,,Google’s Supreme Court faceoff with Oracle was a disaster for Google''
I don't see how losing even a few billion dollars could be a disaster for Google at this point. They control most of the smart phones in the world, and that's worth much more than that amount of money (regardless of whether using Java was the right choice or not).
This isn't just a disaster for Google. This is a disaster for competition in the tech industry and a disaster for consumers. If APIs can be copyrighted, what's next? File formats? On-the-wire protocols?
The unimpeachable approach for the software industry is to setup consortiums to define open standards for APIs, file formats and wire protocols, instead of relying on replicating the most popular proprietary ones. In fact there already exist such consortiums, for example https://www.w3.org, tasked with standardizing WWW, or https://www.cncf.io for cloud computing standards.
Apple wouldn't have to just use hard-to-find screwdrivers, they could just make a new screw shape, copyright the design, and then it'll be even harder to open their gadgets.
Copyrights are not patents, and your link asserts that the Robertson screw design is patented, not copyrighted. The Google vs. Oracle case is about copyrights.
It was 2017 that the last MP3 patents expired, which is pretty recent, IMO. It was patented on the encode side about 10 years longer than on the decode side.
Yeah, I remember having to use nonfree repos to enable MP3 playback on my Linux machine back in the day. I could not remember when it stopped being the case, but 2017 seems about right.
Right. Google's lawyer brought up the distinction at least a couple times, saying that the novelty of the API might be patentable but not copyrightable.
Procedural trivia time: the Google vs. Oracle case is about copyrights, but if it weren't for patents it would not be at the Supreme Court.
Originally, Oracle sued for both patent infringement and copyright infringement. When they appealed, the appeal went to the Federal Circuit because of the patent issues, and so the Federal Circuit ended up handling the appeal of both the patent issues and the copyright issues.
If the case been just a copyright case, the appeal would have went to the 9th Circuit.
If it had taken that route, the 9th Circuit would have almost certainly upheld Judge Alsop, and the Supreme Court almost certainly would not have taken an appeal from that.
The Federal Circuit is suppose to apply the precedent of the circuit that the case came from when deciding issues like the copyright issues that are only before the Federal Circuit because they tagged along on a patent case. In this case, that means they were suppose to follow the 9th Circuit precedent.
I think we need to change the way the Federal Circuit works in cases like this. If they decide issues that got there via tag along, I think the appeals path for those issues should be to the circuit whose precedent they are suppose to be following. In this case, that would mean that the copyright issues should go to the 9th Circuit after the Federal Circuit.
The current way can lead to a situation where in a given circuit you can effectively have different laws for X depending on whether or not someone sues you just over X, or over X and patents.
If sued over just X, the law on X is what the circuit court of appeals for your circuit says. If sued over X and patents, the law on X is whatever the Federal Circuit thinks it is. Those can diverge, and then you have the situation that plaintiffs can choose what they want--sue just for X to get their circuit's law, or toss in a throwaway patent claim to get the Federal Circuit's law.
> Google has had 6 years to show this disaster and yet they could not list a single example of it happening.
How? For that to be true, there would have to be binding precedent applicable outside this case. But Federal Circuit decisions on legal questions—for instance copyright—outside their special subjects (patent claims is what got this case before them) do not create binding precedent for any lower court.
Had this not gone through the Federal Circuit, and had it been the Ninth Circuit (which otherwise would have been the court to hear the appeal) that had ruled, sure, you could then say “Hey, look, there's not some apocalypse due to this ruling happening in the Ninth Circuit, so it must not be a real problem”. But the Federal Circuit decision, notionally applying Ninth Circuit law, has no binding effect on any other court in any other case, so of course it hasn't caused an apocalypse. Precisely because no other court, trial or appellate, has ever held APIs to be copyrightable.
> This is a widespread practice in the software industry. Oracle, for example, re-implemented Amazon's S3 API so that customers who built software for Amazon's cloud platform could easily switch to Oracle's rival cloud platform.
Talk about cutting off your nose to spite your face.
2. The amount of money Oracle would get back (and going forwards) in licensing fees for Android would probably dwarf most financial prospects from any API reimplementations that might be at risk.
Because APIs have never before been considered copyrightable, unless Google wins on fair use in this case, we will have exactly zero on-point case law as to when an API reimplementation is fair use.
Speculating on what would be considered fair use in API re-implementations in that case would be extremely speculative.
> The amount of money Oracle would get back (and going forwards) in licensing fees for Android would probably dwarf most financial prospects from any API reimplementations that might be at risk.
Maybe more than existing ones, but is it worth more than the entire strategy of using API reimplementation to stay in the game against Amazon, who is far and away ahead in cloud? Is losing that worth a parasitic claim on Android until Google replaces it with something not subject to that claim?
Google already switched Android over to OpenJDK in 2016, which they have an absolutely ironclad right to use without paying for. If Oracle does end up winning the payout will be for the period of 2008-2016 when Google was using their own home brewed Java implementation.
Unless this ruling becomes applicable to the Java bytecode format, in which case they can go after Dalvik and ART (the latter of which is still in use).
Because Oracle implemented the S3 API in order to be compatible with Amazon, while Google didn't implement the Java API in order for Android apps to be compatible with server-side Java code.
Both reimplement for compatibility at some level in the toolchain, why fair use analysis would privilege one level of interoperability over another is purely speculative; arguably, the kind of user-interoperability Oracle does is more of an assault on the market for what is reimplemented (that's the whole purpose of Oracle doing it) than what Google is doing, and that's a factor that weighs against fair use.
It is important to realize that since APIs have never been viewed as copyrightable previously, we also, if Google loses on both copyrightability and fair use, will have zero case law that is directly on point for any API reimplementation being fair use. Speculating on the law that will develop in that area is fun, but almost by definition not strongly grounded.
Google wasn't interested in interoperability. A big part of why they allegedly walked away from Java licensing was Oracle wanted Android to actually run Java apps, and Google wanted to basically fork off, but just benefit from the developer community around the Java language.
There were a number of Java standard library incompatibilities that various libraries have had to adapt to, until they switched the library implementation to OpenJDK.
Interoperability is not limited to executable-interop: it includes developer knowledge, libraries and tooling - which are exactly the reasons Google chose to use Java (the language). Dalvik checked all those boxes, without being bytecode-compatible with the JVM
This might not just be a disaster for Google - it could be a disaster for software everywhere. If APIs become copyrightable, what happens to any open source software the implements a proprietary API?
Supreme court judges just do not have the conceptual framework to properly adjudicate this. I don't think it's going to be possible to teach them the difference between interface and implementation within the parameters of these arguments. And beyond that the conservative majority is predisposed to treat everything as property. This is not going to end well.
APIs being copyrightable doesn't actually harm implementations of APIs that fall under fair use. (Fair use exemptions specifically apply to copyrighted things.) Interoperability is fair use. And things like something being non-commercial, such as a lot of open source software, is a major factor in determining whether or not usage is fair. Things like WINE or NES emulators or the like would fall very comfortably into fair use.
It's nowhere near as world-ending as Google's public policy team would like you to believe. But given that Android is not fair use (it's not interoperable, they just wanted to glom on the popularity of the platform), it sucks for Google.
Sorry, but this is not an accurate summary of the state of the law. Whether Android's implementation of Java was fair use is one of the questions the Supreme Court is considering. Google was absolutely trying to achieve interoperability with Java, so if Google loses it would make it more difficult for others to claim fair use. Fair use is complicated so others might succeed where Google failed, but a loss for Google would be bad news for interoperability generally.
> Google was absolutely trying to achieve interoperability with Java
I don't think this is such an easy argument. Google's interest was ultimately the bottom line.
Without discussing the copyrightability, from a strictly monetary perspective, APIs are product that, in this case, has a very high monetary value (market share == $$$), and Google chose it for this very specific reason (developers == market share == $$$). Again, I don't imply that copyrightability is good or bad, but the entire matter has been about money, and strictly from that perspective, ownership has a sense.
I don't believe that Google was really trying to achieve interoperability. If it was then they would have passed the Java Technology Compatibility Kit (TCK) tests. Other companies did that and are legally in the clear for their Java implementations. Why didn't Google?
I'm not privy to Google's management thinking but I suspect they made that decision to save time and hit a market window. Android originally used the open source Apache Harmony Java implementation which didn't comply with the Sun (Oracle) Java license for the TCK. If Google had dropped Harmony they would have had to either write their own Java implementation from scratch or license one from another vendor like IBM. They had plenty of resources to pursue those other options but either one would have take more time and allowed Apple to build a lead in the smartphone market. So Google stuck with Harmony and now they're facing the legal consequences.
That seems incompatible with the text of Section 107, which includes the amount copied as a factor for determining fair use. The more compatible your implementation is, the more you have to copy, so the logical end of this reasoning is that Android's implementation of Java would be fair use if it had copied all of the API, not just a subset.
Which it did under open license starting from OpenJDK 9. Oracle argues probably this has given Google an advantage, which is, in technical terms, bollocks, as Oracle was not making an operating system.
You could arguably implement Java without a license from Oracle provided you were using the GPL, as OpenJDK is released under the JDK, and presumably includes the entire Java API. The problem for Google, of course, is OEMs would've balked at being forced to open source all of their proprietary modifications to Android.
Wikipedia says the OpenJDK was released in 2007, so Google could've legally used the Java API under GPL terms, but chose not to, and also chose not to pay for Java licensing.
>would've balked at being forced to open source all of their proprietary modifications to Android
OpenJDK have linking exception, so it doesn't apply. In fact Android uses OpenJDK now. It also makes Oracle case looks phoney, suing Google for Java usage while having released freely available OpenJDK.
But that's not the point, I think implementing API/ABI/protocols/whatever should be allowed whether or not vendor wants it. There are many reimplementations of competitors APIs, and ruling in favor of Oracle would basically break that. Under that interpretation Wine would be in danger too, as significant part of Wine development is commercial (by CodeWeavers making their CrossOver product).
> > And things like something being non-commercial, such as a lot of open source software, is a major factor in determining whether or not usage is fair.
> Why it should?
Because its explicitly a factor, in the statute, for fair use analysis.
> It would mean that implementing commercial Java runtime without Oracle license is not possible?
Maybe, maybe not. If Google loses on both copyrightability and fair use, the entire case law on API fair use will be one negative instance. We might also get a more specific test articulated in the ruling, but we have no idea what that test would be now, so its hard to speculate (well, easy to speculate, but hard to judge which speculation is more accurate) what the impact would be on any other use.
What about improving the API? E.g. some languages may be mostly but not 100% compatible with existing languages and provide more or less the same API but not be 100% the same - both the in the runtime library (API) and the language itself.
For example Free Pascal is mostly compatible with Delphi but not the same and its runtime library is mostly the same as Delphi but also not the same.
>> If APIs become copyrightable, what happens to any open source software the implements a proprietary API?
That has implications for language implementations too. Who would own the standard library for any given language? What about programs that call API functions? Are they derivative works too?
An API is necessarily functional first and foremost. It would cause chaos and some weird dystopian future if Oracle wins.
It is usually in the interest of the designer of the API to have as many users as possible.
BUT in this case we are talking not of using part of an API (say the Math library to implement a physics engine is assembly and link it) but of reimplementing a whole language which has, as of today an when the events discussed took place (even if we agree to hate it) an owner.
>It is usually in the interest of the designer of the API to have as many users as possible.
When they first design and publish it yes, but Oracle didn't design and publish the Java APIs, they bought them after they had becomes very popular and widely used.
At that point they don't need to care about making it popular, it already is, all they care about is milking that existing ecosystem for every penny they can get. If future API publishers care about this they can just license out their API spec, but right now Oracle just wants to be able to squeeze whoever they can until the pips squeak.
The standard library is owned by the people creating it, and of course your work using the standard library is a derived work of that standard library.
For example, glibc is owned by GNU, and it is licensed under the LGPL, so you are allowed to dynamically link it without having to release your own code under the GPL (or compatible). This is all happening today.
The only projects that will be more seriously affected by this decision are WINE and similar - projects that are copying the API but not the implementation. Even here, it is very likely that WINE could win on Fair Use, since their copying is obviously done for interoperability.
Also, APIs are obviously creative human works, and their purpose is first and foremost usability for the end-user.
That's an interesting question. Perhaps K&R? Or maybe their employer? Or perhaps by now the copyright may be with ANSI/ISO?
But this does raise an interesting point, about who would own copyright on something that was not believed to be copyrightable for much of its history.
> Who would own the standard library for any given language?
Require copyright assignment or a guarantee for royalty free use by any implementation. Standards committees already have to deal with hidden patent dependencies someone might sneak in so this would just be another bullet point on paperwork that should already exist.
Another interesting take: Machine architectures expose an API, and it may become impossible for anyone but a chip manufacturer to distribute a compiler.
Machine architectures are very much copyrightable right? That's why Intel license x86 to AMD.
Thing is, for chip manufactures it makes no sense not to allow others to call this x86 API. Things could get dicier for other who try and virtualize a machine instruction set.
It might not matter to the law which side of an interface you're on, if your work is still clearly derivative (in the legal sense) of that interface design.
Little note: what you're really asking is whether the authors of GPL software would have grounds to sue Oracle for copyright infringement.
As another HN commenter put it to me when I made the same mistake: "The GPL is not viral." If one party breaks the terms of the license, then normal copyright goes into effect.
> So if Oracle implements a proprietary API in GPL software does that mean that all Oracle software is copyleft?
No, not at all.
OTOH, it does mean if they implement a GPL interface in proprietary software it does mean that they are in violation of copyright (barring a fair use defense) and the GPL, potentially triggering the loss-of-license provisions of the GPL and other legal consequences.
>>"that the conservative majority is predisposed to treat everything as property..."
This is misleading at best.
For example: RBG, despite her left-leaning reputation, was easily one of, if not the, most pro-copyright and pro-IP justices on the bench. (Relatedly, she also was pretty pro big business, which rarely fits the portrayed narrative.)
Not all areas of law, especially at the Supreme Court level, easily translate into right/left politics.
This is a strawman. The argument wasn't that no left-leaning people would treat things as property, but that most conservatives would. As such, you're not attacking the actual argument with your point.
It's not a strawman at all, as the original statement is clearly setting up the flip side of that argument - that left-leaning justices are less likely to do so.
Well, even then, showing one left-leaning justice with pro-property stances doesn't actually disprove that argument. Less likely things still happen some of the time.
This is really an important distinction. Social issues like gay marriage and things like this are completely orthogonal. The Democratic Party as a whole is very much neoliberal or liberal as opposed to left. Liberal judges are much the same.
The DNC would be center right in Saudi Arabia? By what metric?
What is with the ridiculous hyperbole that's so common when talking about America on the internet, especially by non-Americans? Talk about "American exceptionalism" - just in a different way.
Well, what's going on in America is being pushed down the throats of everyone in the world. You can hardly read an article without someone mentioning Trump and US politics in general. We may as well join in too!
Indeed it's quite ridiculous. What they mean to say is that the DNC would be center-right in Europe, which is an incredibly Euro-centric way to look at the world. In reality, if you consider the actual bulk of the planet, which would include mainly China and India, the DNC and RNC dichotomy is rather unclassifiable.
It depends on how you define things. For example, do you measure by where Democrats end up in practice, or where they want to go? For example, the United States is to the right of Germany in terms of universal healthcare. But Medicare 4 All, where many Democrats appear to want to go in the long term--though they disagree about how quickly they want to get there--would be quite to the left compared to the multi-payor mandatory insurance system currently in place in Germany.
It also varies quite a bit by subject-area. In Germany, the constitutional court held (around the same time as Roe) that legalized abortion was unconstitutional, violating the fetus's right to life. Today, it is technically still illegal, but decriminalized up to 12 weeks. (Shorter than in almost every state in the U.S.) The abortion rate in Germany is much lower. The Democratic party's views on abortion would not be considered center-right in Germany. On gay rights, Germany got legalized same-sex marriage a couple of years after the U.S. And things like surrogacy, which gay male couples often rely on to have kids, is illegal.
Or, consider that Merkel, a member of the center-right Christian Democratic Union (CDU) has called for a ban on burqa. To my knowledge, even Trump has not said anything like that. Similarly, on immigration, while Merkel allowed Muslim refugees, her successor declared that a "mistake" which the country had "learned from." Democratic favorability to refugees would not be a center-right position in Germany.
In the area of religion, the U.S. is extremely left wing compared to every country but France. In the U.S., teaching religion (as such) is banned in public schools. In the U.K., Germany, Italy, and Spain (four of the five largest EU countries) it's actually required, either by statute or by the constitution. Children have a right to receive a religious education at the public expense in these countries.
In the area of taxes, the Democratic Party is center-right in some ways but quite left win in others. Merkel has championed Germany following along with Trump's corporate tax cuts. The Democrats' proposal to repeal that would not be a center-right position in Germany. The Democrats' proposal to tax capital gains as ordinary income is quite left wing. Most Western European countries, including Germany, have preferential treatment for capital gains taxes. In general, the U.S. has the most progressive tax code in the OECD: https://opportunitywa.org/u-s-federal-income-tax-structure-m...
But Democrats' tepid support for labor unions, for example, would be considered center-right or even right-wing in Germany.
On the whole, on social, religious, and immigration issues, the current Democratic Party is solidly to the left compared to western Europe. On labor issues, it's to the right. On corporate and investment taxation, it's solidly on the left. On healthcare, its to the right, but mainly for reasons that have to do with minimizing disruption to peoples' current private insurance. Where they want to end up, single payer public insurance, is solidly on the left.
Our next Vice President will very likely be a Democrat who, in 2019, supported single-payer public healthcare, treating capital gains as ordinary income, a 35% corporate income tax rate, a financial transactions tax, publicly funded abortion with no compromises such as waiting periods, Green New Deal, free healthcare for people who immigrate illegally, etc. If she actually believed those things, she would be a solidly mainstream left politician in most European countries.
Thanks for typing this all out. The idea that American liberals would be “right wing” in Europe is just plain wrong for reasons you’ve mentioned. There’s a lot of nuance lost and you can’t really compare the two. For instance Europe is full of Christian socialist parties: something unthinkable here in the states.
> But Medicare 4 All, where many Democrats appear to want to go in the long term--though they disagree about how quickly they want to get there
Democrats generally agree that there should be universal access to health care, and a mostly agree that that should involve a public plan (not just a private subsidy) available to at least some section of the population beyond the current Medicaid population.
There is not general agreement within the Democratic Party on universal single-payer as even a long-term goal. The currently dominant neoliberal faction of the Democratic Party supports a public option as a long-term component of healthcare policy to acheive universal access, but does not generally support single-payer as a goal, in either the near or long term.
> In general, the U.S. has the most progressive tax code in the OECD
As your own source notes, net of transfers and taxes, the US has one of the least progressive systems in the OECD.
> In the area of taxes, the Democratic Party is center-right in some ways but quite left win in others. Merkel has championed Germany following along with Trump's corporate tax cuts.
You seem to be really obsessed with the CDU as your measure of center-right parties, but AFAICT the CDU is to the right of most parties labelled center-right, not just in Europe, but even in Germany specifically (which has a fairly wide range of center-right parties.)
But, yes, its really only the dominant faction of the Democratic Party that is center-right, the "progressive" faction is center to center-left by European terms, and the whole (today, with the gains the progressive wing has made over the recent years considered) is probably more center than center-right; the "Democrats are a center-right" party was most true at the height of the Clintonian neoliberalism of the Democratic Party which as faded over the last decade or so and particularly since Bernie Sanders 2016 campaign reenergized the progressive wing, though it has still not become dominant.
> There is not general agreement within the Democratic Party on universal single-payer as even a long-term goal. The currently dominant neoliberal faction of the Democratic Party supports a public option as a long-term component of healthcare policy to acheive universal access, but does not generally support single-payer as a goal, in either the near or long term.
A big majority of Democrats support Medicare 4 All: https://www.kff.org/wp-content/uploads/2020/01/9394-Figure-3.... They support a public option somewhat more, but to me it seems more like they do so to soften the transition to a single-payer system. A “public option” wouldn’t be like the multi-payer systems of Germany, Switzerland, or the Netherlands. Since it would kill private competitors in the long run, it’s just a slower road to single payer.
Regarding taxes: netting transfers mixes up the tax system from the welfare system. As the article points out, our taxation is progressive but our spending is regressive. It’s a system designed to redistribute money from the rich to the middle class, not the middle class to the poor.
As to social or religious issues, Italy or Spain would be more conservative in some respects. (Islam isn’t a recognized religion in Italy.)
The recent rise of progressives has moved Democrats sharply left in part because Europe has been moving to the right economically for decades. Low corporate and investment taxes and deregulation is gospel across the European center, but it’s disappeared among progressive Democrats. That wasn’t remarkable in 1975 but it’s remarkable today. Macron, for example, is campaigning on deregulation and a government takeover of Islam, and his major competition is to his right. Center left parties in France aren’t questioning the country’s fairly low corporate and investment taxes. Neither are those in Spain. Democrats (in particular Warren’s utterly cockamamie proposal) really stand out in that area as a throwback.
Green New Deal is a great example of this. It’s an FDR era jobs program. It stands in stark contrast to Europe, which is doing carbon pricing. Progressives seem to have developed an allergy to markets, and while the center isn’t there yet it’s not pushing back either.
I mean that’s before you get started on Sweden’s center-left party continuing to cut corporate taxes and partially privatizing social security.
Oh, I forgot about school choice. Democrats are far to the left compared to Europe in that.
> A big majority of Democrats support Medicare 4 All
Sure, a big majority of Democrats in the electorate do.
The description of the center or center-right nature of the Democratic Party is not a description of the party-in-the-electorate but the institutional party. In fact, it's frequently expressly contrasted with the views of the party-in-the-electorate to argue that the institutional party is a poor agent of its membership.
Turning to polls of the party-in-the-electorate to argue against the characterization is, at best, not understanding what the discussion is about and, at worst, the fallacy of equivocation.
> netting transfers mixes up the tax system from the welfare system.
In every state, taxes and the welfare system are already mixed up, and the division of function between them isn’t consistent fromm state to state. Viewing them separately miscasts differences in preferred vehicle with differences in preferred function. Or vice versa.
> The Democratic Party would be considered center-right in any other country of the world, but the USA.
Any other Western democracy (including some Western-model democracies outside of the West proper), sure. But then the left-right axis is not really readily transferrable to outside of that domain, anyway.
Both parties are liberal. Republicans deviate from liberalism when pandering to their religious base, and Democrats deviate from liberalism when adding to the social safety net and labor rights, pandering to their left base. Neither party takes their deviations from liberalism seriously, and both parties have an interest in not resolving those (wedge) issues to keep voters from drifting to the other party.
Sure- but then you have to be careful defining labels.
Trying to peg a generic one dimensional (left-right) or even two dimensional (social/fiscal) political position on justices is difficult, even with loosely defined labels/ categories.
It's much easier to look at justices relative position/ rank on a per-topic basis.
Alternatively, and less useful to the general public, but very useful to SCOTUS junkies, is looking at cross tabs of how often a particular justice votes with others. Especially when they break from the publically perceived left/right voting block, which is more often than most think.
Scotusblog is full of this type of analysis for those interested:
And this is, in fact, precisely how the court is theoretically supposed to work. The two-dimensional partisan framing—which, unfortunately, is very real in other domains—is what's causing the court to break down.
Kind of, yeah. Supreme court justices aren't elected, are appointed for life, and collectively have veto power over basically any law, should they choose to break (or gradually discard) historical norms.
I think it's telling that neither Biden nor Harris was willing to rule out court-packing at the presidential debates, and at this point I think they're right to leave it on the table! But, it really would mark the beginning of the end of the Supreme Court. It's easy to predict what would probably happen the next time power changed...
I think it's telling that neither Biden nor Harris was willing to rule out court-packing at the presidential debates, and at this point I think they're right to leave it on the table!
The correct answer to that question was obviously, "Congress makes the laws, including ones about the number of SC justices, not the President."
Idk about Google... But they're biased for more reasons than that.
But they are still an excellent source, and are about as good as it gets compared to most (supposed) non-partisan media these days.
Fwiw, I also believe their bias to be almost entirely unintentional, which is way more than can be said for most sites. For topical seminars, where authors might actually argue for a side, they do a decent job of getting various opinions from multiple sources, even if it's not always exactly balanced 50/50.
And they disclose all cases in which someone might be involved.
Like anything else, you still need to consider the source when reading it.
Everyone freaks out about social issues with SCOTUS (which is understandable), but their real impact is on economics. The destruction they've laid on the labor movement and help for big businesses is immense.
Just look at the commentary around overturning Chevron deference and non-delegation. Absolutely apocalyptic.
Is it would be positively apocalyptic to reign in the all-powerful unelected fourth branch of government the framers conveniently forgot to list in the constitution. Or to prevent Congress from creating executive branch entities that exercise the powers of all three branches of government. The SEC can make rules, sue you for violating them, and then adjudicate your violation, all under one roof. Pretty sure that’s exactly how Congress intended separation of powers to work!
If the extreme version of non-delegation took hold, it would be the end of all rational regulation. Do you REALLY want Congress writing technical documents about effective isotropic radiated power? Or the shape of curb ramps?
I don’t see how having article III remedies addresses the separation of powers issue. It just means you can kinda maybe fix up the damage afterward.
I think it’s fair to ask how far a non-delegation principle should go. There is clearly a continuum between legislation and enforcement discretion. But does that mean we should have no non-delegation principle at all? Is there a definable middle ground between Congress leaving it to executive discretion address technical minutea and Congress delegating oversight over entire sections of the economy to unelected bodies that can serve as judge, jury, and executioner?
They had a chance to end California's housing disaster in Nordlinger vs. Hahn but ruled in the favor of landlords and speculators. Justice Stevens even admitted that the law is unlikely to change under standard democratic processes.
Could you explain what you mean here? I assume from your reply to 'rayiner that you are criticising recent decisions limiting Chevron deference and applying the nondelegation doctrine. It’s confusing, because big business won the case establishing Chevron deference. Whether the principle helps big business or not depends on big business’s relationship with the relevant regulator. Is the “apocalyptic” commentary describing the past effects of Chevron deference, the current effects of limiting it, or the potential effects of future decisions further limiting it?
That's not really the court's responsibility. There is no legal definition of "interface" or "implementation". They're just trying to interpret a gray area in the law and it could come down either way.
A certification group that allows a good marketing point could also achieve. Just making up a name, "Our APIs are certified by Open API Association" might encourage developers to develop with A given company's API.
"Any real solution will have to be legislated. "
So true. Congress can amend the particular section of the code to explicitly exclude APIs from being copyrightable ... if they want to.
> There is no legal definition of "interface" or "implementation".
There is a legal definition of what is included, and what is excluded, from copyrightability, and (though its quite fuzzy, in large part because it was trying to incorporate a fuzzy judicial doctrine grounded in the First Amendment into the statute) what is included, and excluded, from "fair use" even if it otherwise violated copyright.
The courts job is very much to test existing concrete things against those definitions.
What really sucks is this was a perfect time for a lawyer to use Justice Thomas' analogy to better explain the difference. I would have tried something like:
"Close your honor, but let me expand on this further. Imagine instead that your opponent publishes their calls and they are regularly available to all individuals of the general public. However, while they may describe a call for going long, they do not give any specifics if the receiver starts from the left, center, right side of the field, how fast he should go, who should block for him, etc. They essentially are just assigning a call to a general concept of 'go long'.
Now as a competitor team, I look through their publicly available calls and say "Hey, thats a good idea, we should have a call for 'go long' as well". However, in practice my team does start from the left, and then cut in the center of the field to receive the ball. This may, or may not be totally different then what my opponents choose to do when they call "go long"
The additional benefit is if I transfer a new coach onto my team, he can use the call "go long" and even though the team accomplishes the goal, possibly by a different route, he can make the call to accomplish essentially the same thing."
Note: Not a huge sports guys, so perhaps my football analogy broke down a bit there, but hopefully you get the idea.
I think the playbook is just a bad analogy because it misses that point of what an interface is. It's the means of connecting two dissimilar mechanisms. A translation layer.
I'd have argued it's more like copyrighting doorknob placement (opposite hinge, at hand height) and operation (twisting) on doors vs. patenting a novel mechanism inside the doorknob.
A football playbook is more like the blueprints of the inside of the doorknob. Of course it's patentable if playbooks are patentable (I presume they are if considered works of choreography as in a dance).
I think the QWERTY analogy quoted in the article is perfect. QWERTY is on typewriters, computers, and smartphones. Same interface, completely different implementations. And this is technology that everyday people are familiar with.
It has always seemed to me that a good analogy for the API situation would be the design of typefaces (as distinct from a particular implementation of that design through, for example, instructions in a font file), which receives special treatment in US law and is not subject to copyright in that jurisdiction.
As far as I can see (but please note that I am not even in the US, never mind a legal scholar) the relevant US law is 37 CFR § 202.1 about “Material not subject to copyright” (https://www.law.cornell.edu/cfr/text/37/202.1). This enumerates several cases that are explicitly excluded from copyright protection. One is “typeface as typeface”, which was apparently interpreted as described above in a litigated case (Eltra Corp. vs. Ringer).
An argument has certainly been made, though I can’t immediately find the original source, that this exclusion is justified because of the utilitarian nature of a typeface design: allowing one party to control all use of it would be against the public interest, because ultimately that principle could allow for all printed communication to become controlled.
It seems to me that APIs fulfil a similar purpose. They are not useful in themselves, lacking a corresponding implementation. They are, however, an essential basis for standardisation, interoperability and communication between practitioners.
Under 202.1(b) of the law cited above, another class of works excluded from copyright protection is “Ideas, plans, methods, systems, or devices, as distinguished from the particular manner in which they are expressed or described in a writing”. I wonder whether a similar argument about the utilitarian nature of APIs as a specification distinct from its implementation could be made based on that.
But we are talking about copyright, not patents. So to stretch your analogy. Imagine I'm a door manufacturer, or maybe a manufacturer of tools for construction so that professionals can make their own doors. I create some kind of stencil that has the doorknob placement cut-out. And maybe a few variants with places for windows and such.
The general idea of such a stencil might be patentable, even if the general standard dimensions are not. The tool is a unique idea (maybe).
But we are talking about copywritten material. The specific stencil design, that you could photocopy is the thing in question.
And that is one of several arguments Oracle made, that api interface is a stencil.
I think I would agree the law supports that argument from what I know about it, copyright is pretty broad. But at the same time, I think that is perverse and we should change the law.
Or compare APIs to the car interface: steering wheel + pedals. If one car manufacturer was able to copyright them, then what are other manufacturers supposed to do? The second one can use joystick for steering, and maybe a lever for braking and acceleration. The third one has to invent something even weirder.
Everybody loses: manufacturers, because they can't easily create competing products, and users, because they have to re-learn driving every time they change car brand.
If I were Oracle's lawyer, I'd respond by saying that you can have the concept of "go long", but you can't literally name it "go long" because there was an act of creativity involved in mapping that name onto the concept of a receiver running far down the field. So you have to call it "go deep" or whatever.
It's not about the names though. It's that when you look at playbooks for both teams you see that the names of all the plays are identical, and under the same headings! And you come to the conclusion that the second team must have copied the names from the first teams playbook.
Such a thing might be considered fair use if the second team's argument was they indeed copied the playbook because they had a recruited some players from the first team and keeping the names the same made it easier for them during practice. But for now the judge is suspicious that they've come up with this explanation after the fact.
Yeah, I don't like it, but given my (probably poor) understanding of copyright, I don't see how Oracle is wrong here. It would be one thing if we were just talking about something like Math.max where there's really only 1 possible way to declare it; but it's the entirety of the API.
On a pure intelligence question the justices are likely top 1% or 2% among human populations. They also have disciplined minds that allow them to use their intelligence effectively.
It’s more likely the arstechniva writer failed to understand the point of the analogy.
Having just listen to the audio, it really annoyed me that Google’s lawyer kept saying “If we can’t copy this it would be impossible to write software.” And always left of the “in Java” part. Really fucking misleading.
I think the Justices were struggling a bit for analogies, but got the basic gist of the difference between implementing code and declarations.
The difficulty is that they have to think about this in terms of the relevant legal concept (merger) not the relevant technical concept (interoperability). You can copyright expressions of ideas, but not ideas themselves. Merger doctrine says you can’t copyright an expression of an idea if there is only one way to express the idea, because then the idea “merged” into the expression.
Do declarations merge into the idea of the implantation? In some sense clearly they don’t. If you have a set of functions that operate on an object, the convention in C is to put the object first and the parameters after. You “append, into this vector, this value.” In Common Lisp, it’s often reversed. You “append this value to this vector.” Both express the same idea—a command for appending a value to a vector—but there is a creative choice in the expression.
But you can think of the same idea at a lower level. “Calling a function named push to append an element to a vector where the first parameter is the vector and the second parameter is the element.” In that case, there is really one way to express that idea. Why would you think of the “idea” at such a low level? Because that’s what you’re doing when you’re interfacing with an actual API. The “idea” isn’t some abstract hypothetical function for appending, it’s the actual “push” function with parameters in the specific order.
The problem is that interoperability is not really something that goes to copyright-ability, but fair use, which comes after copyrightability. Dictating how you see the “idea” based on interoperability seems a bit like a phase ordering violation.
If APIs become copyrightable, we just have to change our strategy a little bit. Instead of making a compatible API, you write a program to modify other programs, which detects calls to the target API and transforms them to a shim that is not copyrighted, which can call either the copyrighted API or your new API.
First, as colejohnson66 pointed out, that may be a derivative work. This will depend on how your transformer actually works.
I can't think of any way to do it that does not involve having access at run time to a copy of the copyrighted API. If that copy is part of the transformer, there is a good chance the transform is a derivative work.
If the transformer does not include the copyrighted API, instead getting information about it from some external source that the user must supply at run time such as via an input file describing the API using some sort of API description language then it is much less likely to be a derivative work. Well, at least if it somewhat general, working with several APIs described in that language rather than just working with the one particular copyrighted API.
Second, even if it is not a derivative work, the people who use it to make the shim might be infringing. Usually that would not be your problem (unless you do something like indemnify your users, which I'll assume you would not be insane enough to do).
However, you have to at least consider contributory infringement. If I infringe someone's copyright using tools I got from you, and those tools have no substantial use other than infringing copyright, you can be held liable along with me for the infringement.
As with the derivative work case, if you can make the transformer general purpose so that it can be used for transforming APIs that are not copyrighted too, you should be able to avoid contributory infringement.
I'm thinking of a static analysis engine. "Look for function calls like this and replace them with calls to this shim and/or my new API." I am not sure how the shim could possibly be infringing as it would be my original work. (All new method names, all new module organization, all new namespaces. Maybe even different argument types, where possible.) There would be a version of the shim that would delegate to the original API, and another that would delegate to mine.
It’s always dangerous to try to read the tea leaves based on what questions the Justices ask. We really don’t know yet what they’re going to do. Anyone who says otherwise is mostly just guessing.
Where are the expert witnesses in this case?? Do we really expect judges in their 60s and 70s to understand basics of coding in order to come to the right conclusion??
I put myself in their shoes, if I had never looked at a line of code I couldn't even start to imagine what an API vs real code is. I'd probably think it's some made up concept that Google is using to save money and circumvent the law.
To play devil's advocate: Architectural diagrams/design specifications for physical buildings are copyrightable. The implementation is obviously whatever the builder does. But in general, I think that is a pretty close analogy to APIs and implementation code. APIs also capture some sense of overall system design as well. So that may lend further credence to support copyrights.
"""Under the AWCPA, an architectural work is statutorily defined as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans or drawings,” and “includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features,” such as common windows, doors, and other staple building components. Accordingly, per the definition, while individual standard features and architectural elements classifiable as ideas or concepts are not themselves copyrightable, an architect’s original combination or arrangement of such elements may be."""
API design largely determines whether a performant, correct implementation is even feasible within a given time frame. Setting aside whether or not developers can then successfully use the API to accomplish their goals.
Yep, it’s like patenting the ingredient list instead of the recipe. It ignores the process and says no ones allowed to cook any combination of fish, flour, potato, milk, and eggs.
The unique food might be fish balls, but it also covers fish and chips, and a million other things that could be done with that API.
Staying in this analogy, aren't APIs more like pictures or verbal descriptions of the facade of the building?
An API spec will not (necessarily) provide you with any internal implementation detail. Architectural diagrams/design specifications very likely will do.
To me an API is more like a survey of the land. If the architect doesn’t know the survey, then the plans might not be compatible with the features of the land... but he could still try. The builder also doesn’t need the surveyors permission to build on the land, the survey is just a description of the land. Owning the survey / API doesn’t do anything to change anyone’s rights.
I disagree that the IRL analogy of API is architectural diagrams. A better analogy for API would be an agreement on how to communicate what needs to be done (and what has been done) between two persons. The aggregate effect of that over thousands of people is a working system, coordinated by the mastermind (programmer) who dictates the actual orchestration of the entire system.
If API is copyrightable, I'd love to be the first person to copyright the following API (and variations thereof):
class Processor {
void init();
void process(...);
void cleanup();
};
If I get a nickel for every violation of that copyright...
I like the analogy of computer keyboards. The layout (QWERTY) would be the API, but keyboards differentiate themselves in numerous and substantial ways. It would be unworkable madness if each keyboard manufacturer was required to use a different layout.
My understanding is that QWERTY was developed to solve a mechanical problem with early typewriters in the 19th century (frequent jams). According to wikipedia the inventor spent 5 years developing it. I don't see why he shouldn't have been able to profit from that invention. The only reason we use QWERTY now is due to the fact that early non-mechanical keyboards were designed to be used easily by people who had trained with mechanical ones. If "licensing fees" for QWERTY back then had been an issue, manufacturers would have just used a non-copyrightable ABCD... layout, or paid for QWERTY. I don't see it as a disastrous outcome.
Then the blueprint is the contents of the communication, not the method of communication itself.
The blueprint would be communicated by mail or sneakernet.
You can copyright the contents of an email (indeed, I think they have an implicit copyright, don't they?), but you can't copyright the way in which emails in general are transmitted and exchange. (That would probably be a matter for patent.)
Copyright violation requires copying, and independent derivation is a valid defense.
Patents don't require proof of copying and are always infringed, even with no knowledge.
If you wrote that API, and I wrote that exact same API without having seen yours, you wouldn't be able to sue me for copyright violation.
All I'd have to show in court is that there's a decent probability that I independently created the same API, at which point we'd both have full copyright over our own (identical) APIs, and more likely it would be ruled un-copyrightable due to being too trivial / not creative enough.
Even if independent derivation is a valid defense, with Oracle setting a precedence, people would be taken to court all the time, and what is considered trivial becomes a matter of opinion. It won't be long before the whole situation devolves into automated takedown of GitHub code by big corporations.
Ideally, we shouldn't even have to go to court to begin with.
Nobody is saying that the overall design of a system isn’t subject to intellectual property law. But it’s an area of patents rather than copyright. Amazon until recently held a patent (it just expired) on the concept of having a button on a webpage that you click to buy something. IBM at one point held a patent on the concept of sending data from one computer to another computer. One of Google’s arguments in the case is that Oracle is trying to argue a copyright claim on something that is actually covered by patent law (and which was already found in lower court not to be a patent infringement). If you invented a fancy new way to couple together electrical wiring, or train cars, or drivetrain to a motor, then you would file a patent for it. My take is that Oracle is banking on the fact that an API is written in words (especially in Java...) to muddy the waters enough to obscure the technical and thus not copyrightable nature of an API.
Can you copyright Harry Potter the character? Or can anyone use recognizable Harry Potter reproductions in commercial context, be it alternative books, movies or merchandise?
This is where the confusion lies: Google claims Oracle is copyrighting an interface to Harry Potter (as per your example) -- i.e., they are claiming copyright to any / all characters that are (1) a boy in his early teens (2) has magical powers (3) goes to wizard school.
Now, the question is, where do we draw the line: As per Oracle, there cannot be any other character that does what Harry Potter does.
That's a stretch. Oracle is claiming copyright on a specific API with a specific name, specific organization and specific individual components / attributes. It is not claiming copyright on all standard lib APIs. In fact, there is no evidence that Oracle has any intention whatsoever to sue Google over Go or Dart.
Copyright law already allows you to copyright specific combinations of unprotectable elements. It's called thin copyright, it's why Katy Parry got sued and lost, and it's software application is called Structure, Sequence, and Organization (SSO). You can in fact claim copyright on all characters that look like Harry Potter, because the standard for copyright infringement is "access and substantial similarity". This is because if your copyright doesn't extend to someone blatantly tracing over your work, then it's not a copyright.
You specifically need to argue that the API itself - the specific combination of types in a specific order, with a given set of Unicode or ASCII characters to identify it - is not copyrightable, not just that it's made up of uncopyrightable things. This is harder, because this same practice in other contexts (e.g. music, literature, and so on) is very much protectable. You need to argue that software is different.
Expert witnesses play a role in trials, they play no direct role in appeals where fact claims (to the extent they are reviewable at all, which is normally limited when, as in this case, there is a jury-trial-by-right, because otherwise you obviate the right to a jury trial, though its worth noting one of the issues in this case is that the Federal Circuit tossed aside the jury verdict using a standard which is not usually appropriate for review of fact questions in such a scenario) are decided by review of the trial record and, to the extent that the trial record is not sufficient, remand to the lower courts for further proceedings with legal guidance.
> Do we really expect judges in their 60s and 70s to understand basics of coding in order to come to the right conclusion?
We expect the parties to have developed their fact claims at trial or, failing that, to be able to explain to judges why any issues needing factual evidence are insufficiently developed in the trial evidence such that if they were critical it would require remand (and the reason better be something like "we were improperly prevented by the trial court from presenting evidence" or "this is a issue that somehow was allowed to be raised for the first time on appeal so we had no opportunity to present evidence on it at trial".)
> Do we really expect judges in their 60s and 70s to understand basics of coding in order to come to the right conclusion??
Can substitute any field for "coding" above and come to the same conclusion.
Quickly getting up to speed on the terminology and issues of fields in which they have no formal training or first hand experience is a big part of the job description of being a justice.
I don't think so, coding is so different than it has ever been, and is a different paradigm that most other things. Take farming, for example. Fundamentally farming is 100,000 years old. Getting up to speed on modern methods is just adding something else to the stack and, while complicated, those methods aren't totally foreign for someone who understands what farming is.
Something like coding is so alien to a 70-80 year old it's basically incomprehensible. That won't be the case with us in 50 years when were that age because we understand it, but there will probably be other things at that point that are equally incomprehensible.
>Oracle, for example, re-implemented Amazon's S3 API so that customers who built software for Amazon's cloud platform could easily switch to Oracle's rival cloud platform.
So if Oracle wins here, they will get fuxxed by Amazon?
I would wholly expect Amazon to sue over S3 implementations by Oracle, IBM for SQL, etc.
I would want the whole industry to target Oracle. Get their pound of flesh.
Mutually Assured Destruction from the fallout of a terrible decision that forces the SC to re-evaluate (through another case etc) is better than letting something like this settle.
Honestly, companies shouldn't be worried about the FANG's, because they will create alliances and largely refrain from suing one another. It's the never-ending, death-by-a-thousand-cuts onslaught from trolls that will murder small/medium outfits.
The east texas troll court is going to have a boom like it was 1840s California just to support all the litigation in our near future -- if this passes.
The East Texas troll court is focused on patent cases, and presumably won’t be the venue of choice for copyright law trolling. I’m sure that venue already exists.
They reimplement MySQL for Aurora Serverless, but losing Aurora Serverless MySQL probably hurts Amazon less than losing their S3 clone hurts Oracle, and in any case MySQL is GPL and Amazon doesn't redistribute their implementation, so they are probably within the license anyway.
Amazon release their S3 client libraries under the Apache license. Creating a backend for that client is permitted under the license. So all these S3 clones are fine.
not really. their client is under the apache license but not the implementation of the server, where the api is defined.
to use the client (boto) with a server you need to CLONE the api. even the headers which are named: "x-amz-server-side-encryption-customer-algorithm" I doubt that oracle would need to call that "x-amz-server-side-encryption-customer-algorithm"
I saw one question from Gorsuch quoted in reports about the arguments that bothered me: "What do we do about the fact that the other competitors, Apple, Microsoft ... have, in fact, been able to come up with phones that work just fine without engaging in this kind of copying?"
macOS and iOS (and indeed Apple itself) would not exist as we know them today, if at all, without very liberal cross pollination of APIs. In a parallel universe where APIs are copyrighted to the extent that Oracle wants, GNU would not exist. Konqueror and Safari could not use Microsoft's XMLHttpRequest(). The list goes on and on.
You say GNU would not exist, which is true in it’s current form. But that doesn’t mean we wouldn’t have had a Unix-like (although not strictly compatible) free system.
It’s also true that Safari couldn’t have used XMLHttpRequest unless Microsoft had licensed it. But that might have sped up the incorporation of an open standard alternative.
It would definitely have created a different history to the one we have now if APIs were assumed to be copyrighted, but it’s not reasonable to just assume that everything that has been based on them would not have been built some other way.
> have, in fact, been able to come up with phones that work just fine without engaging in this kind of copying?
Which, of course, is completely false. All of them have many, many reimplementations of open APIs in their many layers of software. It's just that no one was stupid enough to copyright those APIs and try to sue someone else for implementing an API before.
Oracle's actions threaten to upend the common understanding of software ecosystems and throw everything into disarray.
This decision doesn't change anything as long as software vendors use a permissive license.
The fear mongering about all sorts of cases in which might be affected (API, file formats) area under the assumption that the copyright holder has disallowed use which is the problem.
I suspect many will include provisions to allow it in their licenses otherwise the ecosystem for their products would shrink radically.
The American right in it's current form tends to treat everything as property and is very supportive of defending all things copyright related. A lot of this has to do with the waning influence of libertarian thought on the American right and it's drift towards a more corporatist philosophy. The American left is better in this respect, but has likewise become more corporatist in it's outlook over time.
> The questioning seems to imply there's a split among party lines. Is that a coincidence or is there some political aspect to this?
A little bit of both; the right is more inclined to strong, especially commercial, property rights even for things like copyright that are expressly, both Constitutionally and statutorily, bounded and contingent, while the left is (from a judicial perspective) generally more supportive of public interest limitations in general and fair use, which while statutorily enshrined was judicially created based on the First Amendment before being written into statute, in particular.
That said, its far from a perfect mapping and you'll often see splits that don't follow party lines in copyright, and the late Justice Ginsberg, while one of the more liberal justices on the court, was known to favor strong copyright.
in general, outside of perennial hotbutton issues that are permanently both highly politically salient, stable in partisan orientation, and at the focus of judicial selection, which copyright very much is not any of, divisions of the court aren't strongly determined by party even when they happen to align with party.
> Eagle-eyed readers may have noticed that the argument seemed to split along partisan lines. Kavanaugh, Thomas, Alito, and Gorsuch—all apparent Google skeptics—are the court's conservatives. Sotomayor, Breyer, and Kagan form the liberal wing. Chief Justice Roberts, who asked tough questions of both sides, has often been seen as the court's swing vote since the retirement of Justice Anthony Kennedy in 2018.
> Grimmelmann argues that this was a coincidence. The late liberal Justice Ruth Bader Ginsburg, for example, was known as a copyright hawk and could easily have sided with Oracle if she were still alive. Before his elevation to the Supreme Court, Justice Gorsuch authored at least one dovish opinion on copyright issues. In the 2014 Aereo decision, all of the court's liberals (along with two conservatives) held that Aereo had infringed copyright, while three other conservatives dissented.
I am really not up on copyright law, but I see this as analogous to someone writing a book. Say I wrote a book and titled all of my chapters the same as another book, the book was given a different title and the chapters themselves where very different on the inside but naturally my table of contents looks exactly the same, would this be considered infringe in the publishing world (I don't know)?
Also based on that:
If it would why would API's be different?
If not how was it applied differently here?
What if in the above scenario, I added some extra chapters so the TOC has all the chapters the other book had, but the TOC is not a 1 for 1?
If my analogy is wrong, what am I not seeing?
I know as someone who writes software, API's not being copyrightable is preferable, but I would like to understand how the law sees it when dealing with real physicals works and understand if the law is applied the same when it moves to less concrete works.
Books are not equivalent to software because software has a functional purpose. While programming has creative elements, the primary goal of a program is to achieve certain functions (whereas the primary goal of a book is to enable creative expression or to record factual information).
If I want to support a Windows program on Linux I have no choice but to implement the Windows API. Likewise, if I want to interface with a program that stores data in S3, I have to replicate the S3 API.
That's why I think that there's no good analogy for software APIs among traditional media.
As far as the law goes, Google's argument is that because software APIs are arbitrary choices and necessary to be copied for interoperability that software APIs are noncopyrightable under section (b) of this statute. https://www.law.cornell.edu/uscode/text/17/102
Books can have a functional purpose. E.g. if it is a reference manual for a car. If you used the same table of contents for the reference manual, but the contents were substantially different, would that still be unlicensed copying?
Books don't have a functional purpose in the same way as software. With a book, there are many ways to state the exact same fact (and the fact itself is not protected by copyright law). With a program, there's only one way to call a particular function, or to write a function declaration that an existing program can call. The exact text used in a program is relevant to its functional purpose.
A more apt analogy in the case of a reference manual is perhaps a competing manual that presented all the same maintenance information with different words, since they would achieve the same functional purpose with different expressive content.
This article really overstates the case by focusing on copyrightability while leaving fair use for a tag at the end.
Winning on fair use is not a disaster for Google. Google winning on fair use on procedural grounds, if the Court uses that as an excuse not to even answer the copyrightability question (the narrowest possible grounds for a Google victory), does not, contrary to the article's claim that "a Google win on a narrow procedural question would create a lot of legal uncertainty in the software industry", create any new legal uncertainty for the industry.
If Google wins on fair use, then re-implementing much (but not all) of a 10,000-element API is fair use. That leaves the industry somewhere near "APIs can be copyrighted, but that doesn't change anything".
This whole general area has managed to be rather ambiguous for a long time now. One of my lawyer friends was reminding me yesterday that the Lotus v. Borland look-and-feel case was actually never decided at the SCOTUS level even though it was taken up because of a circuit split. SCOTUS split 4-4 and let the First Circuit opinion stand.
I thought that until I got to Google's closing remarks. They said that 1) the Federal Circuit didn't really do a de novo review like they said they did, and therefore that their overturning the jury didn't have the excuse that Oracle said it did, and 2) that Oracle was factually incorrect in several statements it made in the hearing. If those claims are accurate, Google is likely to at least win on fair use.
I haven't seen a single positive article about Google from ArsTechnica (and plenty of ones that were overly sensiationalistic, especially aroudn Android which I'm pretty familiar with professionally).
Is there any more independent media article describing what went on in the hearing?
The big question here is the distinction between standard and API.
If Java is also a standard, then laws applicable to all sorts of standards apply. And this could be a relatively good line of defense.
An API itself is not necessarily a standard. More importantly, a distinction would have to be made between a standard and its implementation.
Technical argument is whether API is procedural or textual. Procedures cannot be copyrighted only patented, including design patents and algorithm patents. But API itself is not procedural.
QWERTY sequence of letters is not necessarily copyrightable because it's not a document or result of machine processing of one and as such is a bad analogy.
An API actually has a source code and mechanically processed version.
Oracle publishes it as documentation, which is probably copyrighted, and Java source code, which was copyrighted until OpenJDK.
The trick here is to define minimum creativity required for copyrightable work. If the API is narrow and trivial, you probably cannot copyright it anyway. There is additonal trouble when said API has no meaning without an implementation or is not published.
Reverse engineering may be prohibited by a licence.
The linked Ars article is excellent, and it's a reminder of how much better Timothy Lee is at covering these issues than the people who cover them for major newspapers. For example, compare his article to the Times article on the same case: https://www.nytimes.com/2020/10/07/us/supreme-court-google-o....
It's not enough to say that Lee is writing for a specialized audience while the Times caters to a more general audience. Even after accounting for that, Lee's coverage of the case is superior.
> Supreme court judges just do not have the conceptual framework to properly adjudicate this. I don't think it's going to be possible to teach them the difference between interface and implementation within the parameters of these arguments.
I mostly agree with you, but let's give credit where credit is due. Justice Sonia Sotomayor, from TFA:
> "[...] since 1992, [courts have said] the application-programming interface, of which the declaring code is a part, is not copyrightable. Implementing codes are. On that understanding, industries have built up around applications that know they can copy only what's necessary to run on the application, but they have to change everything else. That's what Google did here. That's why they took less than 1 percent of the Java code... Everybody knows that APIs, declaring codes, are not copyrightable. Implementing codes are. So please explain to me why we should now upend what the industry has viewed as the copyrightable elements, and has declared that some are methods of operation, and some are expressions. "
Maybe we get lucky and the SCOTUS ruling comes down against uncopyable API's. But while that seems questionable at the moment, it's important to remember one thing: there is always an "out" even in the "nuclear option" case and that is "have Congress change the law".
It seems to me that now is the time to start thinking about putting together a mass effort to get Congress to change copyright law, to establish clearly the semantic distinction between API and implementation, and to make it clear that the API part can be "copied" in the name of interoperability.
No, that's not an easy thing to accomplish, especially without armies of highly paid lobbyists, but I'm guessing that a few big companies - like cough Google cough might be interested in supporting such an effort.
I observe the 1978 report that recommended that computer programs should be subject to copyright included the following recommendation in its conclusion:
« Any legislation dealing with either computer or photocopying issues enacted and based upon these recommendations should be subject to a process of periodic review. »
More generally, I feel that one of the main reasons the Supreme Court is such a powerful body nowadays, and why cases like this are considered so important, is because Congress has become so ineffectual. We have internalized the idea that the Supreme Court has the last word on every matter before it. But it emphatically does not. The Supreme Court is only the last word on constitutional cases. So many decisions - this one, certain decisions on gerrymandering - are completely overturnable by Congress.
More generally, I feel that one of the main reasons the Supreme Court is such a powerful body nowadays, and why cases like this are considered so important, is because Congress has become so ineffectual. We have internalized the idea that the Supreme Court has the last word on every matter before it. But it emphatically does not. The Supreme Court is only the last word on constitutional cases. So many decisions - this one, certain decisions on gerrymandering - are completely overturnable by Congress.
> The Supreme Court is only the last word on constitutional cases.
No more so than statutory or any other cases; just as regulation can be changed by the executive and statute can be changed by the Congress, the Constitution can be amended by the process set out in the document itself.
The Supreme Court is the ultimate arbiter of the current state of the law, but no law that it applies, including the Constitution, is immutable.
« For decades prior to Oracle's lawsuit, most people in the software industry assumed that APIs couldn't be copyrighted. »
Well, what were they supposed to assume?
It's shameful that it's been 40 years since computer programs were explicitly protected in the US under copyright law, and this remains an unsettled question.
This situation is an extremely poor advertisement for the practice of passing vague laws and letting their boundaries be settled over time by court cases and precedent.
It's painful to have to listen to lawyers argue by an analogy between function declarations and Harry Potter chapter titles.
This is the thing that really bothers me [from a comment in the post]:
> 2) Also realize that the SCOTUS' job is not to decide what's right, but to decide what's legal given the constraints and allowances of both the Constitution and law. Even if a Justice were to feel like copywriting APIs would have terrible knock-on effects, she would be compelled to rule in favor of granting them if she believed that the laws passed by Congress required it.
So much of the arguments were specific to the Google/Oracle incident and not as much about the implications except for the thing about QWERTY and perhaps some vague analogies. I thought at the SC level it should always consider 'terrible knock-on effects' and act accordingly considering but not strictly bound to what came before.
Well, they sort of do. When existing precedent is clearly outside the bounds of what's considered "just" today, it's not unknown for SCOTUS to discover a new right or reinterpret a precedent. That said, they (rightly) mostly rely on precedent and the law rather than deciding on the basis of the good of the many by their lights.
As someone else in the comments said, I'm on Google's side here on the basis of this being the general industry assumption for a long time and interoperability generally being a good thing. On the other hand, does anyone here honestly believe that a complex API some team spent a lot of time designing isn't really a creative work?
I read somewhere that they were planning to but didn't due to SUN's hardware business. They should have sold that business off to another company and kept the software side of it.
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[ 4.7 ms ] story [ 359 ms ] threadI don't see how losing even a few billion dollars could be a disaster for Google at this point. They control most of the smart phones in the world, and that's worth much more than that amount of money (regardless of whether using Java was the right choice or not).
The case was bad for Google because their lawyer was bad.
The case would be bad for software everywhere, because API copyright. (in future)
You're mixing both and asking why it would be bad for Google
Apple wouldn't have to just use hard-to-find screwdrivers, they could just make a new screw shape, copyright the design, and then it'll be even harder to open their gadgets.
https://en.wikipedia.org/wiki/List_of_screw_drives#Robertson
Not that expiring in a decade or two would help in the area of tech where stuff moves so fast.
Originally, Oracle sued for both patent infringement and copyright infringement. When they appealed, the appeal went to the Federal Circuit because of the patent issues, and so the Federal Circuit ended up handling the appeal of both the patent issues and the copyright issues.
If the case been just a copyright case, the appeal would have went to the 9th Circuit.
If it had taken that route, the 9th Circuit would have almost certainly upheld Judge Alsop, and the Supreme Court almost certainly would not have taken an appeal from that.
The Federal Circuit is suppose to apply the precedent of the circuit that the case came from when deciding issues like the copyright issues that are only before the Federal Circuit because they tagged along on a patent case. In this case, that means they were suppose to follow the 9th Circuit precedent.
I think we need to change the way the Federal Circuit works in cases like this. If they decide issues that got there via tag along, I think the appeals path for those issues should be to the circuit whose precedent they are suppose to be following. In this case, that would mean that the copyright issues should go to the 9th Circuit after the Federal Circuit.
The current way can lead to a situation where in a given circuit you can effectively have different laws for X depending on whether or not someone sues you just over X, or over X and patents.
If sued over just X, the law on X is what the circuit court of appeals for your circuit says. If sued over X and patents, the law on X is whatever the Federal Circuit thinks it is. Those can diverge, and then you have the situation that plaintiffs can choose what they want--sue just for X to get their circuit's law, or toss in a throwaway patent claim to get the Federal Circuit's law.
Sure it would.
Unless they decided not to take it; it was coming to them one way or another. It's not like either side was going to take a loss lying down.
But the Seventh Amendment issue probably wouldn't be in it if the patent issues hadn't had it going through the CAFC rather than the 9th Cir.
The world is going to be fine.
How? For that to be true, there would have to be binding precedent applicable outside this case. But Federal Circuit decisions on legal questions—for instance copyright—outside their special subjects (patent claims is what got this case before them) do not create binding precedent for any lower court.
Had this not gone through the Federal Circuit, and had it been the Ninth Circuit (which otherwise would have been the court to hear the appeal) that had ruled, sure, you could then say “Hey, look, there's not some apocalypse due to this ruling happening in the Ninth Circuit, so it must not be a real problem”. But the Federal Circuit decision, notionally applying Ninth Circuit law, has no binding effect on any other court in any other case, so of course it hasn't caused an apocalypse. Precisely because no other court, trial or appellate, has ever held APIs to be copyrightable.
There was nothing stopping anyone from capitalizing on that ruling and moving forward with bring this "disaster"
This was brought up during the oral arguments and Google did not have a great answer.
Talk about cutting off your nose to spite your face.
2. The amount of money Oracle would get back (and going forwards) in licensing fees for Android would probably dwarf most financial prospects from any API reimplementations that might be at risk.
Because APIs have never before been considered copyrightable, unless Google wins on fair use in this case, we will have exactly zero on-point case law as to when an API reimplementation is fair use.
Speculating on what would be considered fair use in API re-implementations in that case would be extremely speculative.
> The amount of money Oracle would get back (and going forwards) in licensing fees for Android would probably dwarf most financial prospects from any API reimplementations that might be at risk.
Maybe more than existing ones, but is it worth more than the entire strategy of using API reimplementation to stay in the game against Amazon, who is far and away ahead in cloud? Is losing that worth a parasitic claim on Android until Google replaces it with something not subject to that claim?
Why would that be considered fair use, and Google's not be? As far as I can tell it's exactly the same situation.
It is important to realize that since APIs have never been viewed as copyrightable previously, we also, if Google loses on both copyrightability and fair use, will have zero case law that is directly on point for any API reimplementation being fair use. Speculating on the law that will develop in that area is fun, but almost by definition not strongly grounded.
Supreme court judges just do not have the conceptual framework to properly adjudicate this. I don't think it's going to be possible to teach them the difference between interface and implementation within the parameters of these arguments. And beyond that the conservative majority is predisposed to treat everything as property. This is not going to end well.
It's nowhere near as world-ending as Google's public policy team would like you to believe. But given that Android is not fair use (it's not interoperable, they just wanted to glom on the popularity of the platform), it sucks for Google.
I don't think this is such an easy argument. Google's interest was ultimately the bottom line.
Without discussing the copyrightability, from a strictly monetary perspective, APIs are product that, in this case, has a very high monetary value (market share == $$$), and Google chose it for this very specific reason (developers == market share == $$$). Again, I don't imply that copyrightability is good or bad, but the entire matter has been about money, and strictly from that perspective, ownership has a sense.
That seems incompatible with the text of Section 107, which includes the amount copied as a factor for determining fair use. The more compatible your implementation is, the more you have to copy, so the logical end of this reasoning is that Android's implementation of Java would be fair use if it had copied all of the API, not just a subset.
Why it should? It would mean that implementing commercial Java runtime without Oracle license is not possible?
You could arguably implement Java without a license from Oracle provided you were using the GPL, as OpenJDK is released under the JDK, and presumably includes the entire Java API. The problem for Google, of course, is OEMs would've balked at being forced to open source all of their proprietary modifications to Android.
Wikipedia says the OpenJDK was released in 2007, so Google could've legally used the Java API under GPL terms, but chose not to, and also chose not to pay for Java licensing.
https://en.wikipedia.org/wiki/OpenJDK
OpenJDK have linking exception, so it doesn't apply. In fact Android uses OpenJDK now. It also makes Oracle case looks phoney, suing Google for Java usage while having released freely available OpenJDK.
But that's not the point, I think implementing API/ABI/protocols/whatever should be allowed whether or not vendor wants it. There are many reimplementations of competitors APIs, and ruling in favor of Oracle would basically break that. Under that interpretation Wine would be in danger too, as significant part of Wine development is commercial (by CodeWeavers making their CrossOver product).
So, as long as you are using it under the license Oracle offers it to you under, you could use it without a license from Oracle?
I think that is inherently self-contradictory.
> Why it should?
Because its explicitly a factor, in the statute, for fair use analysis.
> It would mean that implementing commercial Java runtime without Oracle license is not possible?
Maybe, maybe not. If Google loses on both copyrightability and fair use, the entire case law on API fair use will be one negative instance. We might also get a more specific test articulated in the ruling, but we have no idea what that test would be now, so its hard to speculate (well, easy to speculate, but hard to judge which speculation is more accurate) what the impact would be on any other use.
That is not at all clear.
But given that Android is not fair use (it's not interoperable
How is it not? Lots of code written for the JVM will build and run unmodified on Android. Not 100%, but WINE isn't 100% compatibile either.
What about improving the API? E.g. some languages may be mostly but not 100% compatible with existing languages and provide more or less the same API but not be 100% the same - both the in the runtime library (API) and the language itself.
For example Free Pascal is mostly compatible with Delphi but not the same and its runtime library is mostly the same as Delphi but also not the same.
That has implications for language implementations too. Who would own the standard library for any given language? What about programs that call API functions? Are they derivative works too?
An API is necessarily functional first and foremost. It would cause chaos and some weird dystopian future if Oracle wins.
BUT in this case we are talking not of using part of an API (say the Math library to implement a physics engine is assembly and link it) but of reimplementing a whole language which has, as of today an when the events discussed took place (even if we agree to hate it) an owner.
When they first design and publish it yes, but Oracle didn't design and publish the Java APIs, they bought them after they had becomes very popular and widely used.
At that point they don't need to care about making it popular, it already is, all they care about is milking that existing ecosystem for every penny they can get. If future API publishers care about this they can just license out their API spec, but right now Oracle just wants to be able to squeeze whoever they can until the pips squeak.
For example, glibc is owned by GNU, and it is licensed under the LGPL, so you are allowed to dynamically link it without having to release your own code under the GPL (or compatible). This is all happening today.
The only projects that will be more seriously affected by this decision are WINE and similar - projects that are copying the API but not the implementation. Even here, it is very likely that WINE could win on Fair Use, since their copying is obviously done for interoperability.
Also, APIs are obviously creative human works, and their purpose is first and foremost usability for the end-user.
That's an interesting question. Perhaps K&R? Or maybe their employer? Or perhaps by now the copyright may be with ANSI/ISO?
But this does raise an interesting point, about who would own copyright on something that was not believed to be copyrightable for much of its history.
Require copyright assignment or a guarantee for royalty free use by any implementation. Standards committees already have to deal with hidden patent dependencies someone might sneak in so this would just be another bullet point on paperwork that should already exist.
Thing is, for chip manufactures it makes no sense not to allow others to call this x86 API. Things could get dicier for other who try and virtualize a machine instruction set.
A compiler outputs machine code, it doesn't implement machine code.
Google's Java implementation implements Java APIs.
This case has been a ticking time bomb, where the law is to decide whether ideas are patentable. Extremely scary news, seeing it go badly.
relax, its 2020 so now lets just enjoy how "crazy" this whole thing can go to and finally if Oracle wins... we RIOT, won't end well alright
As another HN commenter put it to me when I made the same mistake: "The GPL is not viral." If one party breaks the terms of the license, then normal copyright goes into effect.
No, not at all.
OTOH, it does mean if they implement a GPL interface in proprietary software it does mean that they are in violation of copyright (barring a fair use defense) and the GPL, potentially triggering the loss-of-license provisions of the GPL and other legal consequences.
This is misleading at best.
For example: RBG, despite her left-leaning reputation, was easily one of, if not the, most pro-copyright and pro-IP justices on the bench. (Relatedly, she also was pretty pro big business, which rarely fits the portrayed narrative.)
Not all areas of law, especially at the Supreme Court level, easily translate into right/left politics.
https://www.law360.com/articles/1312244/ginsburg-remembered-...
https://www.realclearmarkets.com/articles/2020/09/23/justice...
What is with the ridiculous hyperbole that's so common when talking about America on the internet, especially by non-Americans? Talk about "American exceptionalism" - just in a different way.
It also varies quite a bit by subject-area. In Germany, the constitutional court held (around the same time as Roe) that legalized abortion was unconstitutional, violating the fetus's right to life. Today, it is technically still illegal, but decriminalized up to 12 weeks. (Shorter than in almost every state in the U.S.) The abortion rate in Germany is much lower. The Democratic party's views on abortion would not be considered center-right in Germany. On gay rights, Germany got legalized same-sex marriage a couple of years after the U.S. And things like surrogacy, which gay male couples often rely on to have kids, is illegal.
Or, consider that Merkel, a member of the center-right Christian Democratic Union (CDU) has called for a ban on burqa. To my knowledge, even Trump has not said anything like that. Similarly, on immigration, while Merkel allowed Muslim refugees, her successor declared that a "mistake" which the country had "learned from." Democratic favorability to refugees would not be a center-right position in Germany.
In the area of religion, the U.S. is extremely left wing compared to every country but France. In the U.S., teaching religion (as such) is banned in public schools. In the U.K., Germany, Italy, and Spain (four of the five largest EU countries) it's actually required, either by statute or by the constitution. Children have a right to receive a religious education at the public expense in these countries.
In the area of taxes, the Democratic Party is center-right in some ways but quite left win in others. Merkel has championed Germany following along with Trump's corporate tax cuts. The Democrats' proposal to repeal that would not be a center-right position in Germany. The Democrats' proposal to tax capital gains as ordinary income is quite left wing. Most Western European countries, including Germany, have preferential treatment for capital gains taxes. In general, the U.S. has the most progressive tax code in the OECD: https://opportunitywa.org/u-s-federal-income-tax-structure-m...
But Democrats' tepid support for labor unions, for example, would be considered center-right or even right-wing in Germany.
On the whole, on social, religious, and immigration issues, the current Democratic Party is solidly to the left compared to western Europe. On labor issues, it's to the right. On corporate and investment taxation, it's solidly on the left. On healthcare, its to the right, but mainly for reasons that have to do with minimizing disruption to peoples' current private insurance. Where they want to end up, single payer public insurance, is solidly on the left.
Our next Vice President will very likely be a Democrat who, in 2019, supported single-payer public healthcare, treating capital gains as ordinary income, a 35% corporate income tax rate, a financial transactions tax, publicly funded abortion with no compromises such as waiting periods, Green New Deal, free healthcare for people who immigrate illegally, etc. If she actually believed those things, she would be a solidly mainstream left politician in most European countries.
Democrats generally agree that there should be universal access to health care, and a mostly agree that that should involve a public plan (not just a private subsidy) available to at least some section of the population beyond the current Medicaid population.
There is not general agreement within the Democratic Party on universal single-payer as even a long-term goal. The currently dominant neoliberal faction of the Democratic Party supports a public option as a long-term component of healthcare policy to acheive universal access, but does not generally support single-payer as a goal, in either the near or long term.
> In general, the U.S. has the most progressive tax code in the OECD
As your own source notes, net of transfers and taxes, the US has one of the least progressive systems in the OECD.
> In the area of taxes, the Democratic Party is center-right in some ways but quite left win in others. Merkel has championed Germany following along with Trump's corporate tax cuts.
You seem to be really obsessed with the CDU as your measure of center-right parties, but AFAICT the CDU is to the right of most parties labelled center-right, not just in Europe, but even in Germany specifically (which has a fairly wide range of center-right parties.)
But, yes, its really only the dominant faction of the Democratic Party that is center-right, the "progressive" faction is center to center-left by European terms, and the whole (today, with the gains the progressive wing has made over the recent years considered) is probably more center than center-right; the "Democrats are a center-right" party was most true at the height of the Clintonian neoliberalism of the Democratic Party which as faded over the last decade or so and particularly since Bernie Sanders 2016 campaign reenergized the progressive wing, though it has still not become dominant.
A big majority of Democrats support Medicare 4 All: https://www.kff.org/wp-content/uploads/2020/01/9394-Figure-3.... They support a public option somewhat more, but to me it seems more like they do so to soften the transition to a single-payer system. A “public option” wouldn’t be like the multi-payer systems of Germany, Switzerland, or the Netherlands. Since it would kill private competitors in the long run, it’s just a slower road to single payer.
Regarding taxes: netting transfers mixes up the tax system from the welfare system. As the article points out, our taxation is progressive but our spending is regressive. It’s a system designed to redistribute money from the rich to the middle class, not the middle class to the poor.
As to Germany, I use that as an example because it’s a large European country and I’m familiar with it. CDU has been moving left for the last 15 years: https://fivethirtyeight.com/wp-content/uploads/2017/08/hazar....
Like the above, various international party comparisons show Democrats moving left of center by 2012: https://fivethirtyeight.com/wp-content/uploads/2017/08/hazar...
As to social or religious issues, Italy or Spain would be more conservative in some respects. (Islam isn’t a recognized religion in Italy.)
The recent rise of progressives has moved Democrats sharply left in part because Europe has been moving to the right economically for decades. Low corporate and investment taxes and deregulation is gospel across the European center, but it’s disappeared among progressive Democrats. That wasn’t remarkable in 1975 but it’s remarkable today. Macron, for example, is campaigning on deregulation and a government takeover of Islam, and his major competition is to his right. Center left parties in France aren’t questioning the country’s fairly low corporate and investment taxes. Neither are those in Spain. Democrats (in particular Warren’s utterly cockamamie proposal) really stand out in that area as a throwback.
Green New Deal is a great example of this. It’s an FDR era jobs program. It stands in stark contrast to Europe, which is doing carbon pricing. Progressives seem to have developed an allergy to markets, and while the center isn’t there yet it’s not pushing back either.
I mean that’s before you get started on Sweden’s center-left party continuing to cut corporate taxes and partially privatizing social security.
Oh, I forgot about school choice. Democrats are far to the left compared to Europe in that.
Sure, a big majority of Democrats in the electorate do.
The description of the center or center-right nature of the Democratic Party is not a description of the party-in-the-electorate but the institutional party. In fact, it's frequently expressly contrasted with the views of the party-in-the-electorate to argue that the institutional party is a poor agent of its membership.
Turning to polls of the party-in-the-electorate to argue against the characterization is, at best, not understanding what the discussion is about and, at worst, the fallacy of equivocation.
> netting transfers mixes up the tax system from the welfare system.
In every state, taxes and the welfare system are already mixed up, and the division of function between them isn’t consistent fromm state to state. Viewing them separately miscasts differences in preferred vehicle with differences in preferred function. Or vice versa.
Any other Western democracy (including some Western-model democracies outside of the West proper), sure. But then the left-right axis is not really readily transferrable to outside of that domain, anyway.
Trying to peg a generic one dimensional (left-right) or even two dimensional (social/fiscal) political position on justices is difficult, even with loosely defined labels/ categories.
It's much easier to look at justices relative position/ rank on a per-topic basis.
Alternatively, and less useful to the general public, but very useful to SCOTUS junkies, is looking at cross tabs of how often a particular justice votes with others. Especially when they break from the publically perceived left/right voting block, which is more often than most think.
Scotusblog is full of this type of analysis for those interested:
https://www.scotusblog.com/category/empirical-scotus/
https://www.scotusblog.com/statistics/
I think it's telling that neither Biden nor Harris was willing to rule out court-packing at the presidential debates, and at this point I think they're right to leave it on the table! But, it really would mark the beginning of the end of the Supreme Court. It's easy to predict what would probably happen the next time power changed...
The correct answer to that question was obviously, "Congress makes the laws, including ones about the number of SC justices, not the President."
Hard to make that claim if you're not helping set policy.
But they are still an excellent source, and are about as good as it gets compared to most (supposed) non-partisan media these days.
Fwiw, I also believe their bias to be almost entirely unintentional, which is way more than can be said for most sites. For topical seminars, where authors might actually argue for a side, they do a decent job of getting various opinions from multiple sources, even if it's not always exactly balanced 50/50.
And they disclose all cases in which someone might be involved.
Like anything else, you still need to consider the source when reading it.
Just look at the commentary around overturning Chevron deference and non-delegation. Absolutely apocalyptic.
You still have Article III remedies in that case.
If the extreme version of non-delegation took hold, it would be the end of all rational regulation. Do you REALLY want Congress writing technical documents about effective isotropic radiated power? Or the shape of curb ramps?
I think it’s fair to ask how far a non-delegation principle should go. There is clearly a continuum between legislation and enforcement discretion. But does that mean we should have no non-delegation principle at all? Is there a definable middle ground between Congress leaving it to executive discretion address technical minutea and Congress delegating oversight over entire sections of the economy to unelected bodies that can serve as judge, jury, and executioner?
There are ways to maintain an administrative state without stuffing everything into the executive branch: https://www.theregreview.org/2019/12/18/rappaport-stronger-s...
https://www.law.cornell.edu/supct/html/90-1912.ZD.html
Any real solution will have to be legislated.
Yes, it is.
> There is no legal definition of "interface" or "implementation".
There is a legal definition of what is included, and what is excluded, from copyrightability, and (though its quite fuzzy, in large part because it was trying to incorporate a fuzzy judicial doctrine grounded in the First Amendment into the statute) what is included, and excluded, from "fair use" even if it otherwise violated copyright.
The courts job is very much to test existing concrete things against those definitions.
It's why silly (and inadequate) analogies emerge:
"Justice Clarence Thomas compared Google's copying of the Java APIs to a football team taking a rival's playbook."
"Close your honor, but let me expand on this further. Imagine instead that your opponent publishes their calls and they are regularly available to all individuals of the general public. However, while they may describe a call for going long, they do not give any specifics if the receiver starts from the left, center, right side of the field, how fast he should go, who should block for him, etc. They essentially are just assigning a call to a general concept of 'go long'. Now as a competitor team, I look through their publicly available calls and say "Hey, thats a good idea, we should have a call for 'go long' as well". However, in practice my team does start from the left, and then cut in the center of the field to receive the ball. This may, or may not be totally different then what my opponents choose to do when they call "go long" The additional benefit is if I transfer a new coach onto my team, he can use the call "go long" and even though the team accomplishes the goal, possibly by a different route, he can make the call to accomplish essentially the same thing."
Note: Not a huge sports guys, so perhaps my football analogy broke down a bit there, but hopefully you get the idea.
I'd have argued it's more like copyrighting doorknob placement (opposite hinge, at hand height) and operation (twisting) on doors vs. patenting a novel mechanism inside the doorknob.
A football playbook is more like the blueprints of the inside of the doorknob. Of course it's patentable if playbooks are patentable (I presume they are if considered works of choreography as in a dance).
As far as I can see (but please note that I am not even in the US, never mind a legal scholar) the relevant US law is 37 CFR § 202.1 about “Material not subject to copyright” (https://www.law.cornell.edu/cfr/text/37/202.1). This enumerates several cases that are explicitly excluded from copyright protection. One is “typeface as typeface”, which was apparently interpreted as described above in a litigated case (Eltra Corp. vs. Ringer).
An argument has certainly been made, though I can’t immediately find the original source, that this exclusion is justified because of the utilitarian nature of a typeface design: allowing one party to control all use of it would be against the public interest, because ultimately that principle could allow for all printed communication to become controlled.
It seems to me that APIs fulfil a similar purpose. They are not useful in themselves, lacking a corresponding implementation. They are, however, an essential basis for standardisation, interoperability and communication between practitioners.
Under 202.1(b) of the law cited above, another class of works excluded from copyright protection is “Ideas, plans, methods, systems, or devices, as distinguished from the particular manner in which they are expressed or described in a writing”. I wonder whether a similar argument about the utilitarian nature of APIs as a specification distinct from its implementation could be made based on that.
And that is one of several arguments Oracle made, that api interface is a stencil.
I think I would agree the law supports that argument from what I know about it, copyright is pretty broad. But at the same time, I think that is perverse and we should change the law.
Everybody loses: manufacturers, because they can't easily create competing products, and users, because they have to re-learn driving every time they change car brand.
Such a thing might be considered fair use if the second team's argument was they indeed copied the playbook because they had a recruited some players from the first team and keeping the names the same made it easier for them during practice. But for now the judge is suspicious that they've come up with this explanation after the fact.
It’s more likely the arstechniva writer failed to understand the point of the analogy.
Having just listen to the audio, it really annoyed me that Google’s lawyer kept saying “If we can’t copy this it would be impossible to write software.” And always left of the “in Java” part. Really fucking misleading.
Not in the EU where there is precedence with SAP/R3 saying APIs are not copyrightable.
Justice Breyer's QWERTY analogy was pretty good.
Also, Google's lawyer is supposed to supply that framework in oral and the brief.
I think the Justices were struggling a bit for analogies, but got the basic gist of the difference between implementing code and declarations.
The difficulty is that they have to think about this in terms of the relevant legal concept (merger) not the relevant technical concept (interoperability). You can copyright expressions of ideas, but not ideas themselves. Merger doctrine says you can’t copyright an expression of an idea if there is only one way to express the idea, because then the idea “merged” into the expression.
Do declarations merge into the idea of the implantation? In some sense clearly they don’t. If you have a set of functions that operate on an object, the convention in C is to put the object first and the parameters after. You “append, into this vector, this value.” In Common Lisp, it’s often reversed. You “append this value to this vector.” Both express the same idea—a command for appending a value to a vector—but there is a creative choice in the expression.
But you can think of the same idea at a lower level. “Calling a function named push to append an element to a vector where the first parameter is the vector and the second parameter is the element.” In that case, there is really one way to express that idea. Why would you think of the “idea” at such a low level? Because that’s what you’re doing when you’re interfacing with an actual API. The “idea” isn’t some abstract hypothetical function for appending, it’s the actual “push” function with parameters in the specific order.
The problem is that interoperability is not really something that goes to copyright-ability, but fair use, which comes after copyrightability. Dictating how you see the “idea” based on interoperability seems a bit like a phase ordering violation.
First, as colejohnson66 pointed out, that may be a derivative work. This will depend on how your transformer actually works.
I can't think of any way to do it that does not involve having access at run time to a copy of the copyrighted API. If that copy is part of the transformer, there is a good chance the transform is a derivative work.
If the transformer does not include the copyrighted API, instead getting information about it from some external source that the user must supply at run time such as via an input file describing the API using some sort of API description language then it is much less likely to be a derivative work. Well, at least if it somewhat general, working with several APIs described in that language rather than just working with the one particular copyrighted API.
Second, even if it is not a derivative work, the people who use it to make the shim might be infringing. Usually that would not be your problem (unless you do something like indemnify your users, which I'll assume you would not be insane enough to do).
However, you have to at least consider contributory infringement. If I infringe someone's copyright using tools I got from you, and those tools have no substantial use other than infringing copyright, you can be held liable along with me for the infringement.
As with the derivative work case, if you can make the transformer general purpose so that it can be used for transforming APIs that are not copyrighted too, you should be able to avoid contributory infringement.
I put myself in their shoes, if I had never looked at a line of code I couldn't even start to imagine what an API vs real code is. I'd probably think it's some made up concept that Google is using to save money and circumvent the law.
In the trial court.
You're probably thinking about the reproduction of the design document, not adherence to the specifications that document describes.
https://www.aia.org/articles/26591-understanding-the-scope-o...
To quote:
"""Under the AWCPA, an architectural work is statutorily defined as “the design of a building as embodied in any tangible medium of expression, including a building, architectural plans or drawings,” and “includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features,” such as common windows, doors, and other staple building components. Accordingly, per the definition, while individual standard features and architectural elements classifiable as ideas or concepts are not themselves copyrightable, an architect’s original combination or arrangement of such elements may be."""
My intuition says that it's... somewhere in-between?
People make a big deal about beautiful apis. Almost all apis are simply functional. The complexity lies in the implementation not the specification.
The unique food might be fish balls, but it also covers fish and chips, and a million other things that could be done with that API.
An API spec will not (necessarily) provide you with any internal implementation detail. Architectural diagrams/design specifications very likely will do.
If API is copyrightable, I'd love to be the first person to copyright the following API (and variations thereof):
If I get a nickel for every violation of that copyright...Is that not what blueprints do?
I'd say API is closer to a protocol or a contract than it is to architectural blueprint.
The blueprint would be communicated by mail or sneakernet.
You can copyright the contents of an email (indeed, I think they have an implicit copyright, don't they?), but you can't copyright the way in which emails in general are transmitted and exchange. (That would probably be a matter for patent.)
Patents don't require proof of copying and are always infringed, even with no knowledge.
If you wrote that API, and I wrote that exact same API without having seen yours, you wouldn't be able to sue me for copyright violation.
All I'd have to show in court is that there's a decent probability that I independently created the same API, at which point we'd both have full copyright over our own (identical) APIs, and more likely it would be ruled un-copyrightable due to being too trivial / not creative enough.
Ideally, we shouldn't even have to go to court to begin with.
Processes--and a good example is business processes like SOPs, etc.--have inputs and outputs.
An API is a name for that process, plus a description of the required inputs.
Can you copyright a name and a description of inputs for a process?
The description and name matter a lot for this, and are typically quite general.
Now, the question is, where do we draw the line: As per Oracle, there cannot be any other character that does what Harry Potter does.
You specifically need to argue that the API itself - the specific combination of types in a specific order, with a given set of Unicode or ASCII characters to identify it - is not copyrightable, not just that it's made up of uncopyrightable things. This is harder, because this same practice in other contexts (e.g. music, literature, and so on) is very much protectable. You need to argue that software is different.
Expert witnesses play a role in trials, they play no direct role in appeals where fact claims (to the extent they are reviewable at all, which is normally limited when, as in this case, there is a jury-trial-by-right, because otherwise you obviate the right to a jury trial, though its worth noting one of the issues in this case is that the Federal Circuit tossed aside the jury verdict using a standard which is not usually appropriate for review of fact questions in such a scenario) are decided by review of the trial record and, to the extent that the trial record is not sufficient, remand to the lower courts for further proceedings with legal guidance.
> Do we really expect judges in their 60s and 70s to understand basics of coding in order to come to the right conclusion?
We expect the parties to have developed their fact claims at trial or, failing that, to be able to explain to judges why any issues needing factual evidence are insufficiently developed in the trial evidence such that if they were critical it would require remand (and the reason better be something like "we were improperly prevented by the trial court from presenting evidence" or "this is a issue that somehow was allowed to be raised for the first time on appeal so we had no opportunity to present evidence on it at trial".)
Can substitute any field for "coding" above and come to the same conclusion.
Quickly getting up to speed on the terminology and issues of fields in which they have no formal training or first hand experience is a big part of the job description of being a justice.
Something like coding is so alien to a 70-80 year old it's basically incomprehensible. That won't be the case with us in 50 years when were that age because we understand it, but there will probably be other things at that point that are equally incomprehensible.
So if Oracle wins here, they will get fuxxed by Amazon?
Honestly, companies shouldn't be worried about the FANG's, because they will create alliances and largely refrain from suing one another. It's the never-ending, death-by-a-thousand-cuts onslaught from trolls that will murder small/medium outfits.
The east texas troll court is going to have a boom like it was 1840s California just to support all the litigation in our near future -- if this passes.
They reimplement MySQL for Aurora Serverless, but losing Aurora Serverless MySQL probably hurts Amazon less than losing their S3 clone hurts Oracle, and in any case MySQL is GPL and Amazon doesn't redistribute their implementation, so they are probably within the license anyway.
to use the client (boto) with a server you need to CLONE the api. even the headers which are named: "x-amz-server-side-encryption-customer-algorithm" I doubt that oracle would need to call that "x-amz-server-side-encryption-customer-algorithm"
If there are "copying" examples like this in the case, I am surprised it wasn't thrown out way earlier.
macOS and iOS (and indeed Apple itself) would not exist as we know them today, if at all, without very liberal cross pollination of APIs. In a parallel universe where APIs are copyrighted to the extent that Oracle wants, GNU would not exist. Konqueror and Safari could not use Microsoft's XMLHttpRequest(). The list goes on and on.
It’s also true that Safari couldn’t have used XMLHttpRequest unless Microsoft had licensed it. But that might have sped up the incorporation of an open standard alternative.
It would definitely have created a different history to the one we have now if APIs were assumed to be copyrighted, but it’s not reasonable to just assume that everything that has been based on them would not have been built some other way.
You mean something that implements all the APIs that the Bell Labs never licensed to anybody?
Which, of course, is completely false. All of them have many, many reimplementations of open APIs in their many layers of software. It's just that no one was stupid enough to copyright those APIs and try to sue someone else for implementing an API before.
Oracle's actions threaten to upend the common understanding of software ecosystems and throw everything into disarray.
The fear mongering about all sorts of cases in which might be affected (API, file formats) area under the assumption that the copyright holder has disallowed use which is the problem.
I suspect many will include provisions to allow it in their licenses otherwise the ecosystem for their products would shrink radically.
A little bit of both; the right is more inclined to strong, especially commercial, property rights even for things like copyright that are expressly, both Constitutionally and statutorily, bounded and contingent, while the left is (from a judicial perspective) generally more supportive of public interest limitations in general and fair use, which while statutorily enshrined was judicially created based on the First Amendment before being written into statute, in particular.
That said, its far from a perfect mapping and you'll often see splits that don't follow party lines in copyright, and the late Justice Ginsberg, while one of the more liberal justices on the court, was known to favor strong copyright.
in general, outside of perennial hotbutton issues that are permanently both highly politically salient, stable in partisan orientation, and at the focus of judicial selection, which copyright very much is not any of, divisions of the court aren't strongly determined by party even when they happen to align with party.
> Eagle-eyed readers may have noticed that the argument seemed to split along partisan lines. Kavanaugh, Thomas, Alito, and Gorsuch—all apparent Google skeptics—are the court's conservatives. Sotomayor, Breyer, and Kagan form the liberal wing. Chief Justice Roberts, who asked tough questions of both sides, has often been seen as the court's swing vote since the retirement of Justice Anthony Kennedy in 2018.
> Grimmelmann argues that this was a coincidence. The late liberal Justice Ruth Bader Ginsburg, for example, was known as a copyright hawk and could easily have sided with Oracle if she were still alive. Before his elevation to the Supreme Court, Justice Gorsuch authored at least one dovish opinion on copyright issues. In the 2014 Aereo decision, all of the court's liberals (along with two conservatives) held that Aereo had infringed copyright, while three other conservatives dissented.
Also based on that:
If it would why would API's be different?
If not how was it applied differently here?
What if in the above scenario, I added some extra chapters so the TOC has all the chapters the other book had, but the TOC is not a 1 for 1?
If my analogy is wrong, what am I not seeing?
I know as someone who writes software, API's not being copyrightable is preferable, but I would like to understand how the law sees it when dealing with real physicals works and understand if the law is applied the same when it moves to less concrete works.
If I want to support a Windows program on Linux I have no choice but to implement the Windows API. Likewise, if I want to interface with a program that stores data in S3, I have to replicate the S3 API.
That's why I think that there's no good analogy for software APIs among traditional media.
As far as the law goes, Google's argument is that because software APIs are arbitrary choices and necessary to be copied for interoperability that software APIs are noncopyrightable under section (b) of this statute. https://www.law.cornell.edu/uscode/text/17/102
A more apt analogy in the case of a reference manual is perhaps a competing manual that presented all the same maintenance information with different words, since they would achieve the same functional purpose with different expressive content.
Winning on fair use is not a disaster for Google. Google winning on fair use on procedural grounds, if the Court uses that as an excuse not to even answer the copyrightability question (the narrowest possible grounds for a Google victory), does not, contrary to the article's claim that "a Google win on a narrow procedural question would create a lot of legal uncertainty in the software industry", create any new legal uncertainty for the industry.
Is there any more independent media article describing what went on in the hearing?
If Java is also a standard, then laws applicable to all sorts of standards apply. And this could be a relatively good line of defense.
An API itself is not necessarily a standard. More importantly, a distinction would have to be made between a standard and its implementation.
Technical argument is whether API is procedural or textual. Procedures cannot be copyrighted only patented, including design patents and algorithm patents. But API itself is not procedural.
QWERTY sequence of letters is not necessarily copyrightable because it's not a document or result of machine processing of one and as such is a bad analogy.
An API actually has a source code and mechanically processed version. Oracle publishes it as documentation, which is probably copyrighted, and Java source code, which was copyrighted until OpenJDK.
The trick here is to define minimum creativity required for copyrightable work. If the API is narrow and trivial, you probably cannot copyright it anyway. There is additonal trouble when said API has no meaning without an implementation or is not published. Reverse engineering may be prohibited by a licence.
It's not enough to say that Lee is writing for a specialized audience while the Times caters to a more general audience. Even after accounting for that, Lee's coverage of the case is superior.
I suspect this has less to do with reporters than editors.
I mostly agree with you, but let's give credit where credit is due. Justice Sonia Sotomayor, from TFA:
> "[...] since 1992, [courts have said] the application-programming interface, of which the declaring code is a part, is not copyrightable. Implementing codes are. On that understanding, industries have built up around applications that know they can copy only what's necessary to run on the application, but they have to change everything else. That's what Google did here. That's why they took less than 1 percent of the Java code... Everybody knows that APIs, declaring codes, are not copyrightable. Implementing codes are. So please explain to me why we should now upend what the industry has viewed as the copyrightable elements, and has declared that some are methods of operation, and some are expressions. "
It seems to me that now is the time to start thinking about putting together a mass effort to get Congress to change copyright law, to establish clearly the semantic distinction between API and implementation, and to make it clear that the API part can be "copied" in the name of interoperability.
No, that's not an easy thing to accomplish, especially without armies of highly paid lobbyists, but I'm guessing that a few big companies - like cough Google cough might be interested in supporting such an effort.
« Any legislation dealing with either computer or photocopying issues enacted and based upon these recommendations should be subject to a process of periodic review. »
http://digital-law-online.info/CONTU/PDF/Chapter5.pdf
More generally, I feel that one of the main reasons the Supreme Court is such a powerful body nowadays, and why cases like this are considered so important, is because Congress has become so ineffectual. We have internalized the idea that the Supreme Court has the last word on every matter before it. But it emphatically does not. The Supreme Court is only the last word on constitutional cases. So many decisions - this one, certain decisions on gerrymandering - are completely overturnable by Congress.
I agree 100% with those sentiments.
No more so than statutory or any other cases; just as regulation can be changed by the executive and statute can be changed by the Congress, the Constitution can be amended by the process set out in the document itself.
The Supreme Court is the ultimate arbiter of the current state of the law, but no law that it applies, including the Constitution, is immutable.
Microsoft also supported Google in this case.
Well, what were they supposed to assume?
It's shameful that it's been 40 years since computer programs were explicitly protected in the US under copyright law, and this remains an unsettled question.
This situation is an extremely poor advertisement for the practice of passing vague laws and letting their boundaries be settled over time by court cases and precedent.
It's painful to have to listen to lawyers argue by an analogy between function declarations and Harry Potter chapter titles.
> 2) Also realize that the SCOTUS' job is not to decide what's right, but to decide what's legal given the constraints and allowances of both the Constitution and law. Even if a Justice were to feel like copywriting APIs would have terrible knock-on effects, she would be compelled to rule in favor of granting them if she believed that the laws passed by Congress required it.
So much of the arguments were specific to the Google/Oracle incident and not as much about the implications except for the thing about QWERTY and perhaps some vague analogies. I thought at the SC level it should always consider 'terrible knock-on effects' and act accordingly considering but not strictly bound to what came before.
As someone else in the comments said, I'm on Google's side here on the basis of this being the general industry assumption for a long time and interoperability generally being a good thing. On the other hand, does anyone here honestly believe that a complex API some team spent a lot of time designing isn't really a creative work?
I read somewhere that they were planning to but didn't due to SUN's hardware business. They should have sold that business off to another company and kept the software side of it.