts necessary to the verdict returned on the evidence presented.)
>Oracle's strategy going forward, both in post-trial motions and in any subsequent appeal, will be based on arguing that no jury could have applied these factors to the undisputed facts of the case and concluded that the fair use test was met.
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?
> 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.
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."
That's going to get messy. Very messy. It has to be crystal clear really for that to happen, but all you'd end up with is more debate on what parts have greater weight.
I don't see why it would necessarily get messy. Remember that appellate court does not accept new facts. The judges reviewing the case will do so based entirely on the facts found during the trial case and make a ruling. The only thing they would need to rule on is whether a particular fact was weighted properly by the jury. Remember, jury members are not expected to be experts of law; that's the judge's realm. So it's possible for them to misapply the law, and this process is a way to correct that.
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.
You are presenting a very cynical view of the justice system and judges without any reasoning backing your claim. "Good luck with that" is not really a valid debatable response.
There's a huge backlog of fair-use cases for them to base their decision on. I don't think it would be particularly difficult or nasty in this case, given that the ability to copyright APIs was a presumed fact during the trial. Also, the judges do not all need to agree; majority vote wins. So the moment they feel that further debate is unproductive, it's time to vote and move on.
It is going to have be be very clear and something that can be ruled on in a short space of time. There is no way you can argue at all that anything clear has been missed here, or argue in clear terms how things have been weighted.
Stuff like arguing that commercial reasons haven't been weighted properly is entirely subjective, because it depends on arguing how transformative use is - and that is what has happened here. The jury have already decided on that one. The 'backlog' of fair use cases will simply throw up the same subjective issues.
An application like that to a court is not going to impress any judge one iota. You can't just wander back into court and argue "The jury has been unreasonable" without some totally solid evidence. The jury also ruled unanimously, so it wasn't even close.
And there's almost nothing crystal clear in US fair use law. I agree it seems inconceivable to argue that 'no reasonable jury' could have done just about _anything_ regarding a fair use determination. There are so few clear lines in the established law.
Agreed, it sounds like by the letter of the law Google's use was not "fair use", if you grant the assumption that APIs are copyrightable in the first place.
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?
As Rayiner mentions, first they'll be a post-trial motion to vacate or overrule the jury verdict. Regardless of how those motions are decided the losing side will appeal to the Ninth Circuit. Only after a Ninth Circuit panel and perhaps en banc panel rules will one side or the other try for a cert petition to the Supreme Court.
Since Oracle hasn't dropped its patent claims from the complaint (despite the fact that they've already been defeated), doesn't Oracle get to bypass the 9th circuit and vault the case back to the CAFC?
They've got post-verdict motions at the trial court, if that fails they can speak to the Circuit Court (I think this will go to the Ninth Circuit now rather than the Federal Circuit, but that may be incorrect.) If they fail their, they can petition to have the Supreme Court take up the case (their refusal to take up a different question in an interlocutory -- prior to final judgement -- appeal previously shouldn't be considered a strong signal of whether they would take the same or a different question on appeal of a final judgement.)
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.)
Yes, it will go back to the federal circuit because they interpret anything that once, ever, had patent claims in the complaint as arising under the patent laws of the united states.
> it sounds like by the letter of the law Google's use was not "fair use"
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.
It's always going to be tougher to get a no reasonable jury finding on a factor test like that than an element test. Implicit in a multi-factor test is that the weighing of the importance of the various factors with respect to each other is left to the trier of fact.
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
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).
As to factor number 1, the purpose and character of the infringing use: In the 2 Live Crew / Pretty Woman case, the Supreme Court held that just because an infringing use is commercial, that doesn't automatically mean it's unfair (although it is indeed an important factor). [0]
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.
Good point about factor #4. But (in light of dragonwriter's comment below): wasn't Sun making a play at getting JVM into peoples' phones before Android stole their thunder? Or am I misremembering the timing?
Google argued that feature phones only had Java ME, which only included a small subset of Java's APIs, in contrast to Android, which includes significantly more Java (SE) APIs, as well as Android-specific APIs. My layperson understanding of that argument was that their use of Java was transformative because feature phones running Java ME were completely different from Android smartphones.
Indeed, Google spent a lot of time making this case to the jury. I could be mistaken, but I fear this is going to be the basis of a reversal on appeal, because what "transformative" means is ultimately a matter of law (indeed, the word itself comes from a Supreme Court decision rather than the text of a law), and to me Android looks completely different from previous things considered "transformative":
When you look at Android and then look at previous phones with Java and apps on them it's hard to argue it isn't transformative. The difference between SavaJe and Android is night and day.
JavaME had existed for years. There were a few very good apps (Google Maps was great, as was the Facebook app). Given that even the cheapest phones included it I can't imagine Sun was making any money off it.
It was a major source of licensing revenue for Sun, and one of the main reasons why historically they had been reluctant to open source Java. They were making around $200M revenue from it in 2007, which was the major source of income for their software business.
I thought this part of an Ars Technica article[0] on the trial was pretty telling:
"On cross-exam, a Google attorney brought up a graph from an internal presentation by Brenner showing "aggressive" and "conservative" estimates of what would happen to Java licensing revenue from 2007 to 2010. The graph's "aggressive" line showed a decline from around $140 million per year to about $105 million, and the "conservative" line showed a decline from the same starting point to around $50 million.
The graph was created before the launch of Android. Google's point was clear: Java was in decline, Android or no Android—and its executives and salespeople knew it."
It doesn't really matter what the numbers were though. They would have been higher had Google paid Sun for a Java license.
That's not relevant to fair use analysis. What's relevant to fair use analysis is if Java's market would have been bigger if Google neither bought a license nor produced Android. Obviously, any unlicensed use of a copyright protected work is going to reduce the caller of the protected work compared to the exact same behavior coupled with paying for a license, but that's not what the market effect factor is about.
You miss the case where Google had produced Android with a different platform (LLVM, Objective-C, or their own language). Since Java was in decline on mobile, it should have just entirely ripped Java from the mobile market.
I don't miss that case, I just don't believe it's the relevant one for fair use analysis. Though, if it were, that would weigh even more heavily in Google's favor.
> there was no driving need to interoperate with a proprietary one
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.
As I see it, only factor 1 clearly weights against Google at all; the other factor you think applied presumably is #4, but Android gaining market is irrelevant to that. The value of or market for Java shrinking compared to what it would otherwise be is what factor 4 is about, and while Oracle no doubt argued this point, it's certainly not indisputable.
The supreme court has repeatedly stated that being commercial or not commercial is not the entire point, and the more transformative the use, the less it matters whether it is commercial or not.
(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."
It wasn't even really a case (like say, Samba) where copying was necessary to interoperate with a closed, proprietary system.
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.
I think you've just started to delve into the problem domain of copyright vs copyleft and why there are legal considerations when you allow people to access your software using an API.
It is as ridiculous as it sounds. There is simply no case at all where API use cannot be sensibly argued as fair use. That's why you use an API in the first place........
>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.
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?
It's not, but Oracle had got themselves into a bind over the definition of 'interoperability'. They did indeed argue that Google hadn't copied enough, in so many words.
The trouble is that interoperability takes many forms and can't be shoved into a neat box like that.
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.
Copyright doesn't care about the software's behavior, just the text and structure of the code. Samba implemented CIFS without looking at or copying any Microsoft code.
This is such a key point and yet also quite confusing. Obviously copyright is not patents. Copyright is about preventing literal copying of someone's creation.
So.., if you implement an API in a different programming language, such that the text and structure is different, and yet the function remains the same... then have you not infringed any copyright?
It generally is. That's the whole point of clean-room reimplementation. You have one set of engineers that reverse engineers a product to develop a spec, and another set that implements the same functionality from the spec. That's kosher and has been upheld in several court cases.
The trouble for doing that with Java APIs is the spec basically is the class declarations. You don't just need to "do the same thing" you need a tangible source file that has at least in part the same text.
It kind of depends - in some jurisdictions, for example, interoperability requirements is a sufficient defense against copyright infringement, i.e., if you've built your product so that interoperating with it requires [re]using copyrighted parts, then it's okay to do so (up to the extent required for interoperability) even if you explicitly forbid it.
Sane laws such as that automatically prevent issues such as this Java API dispute and also things such as the attempts to block interoperability for coffee machine "pods" by requiring a copyrighted magic string and using DMCA to prevent others from using it.
How can you copy an API without looking at the original API? They might not have looked the implementation, but if the API itself is copyrighted, won't looking at it suffice to be infringement?
If there is one thing I've learnt for sure from all the random forum posts used in this trial, it is that "IANAL" is a good thing to say!
Nonetheless, I don't think the clean-roomness or otherwise of an implementation has an impact on this. Otherwise someone could copy music by listening to it and replaying it.
Like you said: the copyright is on the text, pattern and structure of the code. But it doesn't matter how it was replicated.
Please learn the difference between an API and a network protocol, else you end up looking foolish.
I don't believe that the distinction is that clear at all. Hence my comment:
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 think it is pretty easy to argue that the pattern of network calls needed to make calls (eg authentication) is an API.
Is a WSDL SOAP definition an API? I think most would say yes. A REST endpoint and the definition of how to use it? Why exactly is the definition of the HTTP protocol different to the definition of the REST endpoint?
A linearized network protocol is not an API. That distinction is very clear. Read the Microsoft protocol specs. They say nothing about API's used to send/receive the protocol - only how the protocol elements are encoded on the wire.
The API's that Samba uses to access that protocol are nothing like the Windows API calls (and are a completely independent implementation).
I'm just pointing out that it isn't at all clear to me that
the strong distinction that software people see between APIs and protocols is as clear under law.
It's not nearly as cut and dry as you're making it. Wiki of all places defines 'API' to be broad enough to include network wire protocols and endpoints. This trial was over "sequence, structure, and organization" rather than literal copying.
And of course Samba isn't built of WIN32 APIs, that's not what we're talking about.
If you automatically throw out cases, what's the point of having a law enabling and encouraging those cases in the first place? Or maybe a better question is: what would legitimate infringement look like, if what Google did is fair use?
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.
Thus far, APIs have only been found copyrightable by the court that is specifically about patents. It's highly doubtful that any court capable of setting binding precedent on the matter will agree, especially to the same industry-destroying extent.
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.
> Any lawsuits that don't end up in the Federal Circuit (which pure copyright suits never do) [...]
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?
"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)
Is Dalvik's use of the Java API transformative? My understanding of Cambell is that it's the Google Image Search scenario: where the thumbnail of the copyrighted work is fair use because it serves a totally different function than the original work.
So, i'm not going to express a precise legal view here (i am sadly too involved, i'm just going to stick to answering more general questions and pointing out what caselaw says), just pointing out your analysis of commerciality as the goal of the first factor is precisely what SCOTUS said not to do :)
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.
But function is not something to be assessed in isolation. The context is important too, as "the Java API" is not expression for expression's sake and has little intrinsic value. Google argued that they brought a system built originally for desktops and servers (the domain of JavaSE) to smartphones. Whether that's "transformative" is up to a jury.
Thanks. Quite apart from 'Java' having been open sourced, Schwartz also got up and told everyone this was all OK. Oracle really did face an uphill battle with that since it's nigh on impossible to take back.
And not to mention how difficult it would be to apply Oracle's logic to the innumerable applications that have modified a java version for their own use. I know this is argued in other posts on this thread, but just how in the world can Oracle justify FOSS and its implementation thereof a violation of copyright in these cases as well?
Given the fact that Java is open source and was open sourced in 2006, how does Oracle have a case? I'm asking legitimately not understanding how this even has a leg to stand on.
Google didn't base their implementation on OpenJDK, even if they had they didn't follow the terms in the GPL so (given it was copyrightable and not fair use) this wouldn't be a defence.
This is irrelevant. There was a ridiculous notion going around a while back that if Oracle lost then the GPL would become unenforceable.
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".)
Where the GPL is concerned the distinction between linking when code has been compiled and the API itself is very clear. Code is copyrightable, but headers and interfaces do not make something else a derivative work. Stallman agrees on this one:
This is not a much a question of the API as it is of the effect during execution. If the API would be considered to be what was protected then copyleft code can never be cloned in an interoperable manner under permissive licenses.
Instead the idea is that the code linking to GPL'ed code generates a new work during execution that's a derative of it AND the GPL'ed work, inheriting the copyleft license, requiring a compatible license on the linking code.
Why? A license is just a contract, no? Can't the clauses be arbitrary?
I mean, could you have a clause in a license that said "to distribute this work, you need to wear purple shoes on Mondays"? If so, why wouldn't you just be able to say "to distribute this work, you need to distribute works that link to it under the same license", as as arbitrary condition?
Sure, you can make arbitrary restrictions for how to distribute a work in a license.
The question at hand is whether you can impose these restrictions in the viral fashion of the GPL, e.g., on code I write that merely makes use of your APIs.
The way that the GPL attempts to enforce this is with copyright law, by not granting you the right to redistribute GPLed software unless you comply with it. By design, it doesn't restrict anything else about how you use the software.
> Why? A license is just a contract, no? Can't the clauses be arbitrary?
You don't need to abide by a copyright license if you aren't doing anything for which permission of the copyright holder is required in the law -- a copyright license is only needed to do things which would otherwise be prohibitd as within the exclusive purview of the copyright owner.
As the GPL isn't a sale contract that you must agree to as a precondition for receiving a copy of the software, when you receive a copy of GPL-covered software you can do anything you want with it as long as that isn't legally within the exclusive prerogative of the copyright owner (or contrary to the law for some other reason), and the GPL itself is irrelevant. The assertion by the FSF that particular uses of GPL-licensed software are constrained by the license is, therefore, necessarily an assertion that those uses are within the scope of the exclusive rights provided by copyright law.
The assertion by the FSF that particular uses of GPL-licensed software are constrained by the license
Ah, that's what I was missing. When did they assert that the use by itself (with no redistribution) is constrained by the GPL? That seems to go directly against their FAQ:
If I only make copies of a GPL-covered program and run them, without distributing or
conveying them to others, what does the license require of me?
Nothing. The GPL does not place any conditions on this activity.
That is a very surface based interpretation of FSF stance on the subject. What I have heard from members of FSF board members is that the dynamic linking aspect of GPL is a simplified rule that a non-lawyer can use to identify when a derivative work is created.
The primary argument is the simple question: is there two disconnected works or a single work with separate parts, parts that exist either for technical reason or for plain arbitrary reasons. Software that is dynamically linked can't be run without the dynamic library, is dependent on the library, and generally has no purpose if you try to use it without the library. If a judge/jury member will view the complete work as the software+library, then the method of linking the two together is irrelevant.
The "first" case of this was a patch to GCC. The patch would not have much purpose without GCC. A common sense approach would be that the working Objective-C compile had two parts, the patch provided by apple and the compile provided by the GNU project. RMS initial thought like most programmers that since patches seems like separate parts than it was separate and disconnected works. However, it was unclear so he asked a lawyer and thought that a judge would not view it like that. From there the dynamic linking guideline came to be and that is where current thinking has stayed. Nothing about API is needed for this, and GPL would still work tomorrow if someone created a third method to link software together as a single work.
A interesting future case would be a program that is dynamically linked to a library that exist under several different licenses. Such software would have a strong argument to be disconnected from their library, but they would still be incomplete and a judge would likely put a lot of weight on the developers intention rather than any technical aspects.
Open source is just a blanket term for a variety of different licenses with different limitations. Earlier court decisions didn't see the GPL license invalidating API copyrights. I guess a poor analogy is that you can use linux code all day long but the Linux trademark is not yours. Nor does Linus personally give you immunity from patents that code might infringe on.
> They're protectable, but can't be protected in any realistic scenario
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?
> 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.
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.
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.
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?
Wow. I suddenly have a lot more faith in the courts and juries to land sane verdicts in technology trials. Still sad that it takes a billion dollar company to be able to stand up to this (as anybody smaller would be crushed by the trial expense) but let's celebrate it none the less.
Any lawyers around? I wonder if Google can claim legal expenses back from Oracle.
I don't think it's fair to call this law suit frivolous.
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).
The appellate court ruled that the law is that APIs are copyrightable, and sent it back. The jury decision here was that Google made fair use of a copyrighted API, not that APIs aren't copyrightable.
It may be frustrating when these sorts of cases wind their way slowly and expensively through the legal system only to achieve (sometimes) obviously correct results. However, that's actually a much better thing than having a person or persons handing down a decision based on what seems obviously right.
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!
How so? My understanding was that Oracle was suing Google over the use of an API. This seems quite unreasonable to me but that could be due to my tech background and lack of legal knowledge.
While I don't really agree with the OP, I totally understand the sentiment.
It's really an acute issue between legal copyright and the new reality of modern computing.
It used to be that copyright sustained our industries. Pottery, Pattern designs on fabric, and later music and films.
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.
Are you referring to Oracle's behavior? I would agree that while it's a glorious day, nonetheless the verdict is a chilling reminder of the abuse of IP.
This is possibly my best-case scenario. APIs are copywriteable (so says the Supreme Court), and this seems reasonable, since some APIs really are very good and treating them like an artistic work has benefits. But implementing them is fair use, preserving the utility of APIs for compatibility. Great news!
If other countries follow USSC's lead in declaring APIs as copyrightable, many of which have far looser fair use rights than the US, then this could create a lot of headaches, especially since this seems like a very loose interpretation of the US's already loose fair-use laws.
> APIs are copywriteable (so says the Supreme Court)
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)?
It is not the same as agreeing with the lower court - AIUI if they heard it and ruled, the scope of the decision for purposes of precedent would be* "every court" (though not necessarily every case), while declining to hear it does not change the scope or outcome of the prior ruling.
* - as with everything in the legal system, there are exceptions and fuzzy lines, and IANAL.
> APIs are copywriteable (so says the Supreme Court)
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.
They also may not have taken the case because it was an interlocutory appeal, and the Supreme Court has a strong bias toward taking appeals of final judgements and avoiding interlocutory appeals unless, in addition to a good reason to take the case, there's also a good reason not to let it go to final judgement before taking it.
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.
The challenge is that, taking away what most of us wanted the ultimate result to be, the in a vacuum argument that APIs aren't a creative work seems wrong.
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.
Whew, Oracle's lawyers and blind greed doesn't get to destroy interoperability for the entire Tech Industry.
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.
> 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.
In 2012, court rules Java APIs are not copyrightable. In 2014, that decision was appealed and overruled, declaring Java APIs copyrightable. The case was sent back to determine if Google's reimplementing APIs was "fair use" of copyrighted material.
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)
I didn't say he's not scummy, just that he's not insane. It's my belief that he's get paid well to say scummy things, which is rational if not tasteful.
Your statement seemed hyperbolic until I followed the link and skimmed a handful of posts. He does indeed come across as someone consumed by hatred to the level of insanity. Why wouldn't anyone link to him? Its like linking to the Westboro baptist people in a discussion about Christian theology.
Because for those who didn't know better Müller appeared well-informed and it was convenient to cite him if he was on your side or you were writing a mainstream article and too lazy to find another source, especially after Groklaw shut down.
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.
Well, IIRC he is (or at least was) an intellectual property lawyer. That may have contributed to him seeming to take personally any limitations on what can be covered by IP.
Or maybe not. Most IP lawyers are less unhinged than Muller...
Funny how he mentions a rigged trial, which is exactly what the Supreme Court ruling was. However, they declined to hear again which could effectively mean "You got your copyrighted APIs, now fuck off".
Mueller is so discredited he doesn't have any weight at all.
It was pretty obvious Oracle wanted it to go there because they hadn't the faintest idea how things actually worked. Oracle could then apply legal pressure and handwaving.
The district court originally ruled that APIs weren't copyrightable. The appeals court overturned that decision, ruling that APIs were copyrightable, but that it could be fair use. The case went back to the district court for that point, and the jury now decided that it was in fact fair use.
Yep, and that fair use argument is why the SCOTUS declined to hear it at the time. Be interesting to see if it goes back that way or if Oracle decides it's not going to get anything from doing so.
Apis are still copyrightable according to the Federal Circuit Court of Appeals. That's not great, and I hope Congress does something about it for the other languages (eg. C#/.NET) that haven't yet been whitelisted as fair to use by the judicial system.
I remember that afternoon deserts served in Google restaurants when I worked there were very tasty - I hope everyone is celebrating with a good snack :-)
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.
408 comments
[ 4.1 ms ] story [ 316 ms ] threadSarah'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.
* 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.
This is a massive ruling, heres to hoping it stands
No way.
Oracle appealed, and at the appeals court won a ruling that APIs could be copyrighted. The case got sent back down for a trial that was only about the fair-use defense, not a complete retrial.
At least I think it is pretty cool (and very gracious of Oracle)
Net cost? Most certainly not. That's not how Oracle works at all.
Saying that they aren't entirely opposed to participating in mutually beneficial arrangements is still setting the bar pretty damn low and is not a distinction worthy of any praise.
Anyways I wonder how long this is going to keep going on for as I'm assuming Oracle will appeal.
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?
(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.
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.
Good luck with that here.
There's a huge backlog of fair-use cases for them to base their decision on. I don't think it would be particularly difficult or nasty in this case, given that the ability to copyright APIs was a presumed fact during the trial. Also, the judges do not all need to agree; majority vote wins. So the moment they feel that further debate is unproductive, it's time to vote and move on.
It is going to have be be very clear and something that can be ruled on in a short space of time. There is no way you can argue at all that anything clear has been missed here, or argue in clear terms how things have been weighted.
Stuff like arguing that commercial reasons haven't been weighted properly is entirely subjective, because it depends on arguing how transformative use is - and that is what has happened here. The jury have already decided on that one. The 'backlog' of fair use cases will simply throw up the same subjective issues.
An application like that to a court is not going to impress any judge one iota. You can't just wander back into court and argue "The jury has been unreasonable" without some totally solid evidence. The jury also ruled unanimously, so it wasn't even close.
But the federal circuit could surprise us yet.
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?
Your parent already answered that question (although I don't blame you for not noticing):
https://en.wikipedia.org/wiki/Judgment_notwithstanding_verdi...
"Because this action included patent claims, we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1)"
...
"The jury found no patent infringement, and the patent claims are not at issue in this appeal. "
See Oracle America v. Google, Inc. (http://www.cafc.uscourts.gov/content/oracle-america-inc-v-go...)
The federal circuit will, in turn, pretend to apply ninth circuit law.
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.
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.
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).
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...
http://www.nolo.com/legal-encyclopedia/fair-use-what-transfo...
"On cross-exam, a Google attorney brought up a graph from an internal presentation by Brenner showing "aggressive" and "conservative" estimates of what would happen to Java licensing revenue from 2007 to 2010. The graph's "aggressive" line showed a decline from around $140 million per year to about $105 million, and the "conservative" line showed a decline from the same starting point to around $50 million.
The graph was created before the launch of Android. Google's point was clear: Java was in decline, Android or no Android—and its executives and salespeople knew it."
It doesn't really matter what the numbers were though. They would have been higher had Google paid Sun for a Java license.
[0] http://arstechnica.com/tech-policy/2016/05/suns-head-of-java...
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.
(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."
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.
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.
An API being used by a client and an API being copied by a competitor to be used by those same clients are two completely different situations.
Using API and the word 'copied' in the same sentence simply doesn't mean anything.
And that's about it.
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.
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.
So.., if you implement an API in a different programming language, such that the text and structure is different, and yet the function remains the same... then have you not infringed any copyright?
To me an API, is just a formalization of declaring your intention to implement a particular functionality.
The trouble for doing that with Java APIs is the spec basically is the class declarations. You don't just need to "do the same thing" you need a tangible source file that has at least in part the same text.
Sane laws such as that automatically prevent issues such as this Java API dispute and also things such as the attempts to block interoperability for coffee machine "pods" by requiring a copyrighted magic string and using DMCA to prevent others from using it.
Nonetheless, I don't think the clean-roomness or otherwise of an implementation has an impact on this. Otherwise someone could copy music by listening to it and replaying it.
Like you said: the copyright is on the text, pattern and structure of the code. But it doesn't matter how it was replicated.
Please learn the difference between an API and a network protocol, else you end up looking foolish.
https://www.samba.org/ftp/tridge/misc/french_cafe.txt
I don't believe that the distinction is that clear at all. Hence my comment:
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 think it is pretty easy to argue that the pattern of network calls needed to make calls (eg authentication) is an API.
Is a WSDL SOAP definition an API? I think most would say yes. A REST endpoint and the definition of how to use it? Why exactly is the definition of the HTTP protocol different to the definition of the REST endpoint?
IANAL, etc. Which seems important these days.
The API's that Samba uses to access that protocol are nothing like the Windows API calls (and are a completely independent implementation).
I'm just pointing out that it isn't at all clear to me that the strong distinction that software people see between APIs and protocols is as clear under law.
And of course Samba isn't built of WIN32 APIs, that's not what we're talking about.
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.
Starting from "Are APIs copyrightable" all over again? Great......... More legal fees, court time and nonsense.
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?
"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.
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".)
http://lkml.iu.edu/hypermail/linux/kernel/0301.1/0362.html
The code depends on copyrighted libraries, but, this has nothing to do with whether the method of calling a GPLed code library is itself copyrighted.
Instead the idea is that the code linking to GPL'ed code generates a new work during execution that's a derative of it AND the GPL'ed work, inheriting the copyleft license, requiring a compatible license on the linking code.
I mean, could you have a clause in a license that said "to distribute this work, you need to wear purple shoes on Mondays"? If so, why wouldn't you just be able to say "to distribute this work, you need to distribute works that link to it under the same license", as as arbitrary condition?
The question at hand is whether you can impose these restrictions in the viral fashion of the GPL, e.g., on code I write that merely makes use of your APIs.
The way that the GPL attempts to enforce this is with copyright law, by not granting you the right to redistribute GPLed software unless you comply with it. By design, it doesn't restrict anything else about how you use the software.
You don't need to abide by a copyright license if you aren't doing anything for which permission of the copyright holder is required in the law -- a copyright license is only needed to do things which would otherwise be prohibitd as within the exclusive purview of the copyright owner.
As the GPL isn't a sale contract that you must agree to as a precondition for receiving a copy of the software, when you receive a copy of GPL-covered software you can do anything you want with it as long as that isn't legally within the exclusive prerogative of the copyright owner (or contrary to the law for some other reason), and the GPL itself is irrelevant. The assertion by the FSF that particular uses of GPL-licensed software are constrained by the license is, therefore, necessarily an assertion that those uses are within the scope of the exclusive rights provided by copyright law.
Ah, that's what I was missing. When did they assert that the use by itself (with no redistribution) is constrained by the GPL? That seems to go directly against their FAQ:
http://www.gnu.org/licenses/gpl-faq.en.html#NoDistributionRe...The primary argument is the simple question: is there two disconnected works or a single work with separate parts, parts that exist either for technical reason or for plain arbitrary reasons. Software that is dynamically linked can't be run without the dynamic library, is dependent on the library, and generally has no purpose if you try to use it without the library. If a judge/jury member will view the complete work as the software+library, then the method of linking the two together is irrelevant.
The "first" case of this was a patch to GCC. The patch would not have much purpose without GCC. A common sense approach would be that the working Objective-C compile had two parts, the patch provided by apple and the compile provided by the GNU project. RMS initial thought like most programmers that since patches seems like separate parts than it was separate and disconnected works. However, it was unclear so he asked a lawyer and thought that a judge would not view it like that. From there the dynamic linking guideline came to be and that is where current thinking has stayed. Nothing about API is needed for this, and GPL would still work tomorrow if someone created a third method to link software together as a single work.
A interesting future case would be a program that is dynamically linked to a library that exist under several different licenses. Such software would have a strong argument to be disconnected from their library, but they would still be incomplete and a judge would likely put a lot of weight on the developers intention rather than any technical aspects.
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?
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.
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?
Any lawyers around? I wonder if Google can claim legal expenses back from Oracle.
[0] https://www.law.cornell.edu/uscode/text/17/505
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).
[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...
Lesson 2: See Lesson 1
Schwartz: "Back in 2009, Android WAS lame."
Google atty: "Move to strike, your honor!"
https://twitter.com/xor/status/730456825649188865
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!
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.
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.
That decision was not made by the Supreme Court. The Supreme Court has not heard this case...yet.
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.
https://www.law.cornell.edu/wex/certiorari
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.
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.
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.
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?
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)
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...
> 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.
Mueller is so discredited he doesn't have any weight at all.
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.