Yep. This case was an existential threat to multitudes of industries and the assumptions they were built on.
The weird thing is it would of hurt Oracle as much as anyone. I have no clue how anyone w/any technical merit didn't understand that this was a footgun of the largest possible magnitude for them.
In my own mind, when CentOS died Oracle was saying you should move to "Oracle Unbreakable Linux"... which is a downstream clone of RHEL, just like CentOS was. Just one example of the hypocrisy.
It is uncontested that Oracle cloning RHEL is allowed by the license that RHEL is released under. They don't need a fair use ruling from the Supreme Court because they literally have a license that allows exactly what they did. The same could not be said for Google's actions in this case.
I had the opportunity once to talk to an IP lawyer for Oracle and brought this up. I specifically brought up the S3 compatibility of their cloud storage among other instances.
His reply was “without admitting anything specific, how do you know we haven’t purchased private licenses for anything you just mentioned?”
Plenty of good, cheap DACs built in China (e.g. Topping) have an HDMI-shaped plug (IIS) that supports PCM-over-not-HDMI which happens to be compatible with HDMI sources, but don't dare mention HDMI because they don't want to pull in an interlocking, price-gouging nonsense from the US entertainment industry.
So you don't quite need a license for the shape of the plug, but you do need to pretend it's not something that it is.
I'm unfamiliar with the legal system (judicial system?).
I had thought that the jury's findings were final.
Am I understanding correctly that the case still went to the Supreme Court of the US, and now that court finds in favor of Google.
What happens after this, more appeals or is this like a proper static const readonly final?
In the US, the Supreme Court is the static const readonly final. It's over. There is literally no route of appeal or any way Oracle can keep this case going without a whole new lawsuit. The Supreme Court can elect to make a ruling and then send it back to a smaller court _if they choose_ for final assessment, but they did not do that here, making this ruling definitive.
Oracle (or some other company) can bring another case. It has to be different enough that it isn't immediately struck down based on precedent, but similar enough that a ruling would require appealing to the Supreme Court and force them to overturn or invalidate the Oracle v Google precedent. The chance of this happening is negligible, but this is basically the conservative plan for getting the Supreme Court to overturn the Roe v Wade precedent.
Sometimes SCOTUS explicitly suggests in an opinion that it's time to overrule precedent but they don't want to do so in that case.
Most recently (that I'm aware of) is South Dakota v Wayfair. SCOTUS previously held that states couldn't impose sales tax on out-of-state companies. Subsequently, many states imposed "use taxes" which are essentially sales taxes paid by consumers on purchases they didn't pay sales tax already to get around this. Colorado passed a law which required out-of-state companies to essentially provide sales tax computation information to Colorado (but not sales tax itself), and Kennedy noted in his concurrence that maybe it was time to revisit the sales tax precedent. So South Dakota went ahead and passed a sales tax on out-of-state companies in direct violation of previous precedent, and SCOTUS promptly overturned that precedent when it heard the case.
Well, more precisely: they definitively ruled that (a) a judge can decide whether a use is fair use and (b that this is fair use. Then they remanded the case to lower courts to decide what that means in terms of what happens next in this case.
Generally, the Supreme Court finds narrowly on a specific point of friction in the case of a lesser court, answers the question, and kicks it back to that court, as a final answer for that very specific thing.
The point in this case was, can Oracle overturn the "phone books cannot be Copyrighted" concept baked into tech law by the IBM v Compaq BIOS case. Seems the Supreme Court finally told Oracle the collection of method signatures from the Java base API are, indeed, a phone book.
You are just totally wrong, the majority did not issue a ruling on copyrightability. It just said that even if the API is copyrightable Google's actions were "fair use," which is a legal doctrine allowing some use of copyrighted works without a license.
A jury's findings are final only in determining the facts of the case. The actual legal implications of those facts can still be appealed, reviewed, and modified.
I think the question about overturning the jury is directly addressed in the linked PDF, whose Syllabus is surprisingly easy to read:
> Re- viewing courts should appropriately defer to the jury’s findings of un- derlying facts, but the ultimate question whether those facts amount to a fair use is a legal question for judges to decide de novo. This approach does not violate the Seventh Amendment’s prohibition on courts reexamining facts tried by a jury, because the ultimate question here is one of law, not fact. The “right of trial by jury” does not include the right to have a jury resolve a fair use defense.
I'm not a lawyer so I don't know exactly what this means, other than the SCOTUS saying that it can override the jury decision.
You understand correctly. The jury's decision isn't final (and I thought this was ruled on by a judge directly, instead of a jury, but I could be wrong). You can appeal pretty much any case to a higher court. I don't know the order, but it's not uncommon for cases to appeal to a higher court several times. I.e. a verdict is rendered in a county court; you don't like it, so you appeal to the state court. State court still doesn't give the decision you want, so you appeal to the Supreme Court.
It's worth noting that the higher court can reject your appeal. You're not entitled to be seen by the higher court, and if you can't come up with good grounds for why the lower court was wrong, the appeal will be rejected. The Supreme Court rejects a fair number of appeals (I think the majority of cases).
This is final though. There is no higher court than the Supreme Court to appeal to. At this point, the only reason it would change is if the laws change, or the Supreme Court reverses their decision later. It's extremely rare that they whole-hog reverse a precedent that they set, though.
This does not match my understanding of the situation (though note: I am not a lawyer; take everything that follows with a grain of salt).
My understanding is that a jury's primary task of deciding on the facts is final. The facts in a case like this seem to me to be things like deciding whether Oracle in fact holds the copyright, and whether Google's copy of the API is sufficiently similar for that copyright to apply to Google's copy.
Now as far as appeals go, you can appeal whether the trial was done properly, such that the jury was able to do its fact-finding job correctly. You can appeal what was then decided based on those facts (e.g. sentencing). You can appeal meta-questions, like whether a particular decision is a "finding of fact" or not to start with.
The question of whether "fair use" is the sort of thing that is decided by judge or jury is apparently somewhat contentious in this case; I just found https://www.law.uw.edu/wlr/print-edition/print-edition/vol-9... describing some of the issues there. Today's decision refers to this as well: it's (c) under "Held":
> (c) The fair use question is a mixed question of fact and law. Re- viewing courts should appropriately defer to the jury’s findings of un- derlying facts, but the ultimate question whether those facts amount to a fair use is a legal question for judges to decide de novo. This ap- proach does not violate the Seventh Amendment’s prohibition on courts reexamining facts tried by a jury, because the ultimate question here is one of law, not fact. The “right of trial by jury” does not include the right to have a jury resolve a fair use defense. Pp. 18–21.
which sure sounds like the Supreme Court effectively decided that the final determination of whether a use is "fair use" or not should be made by a judge, not a jury. Then they proceed to make that determination in this case in holding (d).
> The jury's decision isn't final (and I thought this was ruled on by a judge directly, instead of a jury, but I could be wrong).
The idealized rule is that the jury is the final arbitrator of matters of fact, while judges (and appeal courts) decide matters of law. Ideals don't match reality cleanly, especially on matters like fair use which is "mixed fact and law." But additionally, you can sometimes appeal matters of fact by arguing that no reasonable jury could have reached the facts as it did (these are very rare, as I understand it, except in situations where mixed fact/law comes into play).
Some other points you're missing. First, you have to appeal on particular failures of law; you can't just appeal that you don't like the decision. In particular, if you try to appeal past the appeal court to a higher court, you can only make arguments that you made to the appeal court.
Another important thing is that appeal courts can push the case back down to the lower court to redecide based on clarifying law. That's what happened here, essentially. Google won on the trial, Oracle appealed saying that the judge incorrectly ruled that the API wasn't copyrightable (and the appeal court agreed with Oracle), which told the lower court to try it again with the correct ruling on API copyrightable. Google tried to appeal SCOTUS, who refused to hear it. Lower court had another jury trial, which found Google had fair use. Oracle appealed again to appeals court, which found that the jury couldn't have thought it fair use. Google appealed to SCOTUS, which just now disagreed with the appeal court.
The latter. Once the Supreme Court rules, that is the law of the land, unless Congress/President pass a new law substantially changing things, which could then have challenges go back through the judicial process.
I didn't understand that either, but I found a good explanation on page 2:
"The fair use question is a mixed question of fact and law. Reviewing courts should appropriately defer to the jury’s findings of underlying facts, but the ultimate question whether those facts amount to a fair use is a legal question for judges to decide de novo. This approach does not violate the Seventh Amendment’s prohibition on courts reexamining facts tried by a jury, because the ultimate question here is one of law, not fact. The “right of trial by jury” does not include the right to have a jury resolve a fair use defense."
They could file a new lawsuit but this specific complaint is effectively over.
Considering that the votes were not close, I don’t think Oracle would try again. Likely they will pursue a substantially different strategy to try and extort Google.
Realistically, both Google and Oracle are 800lb gorillas and the battle will continue via lobbying legistlators, if not court appeals. It's very hard to believe Oracle would just keel over and give up.
Congress can't make retroactive laws, this case is basically done and Google won't have to pay for their use of Java that occured/occurs prior to the passing of a new law. Oracle doesn't have a vested interest in ruining copyright for everyone in the future if they can't get past damages out of it. That would hurt themselves as much as it would hurt everyone else.
I'm pretty confident that Oracle rolls over on this issue permanently.
As others has said elsewhere, the jury rules on facts and judges rules on law. SCOTUS are judges. Under one interpretation of law, the most recent jury findings of fact held that Google infringed.
SCOTUS altered the interpretation of the law, thus removing the legal justification for why the jury found infringement. Since they did not alter any findings of fact (they did not need to) this ruling is legally fine.
A jury can say you definitely did X, that court's judge can say X is illegal, and SCOTUS can then declare X is legal so it doesn't matter anymore if you did X.
I'm so relieved. This could have forced such dramatic changes in how we develop software. And any other decision would have been a crippling blow to FLOS software.
Now if we only could get the SC to invalidate software patents in general.
This is a large scale defeat of the GPL and dual licensing, so I'm not sure how this could be anything but a sad day for sustainable open source development.
If you're big enough and have enough lawyers, there's no reason to license software you want to build on.
That's a different situation though. You're then distributing something intended to link with readline -- not just implementing its API yourself but using its entire original implementation.
What you could perhaps do is create your own implementation of the readline API distributed under a different license and then claim your program is intended to link against that, but how would you claim that if no such implementation exists? Whereas if you have to write your own readline implementation in order to use it then you still end up with a large incentive to avoid that by releasing your work under the GPL instead.
Google had the option to use the OpenJDK and make Android a GPL-based platform. They did not want to. They could've, and tried to, negotiate a separate license, but simply decided to copy what they wanted instead, relying on their legal team to protect them.
Dual licensing is a common reason to GPL your code: Letting people have and use the source under restricted terms, and paying for an enterprise license otherwise.
If Google can steal the code from the GPL version and then just not obey the license or pay for an enterprise license, dual licensing is dead and no business will open source their code under a dual licensing model.
Google did not steal code. Dual licensing is not a reason but a practice. Unlicensed use of code is still unlicensed and punishable by the terms of the license. Dual licensing still exists and will continue existing.
Solely because the GPL may now be so weak nobody is worried about enforcement. If Google can so blatantly create a monopoly scale business by ripping off something instead of complying with the license or licensing it separately, there is no teeth to the GPL at all, and releasing your business' code under GPL is an existential risk.
They might use the GPL software, but feel no compunction to either open source their own modifications nor pay for an enterprise license.
Except that Google only copied the API, so how does that apply to anyone doing more than that?
For that matter, how does that have anything to do with the GPL at all? If you distribute your software under a proprietary license instead, how does that affect whether anyone can reimplement your API? If somebody wants your implementation then they get it under your license. If all they want is their own implementation of your API then your license doesn't matter, does it?
From a statutory standpoint, there is no difference between the API and the code in general, which the dissenting opinion highlights. So if fair use is granted for theft of copylefted code in a non-copyleft manner, it doesn't matter heavily whether that was "declaring code" or "implementing code".
This ruling doesn't change that APIs are copyrightable code.
The dissenting opinion is stupid. Thomas may be a bad justice, but he has even less of a clue about software devolopment. Of course there is a difference between an API and the code in general.
This decision sidestepped the question of whether APIs are copyrightable or not by declaring that this particular instance was fair use.
Reimplementing interfaces has always been fair-use, they are definitions. Re-Implementation of these interfaces has been a cornerstone of FOSS since its very beginning.
> So if fair use is granted for theft of copylefted code in a non-copyleft manner, it doesn't matter heavily whether that was "declaring code" or "implementing code".
I don't think these words mean what you think they mean. There was no theft and of course there is a difference between declaring code and implementing code.
> This decision sidestepped the question of whether APIs are copyrightable or not by declaring that this particular instance was fair use.
This is incorrect, before fair use was tested, copyrightability was established, which is why the fair use defense, which is an exemption for copyright violation, was then determined. If you followed the various appeals and rulings this case entailed, you'd have to be aware of this.
APIs are copyrightable, as this case has determined, but now the Supreme Court has also thrown out any reasonable definition of what is and isn't fair use.
Ninth Circuit courts held APIs weren't copyrightable.
The Federal Circuit (which only had jurisdiction because of the thrown out patent claims) held that they were copyrightable. The majority of SCOTUS here explicitly said they weren't deciding copyright of APIs. Instead they looked at both cases and said: "either it isn't copyrightable, but even if it is copyrightable, that this is fair use." Either way, Oracle loses. Arguing in the alternative is a common legal pattern, as is ruling on the narrowest possible ground.
Generally when a circuit court makes a ruling, it's only "binding" precedent on subsidiary courts within that same circuit. The federal circuit is weird though, as it doesn't have a geographical jurisdiction, instead it has a subject matter jurisdiction. If a case has patent claims (or a few other things), an appeal gets routed there.
So, effectively, APIs are copyrightable if there is a linked patent claim in the same lawsuit.
Courts can certainly use the Federal Circuit ruling as "persuasive" precedent, and rule the same way, but it's not binding, and it's not settled law.
> So, effectively, APIs are copyrightable if there is a linked patent claim in the same lawsuit.
I suspect the Supreme Court would not be happy if a pattern develops where companies include spurious patent claims in order to get their copyright case heard by the Federal Circuit instead of one of the other circuits. They won't want another mess like this case, and if the Federal Circuit again rules in favor of API copyright and against fair use, I would expect the Supreme Court to rule on the API copyright question directly rather than merely clarify the bounds of fair use as in this case.
> APIs are copyrightable, as this case has determined
The supreme court explicitly refused to rule on whether code was copyrightable or not.
The lower courts made conflicting rulings on that question. But the supreme court itself only assumed, for the safe of argument, that code was copyrightable, and did not rule on that question itself.
> "Google copied approximately 11,500 lines of declaring code from the API, which amounts to virtually all the declaring code needed to call up hundreds of different tasks. Those 11,500 lines, however, are only 0.4 percent of the entire API at issue, which consists of 2.86 million total lines. In considering “the amount and substantiality of the portion used” in this case, the 11,500 lines of code should be viewed as one small part of the considerably greater whole. As part of an interface, the copied lines of code are inextricably bound to other lines of code that are accessed by programmers. Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment."
Sanity prevailed! This judgment could have had devastating consequences and turned software development into a copyright nightmare.
Question from a layman: Does "interoperability" as a concept have any legal relevance here? Like focusing on programmer skills seems kind of beside the point, which is really for two pieces of software to be able to interoperate.
Also speaking as a layman, but yes. Fair use has, as one of its four factors, the purpose and character of the use, to which interoperability is of definite relevance. It explains -why- the API was reused, even if the internals are entirely different. Not because it saved Google work, or there was some sort of competitive edge against Java SE to be gained by doing so.
The decision talks about "interoperability" as a general concept, but neither the DMCA nor reverse engineering is at all relevant to its legal reasoning.
Interoperability does have legal relevance, but because of programmer skills. Part of the fair use analysis turns on the legitimate goal of allowing programmers to use their skills in Java on the new platform.
There's already Ninth Circuit precedent in favor of it. For example, Sony tried to sue two commercial PlayStation emulator developers and the Ninth rejected the lawsuit on all counts (and one of those cases is even cited in this opinion).
The court has to talk about programmer skills because Android (at least, the versions before they switched to OpenJDK) was not entirely source- or binary-compatible with Java SE programs. In fact, the reason why they couldn't license Java SE was that Sun insisted on Android being locked into compatibility in the first place. So this entirely represents an expansion of existing fair use precedent: now, not only does fair use apply to full reimplementations for the sake of interoperability, but also partial reimplementations made for the sake of programmer convenience.
Yes, interoperability is relevant, because it affects the necessity of copying that particular code rather than making one's own substitute, which in turn affects fair use.
But Google's lawyers (inexplicably, in my opinion) failed to talk much about the fact that many Java libraries are interoperable between Android and Oracle Java, leaving the courts to think only in terms of full applications which are not interoperable. Thus the courts have treated this case as if the only benefit to Android's reuse of Java was programmer familiarity.
Thankfully, Google won anyway, so any defendant in a future case who can make a better interoperability argument will be in an even stronger position.
Edit: For example, in the Federal Circuit ruling that the Supreme Court just overruled, they complain: "Indeed, given the record evidence that Google designed Android so that it would not be compatible with the Java platform, or the JVM specifically, we find Google's interoperability argument confusing. [..Google] points to no Java apps that either pre-dated or post-dated Android that could run on the Android platform." [1]
Google didn't argue on interoperability since that would have torpedoed their core arguments that Android is a transformative work creating a new market outside of, and different from, Sun Java Standard Edition.
To argue interoperability Google would have needed to copy the entire JAVA SE API.
The key difference is that Java SE (designed for desktops) API was considered by Google mostly not required on smartphone/mobile devices envisaged for Android. Sun would only licence Java SE complete (Sun was the one wanting complete interoperability).
To the extent the concept of interoperability enters into it, it was on the human side; the arguments were about leveraging existing programmer knowledge to the extent that Android's requirements were shared with and common to Java SE.
> To argue interoperability Google would have needed to copy the entire JAVA SE API.
Only if Google wanted to argue interoperability as defined by Sun/Oracle. I've never seen a coherent argument why Sun's TCK should be considered the sole authority on what degree of interoperability should have legal significance in this copyright case, particularly given that Sun's TCK was part of their trademark licensing program.
And there are obvious reasons why a court would shy away from letting something like Sun's TCK be used as part of a significant legal test; for example, it's really awkward for legal purposes to define something as copyright infringement while it's a work in progress, but it suddenly becomes okay as soon as it attains the status of being 100% compatible and bug-free. It's also not clear how the law could reasonably handle a definition of interoperability that Sun/Oracle can unilaterally make into a moving target and add arbitrary requirements to.
It may be a poor metric, but it's not like we have any other metrics to measure code by.
Well, "dollars / year", if you work in an industry where you can directly A-B test against revenue, but I think most of us are happiest not knowing whether our particular lines of code are EV-positive.
we absolutely have other metrics. Features, Stories, Ease-of-use, Dev Friendly, Qualitive Value. LoC is simply broadcasting how complex either A) the problem is (fair) or B) how you've made it (not fair) - most fall into the latter camp.
Code bases like kubernetes come to mind for LoC far exceeding its value. Code bases like Quake3 come to mind for LoC that provide tremendous value. Every line is an explicit decision to improve the code or make it worse.
Refactoring a system to be generic and re-usable, for example, would reduce LoC yet provide tremendous value. If I were her manager, would I deduct points for -2000 LoC? Would I praise her for taking copy-pasta and making a pattern? I know which I'd choose.
I suppose it makes sense from the perspective of copyright law, which protects artifacts. After all, one could say the same for quoting from a famous literary work .."ha now they're valuing literature in terms of number of words of prose!"
The dissent clearly highlights the fallacy of the ruling, where it discussed the importance of the "heart" of the work, rather than the portion of exact lines copied.
Aka, that you could clone Harry Potter's plot, characters, and story while not copying each word of the book verbatim, and it still be a copy of Harry Potter.
>Aka, that you could clone Harry Potter's plot, characters, and story while not copying each word of the book verbatim, and it still be a copy of Harry Potter.
Would that be a copyright infringement? Probably just trademark infringement at that point?
Copyright attaches to the actual text (illustrations, etc; whatever is “fixed in a tangible form”), not the ideas.
You could write a story about a boy of humble origins who is whisked off to a special school, discovers he’s special, and fights evil. There aren’t that many original plots, after all....
You’ll only get into trouble if the main character is called Harry Potter of 10 Privett Drive, where he resides with his mother’s sister and her awful family, and he later attends Hogwarts, etc.
Copyright covers derivative works. If a story is plainly the same with names changed, the original copyright extends to it. This can be applied to the point of absurdity in music copyrights.
The derivative work has to be literally derived from the original "such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." (per 17 USC 101). https://www.law.cornell.edu/uscode/text/17/101
The merger and scenes a faire doctrine permit lots of overlap in terms of themes, tropes and set dressing. You could certainly write a coming-of-age story set in a magical boarding school; indeed, Harry Potter is neither the first nor the last such novel. One of the classic cases is Walker v. Time Life. The two works, which were found to be non-infringing, both start with a double murder of two cops (one Black, one white) in the South Bronx, both feature demoralized Irish-American cops, and both have similar tropes (rats, cop-talk, etc). A reviewer might reasonably describe it as derivative (and a few did, I think), but not legally so.
What you probably couldn't do is publish the (non-parodic) story of Perry Hotter and his substantially-similar adventures at Pigworts, though that's also absolutely spoiling for a trademark fight.
Music gets weird because it a) seems like there are a lot of possible note sequences but b) there aren't really.
It’s generally not trademark infringement to refer to the actual thing the trademark refers to (”nominative use”).
This would actually be a claim unlikely to succeed unless you are intentionally claiming that are writing the true original Harry Potter stories.
To use your Harry Potter comparison, it would be like asserting that Magic Boy Adventures violates Harry Potter's copyright because one of the characters in MBA was similar to the Neville Longbottom.
Or in other words, a tiny fraction of the original work would essentially be allowed to monopolize the entire space of works involving magical kids going to school.
(And this is why Justice Thomas is widely regarded as the least competent justice of at least the past half century.)
Incorrect, because as Justice Thomas states, the "heart" of the work being copied is at issue, not a given percentage. Neville Longbottom is obviously not the "heart" of what a Harry Potter book is.
Presumably the issue would be if one wrote a book substantially about the same character as Harry Potter who went through the same plot events in significant detail, but only 0.4% of the sentences were identical and the main character's name was Barry.
Incorrect, because the "heart" of the work is not being copied, and therefore, the entirety of Justice Thomas' dissenting opinion is just pointless blathering.
Thomas would allow copyright on code regardless of any creativity. This would destroy the software industry. Anyone who is first in time would monopolize entire swaths of software functionality.
And that is what he wants. Thomas is an ideologue, and his sole goal in allowing the copyrighting of code is to destroy the tech industry, which he views as hostile to Republicans. You can see it in the logic of his dissent, which would require the court to override decades of settled case law all supporting the proposition that code and other functional expression. In order to justify his nonsensical arguments, Thomas is forced to come up with an entirely new category of code that is not supported by legislative history or judicial history. Thomas' only justification for this category is...that it's "not fair" to a multi-billion dollar company that the non-copyrightable portions of their code were copied by another corporation. Pity the poor multi-billion dollar corporation, they just can't ever get a break.
Even he notes that his dissent is nonsensical when he admits "declaring code is 'inherently bound together with uncopyrightable ideas.'
Now? I've personally heard quantities of code measured in "lines of code" (or, thousands of lines of code-- "K-LOCs") going back to the mid-90's. An acquaintance who worked for IBM in the 70's said it dates back at least that far (measuring developer productivity in the "K-LOCs" they produce).
It's been going on since the 1960s (maybe longer).
Personally, I think the best code is the code I don't write.
A significant part of my refactoring, is removing as much code as possible, by tweaking algorithms, deriving common base classes, and removing unused code branches.
Every line of code is a potential bug. The less code, the less bugs.
Number of lines is actually a pretty good (though imperfect) measure of how difficult a code base is to work with, which is why many developers are delighted by the opportunity to delete code.
I'm glad about this outcome, because I agree the other outcome would have had a devastating effect on software development.
I also appreciate this fair use argument, especially when you point out the code in question was 0.4% of the entire API.
Still, I'll always struggle with the idea that "the amount and substantiality of the portion used" when copying an interface is comparable to copying an implementation. The interface is, intellectually, the substantially heavier, "bigger picture" component of the API than the implementation. In my view they are apples and oranges.
So, I'm glad this was the outcome. But I'll always feel like there was something wrong with Googe taking the Java SE interfaces and using them like they did, gratis.
I can recommend focusing on Justice Thomas' dissent, which contains a section related to this topic. I believe Justice Thomas agrees with your assessment, and he raises concern that the SCOTUS has essentially made APIs practically uncopyrightable (in that they will 100% of the time find that it's fair-use to use them). I actually disagree with him, but only in one sub-category: I think a SCOTUS ruling would be harder to predict in a situation where someone 100% copied an API that had no implementation. That removes the mitigating factor of what portion of the work was used.
Ironically the most protected APIs may be the ones nobody implements.
Calling someone stupid or foolish is calling names in the sense that the site guidelines use that term. They ask you to omit all that from your posts to HN. Would you please review https://news.ycombinator.com/newsguidelines.html and stick to the rules?
That’s a good thing. The ability to copy an API allows more competition, helps improve services as others provide similar functionality, and forces improvement because it becomes easier to migrate from one service to another.
One thing I do see happening is that sensitive and expensive to develop algorithm internals may be prevented from leaking into APIs. I, again, don’t see this as anything other than a win for devs. An API is fundamentally used to get stuff done, if a developer doesn’t need to know the implementation details I overall think this is a win for the developer using the API.
I think you mean “If you want your API copyrightable, don't make it public”, not “If you want your API non copyrightable, don't make it public”
Now, how do you let third parties program against that non-public API? Would only showing it to licensees be a legal way to do that?
If so, and if the API becomes popular, I don’t see how to prevent those licensees from leaking the API to the world, say through small code snippets on Stack Overflow.
I believe Justice Thomas agrees with your assessment, and he raises concern that the SCOTUS has essentially made APIs practically uncopyrightable (in that they will 100% of the time find that it's fair-use to use them).
That would seem a reasonable outcome, for much the same reason that copyright not protecting the appearance of fonts under US law is reasonable. Yes, it is overriding copyright protection for a creative work that would otherwise apply. However, it does so because a greater good is served, in this case by ensuring that interoperability cannot be encumbered, something which (as the majority opinion alludes) goes against the very purpose of copyright under US law.
The main legal basis for the majority opinion seems to be fair use, so isn't the system operating as intended? The legislators set out a principle of fair use in statute. The court applied that principle in the context of this specific case.
Had Justice Thomas' opinion prevailed, most everything within POSIX was originally copyright by AT&T USL as part of System V, and would be owned by the current holders of that intellectual property.
Anyone using fork(), stat(), open(), or other basic parts of the UNIX development environment would be in violation.
Those copyrights were purchased by Novell at some point, and I believe ended up with Attachmate.
One would think that the C Programming Language is also covered by copyright via the K&R books, which would put anyone using printf() in the same position.
Absolutely, but courts are supposed to interpret the law, not rule whichever way avoids nightmare scenarios.
The risk of going too far in that direction (and this is by no means the first case in which SCOTUS c̶l̶e̶a̶r̶l̶y̶ may have rationalized a decision for pragmatic reasons) is that it makes the court more corruptible. I am glad the majority ruled this way, because I agree that it leads to a better outcome in this case. On the other hand, any departure from a pure interpretation of the law is very dangerous, because it normalizes the more-corruptible mode of operation, and that can lead to another kind of "nightmare scenario".
You would certainly hope so, but that logic just passes the responsibility to interpret law faithfully onto the lower courts, which are also perhaps more easily corrupted.
> On the other hand, any departure from a pure interpretation of the law is very dangerous
You should read the law in question. This would be Section 107 of the Copyright Act, which defines "fair use". It's extremely vague and is best interpreted as a set of considerations that the courts should take into account so that they can handle situations like this one on a case by case basis. If Congress wanted to be more prescriptive, they could (ETA: and if they become unhappy with the courts' decisions they still can in the future), but I think that would lead to worse outcomes.
The law also states that copyright's purpose is to stimulate progress of the arts, and that's why fair use is possible. Interpreting the law also means establishing the limits of fair use.
No, fair use is possible because of the First Amendment. While it is now adopted in statute, the statute was codifying a Constitutional limit that courts previously found in copyright protection grounded in the First Amendment, not the Copyright Clause.
But, still, yes, determining the scope and applicability of fair use is part of applying the law.
Ah, I had heard of the first amendment thing but I thought it was why government work must be in the public domain (i.e. putting it under copyright would prevent reproduction and therefore infringe first amendment rights).
There's a line in here that says "In the 1990s, Oracle created a programming language called Java." that is funny on its face, but is written this way for the exact reason you're talking about.
Substantiality was only one factor in the decision. There were lots of others, such as raison d'être of copyright, "promoting the progress of science and art". Because allowing copying of APIs is more important to the "progress of science and art" than the economic impact on the creator of the API, APIs are thusly not copyrightable.
This is NOT what the Court found. At the very top of the Opinion, it says "we assume, for argument’s sake, that the material was copyrightable. But we hold that the copying here at issue nonetheless constituted a fair use."
It's one thing to steal algorithms but for interoperability to remain possible it is necessary for API to remain "fair use". I can't agree with you that this is a bad thing for them to copy Java SE interfaces.
I understand we can’t have copyrights on APIs, but something about it just doesn't feel "fair" to me, though.
Fair use makes sense to me when you're talking about the table of contents of a book. If I take the table of contents of a famous novel and write my own chapters, it makes sense to me that the owners of that book shouldn't be able to sue me. No one is going to read my book instead of Faulkner's. There's no equivalency there.
If I take an API (the table of contents equivalent of software), that's seems totally different, if not the opposite really: the interface is what matters, and the implementation is secondary. If you apply the analogy to a novel, it's as if I took the table of contents of a famous novel, write my own chapters, and it'll be equivalent to the famous novel. My chapters could be slightly "worse", but readers wouldn't necessarily notice a difference between my version or Faulkner's.
> the interface is what matters, and the implementation is secondary.
But that's kind-of the point IMO - if we take a free-market approach to this, copying (or sort of "standardizing" onto) an API allows for more innovation, since it's not a prohibitive up-front cost to switching the implementation. We don't copyright (or I guess patent, and I know they're different) the user interface of a fridge. Any fridge can have 2 doors and a slide-out freezer, but it's the actual implementation that would matter to a user - how energy-efficient it is, how cold it can get, extra conveniences (maybe akin to API extensions) like a water/ice dispenser that still can be "copied"/used by other fridges. And I'm sure that maybe those "interfaces" were patented originally, but it seems absurd now that they're so commonplace to restrict who can implement them.
If you copied the table of contents of a famous book and happened to make the book significantly better then there's a chance people would read your book instead of the famous one. Should the original owner be allowed to sue you in that case?
I think the same applies for APIs. It's only taking away users from the original implementation if the new one is better.
> especially when you point out the code in question was 0.4% of the entire API.
Honestly, the fact that it's 0.4% is a BS heuristic. What if they spent a year and all they did was refactor the code so that codebase was 1.43 million lines instead of 2.86? Would that mean these lines of code are 2x as powerful?
Lines of code is an indicative heuristic, but not a deterministic one.
I think they took "line" to refer to a Java method signature/prototype, so even if a method signature has each parameter wrapped to its own physical line on-disk, the whole method declaration still counts as "one line".
Probably not? The crux of the opinion seems to grant fair use because it enabled a "new and transformative use," which is a box that a different line of encyclopedias doesn't seem to check.
Two distinctions come to mind: the encyclopedia text doesn't have a "functional purpose" in the same way as the implementation of an API does, and thus there isn't a market of users who have pre-existing skills with encyclopedia entries that they could put to use if the entries were copied to another platform. In my non-lawyerly reading of the first bit of the decision it seemed they leaned on those aspects quite a bit.
Certainly, the fact that competing encyclopedias exist, and have for hundreds of years, with > 99% identical entry names (but of course, substantively different content), and that predicated not on any given invention or IP but rather the common use English language, would, I think, make the judges rather reluctant to rule differently even should there be 100% match in entries.
I think all entry names in encyclopaedia would fall under collection of facts that is not copyrightable... Same goes for recipes. I don't see how list of words existing and being used would qualify as work under USA copy-right. The entries themselves though are likely in many cases protected, but likely not all.
It's also good that Breyer wrote this opinion, given that he was one of the two judges who dissented in Eldred v. Ashcroft almost 20 years ago[1]. Lessig called that opinion "perhaps the best opinion [Breyer] has ever written"[2] in his retrospective on the case.
> "Google copied approximately 11,500 lines of declaring code from the API, which amounts to virtually all the declaring code needed to call up hundreds of different tasks. Those 11,500 lines, however, are only 0.4 percent of the entire API at issue, which consists of 2.86 million total lines. In considering “the amount and substantiality of the portion used” in this case, the 11,500 lines of code should be viewed as one small part of the considerably greater whole. As part of an interface, the copied lines of code are inextricably bound to other lines of code that are accessed by programmers. Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment."
> Sanity prevailed! This judgment could have had devastating consequences and turned software development into a copyright nightmare.
This judgment is the equivalent of someone taking a movie script, shooting a new movie out of it without changing a word, and the court declaring this "fair use" of the script.
Software development wouldn't have turned into a nightmare unless you decide to steal a platform. Which most people don't need to do in order to do their work.
Maybe it is the same as using a similar plot, but with 0.4% of code lines being the same I think the analogy doesn’t carry through to using a script word for word.
I don't think it's fair to compare a programming interface, which is more analogous to designing something like the plumbing architecture for a house, to a movie script, which is art. Yes, a well-written API can be considered art, but with the plumbing analogy, a "copy-cat" would just be making sure the same pipes are connected to the toilets in the same positions. What's going on under behind the dry-wall wouldn't matter.
Movie scripts and APIs aren't really comparable as you have presented them.
Not a great analogy. People aren't looking to make "interoperable movies". But let's play that out for a moment. Would a copy of star wars with different actors, different scenic design, different music be much of a salable product? I don't think so.
While I think it would be GREAT to see what Nick Nolte (Lucas was considering him) would have done with Han Solo over the wooden Harrison Ford, I'm not sure I care enough to sit through it all again to find out. Blech.
I think you're also ignoring the "transformative" clause written into the fair use doctrine in the US.
...the extent to which the use is transformative. In the 1994 decision Campbell v. Acuff-Rose Music Inc,[13] the U.S. Supreme Court held that when the purpose of the use is transformative ... is more likely to favor fair use.
> This judgment is the equivalent of someone taking a movie script, shooting a new movie out of it without changing a word, and the court declaring this "fair use" of the script.
Ethics aside, as a viewer, it'd be kind of cool if this were a thing. Small-time movie makers might like it too.
Your example is more like rewriting GCC in Rust and then claiming it no longer needs to be GPL. What Google did would be like writing a set of stock superhero character descriptions and then releasing them under a Creative Commons license so that other movie writers could use them in their movies.
Seems appropriate to create a burner account when you are this wrong and you know it. This is why many of us would like an easy ability to block greens.
An alternative take, which I'm sure won't be popular, is that now, with an interpretation taken to the extreme, a megаcorporation can basically steal your (let's say a small startup's) platform (in case you refuse to sell it for ethical or some other reasons), by re-implementing it and investing much more resources which you don't have, to make it more attractive to customers.
I'm ok with either decision, but, depending on how this precedent going to be interpreted, it could have far reaching consequences, maybe unintentional/undesired ones too.
I think that's always been a threat. If a large business decides to target an area you develop a system for, you're basically out of luck unless you have some novel IP that's difficult to replicate. You really have to have something niche, patent it, etc. otherwise you just roll the dice that massive entity X doesn't steamroll your livelihood out of business.
Well, before this decision in a situation like this you would at least be able to retain your existing customers who are already invested in your platform, due to API incompatibilities etc, but with the ability to painlessly re-implement platforms the large business would take your existing customers too, and reuse the platform momentum that you've built.
It stifles innovation and rewards big business. Why risk developing something if it will be taken from you? A winner-take-all kind of situation. It leaves little room for the platform's authors to generate revenue other then hiring themselves to said big business, and probably at depressed rates.
Happens today, like AWS Elasticache and AWS Aurora. I do think you're right in that it will make those decisions easier. Particularly for AGPL/GPL things. Now they can be reasonably sure that cloning the end user facing API bit is "fair use".
Thats what patents are for. API is like designing your own custom plug to your device. You can't copyright that plug design, you can patent it its novel and new.
And if you are opposed to algorithmic/software patents it would be an unpleasant choice to make. Also, copyright is probably (I'm not sure) easier/cheaper to litigate, because it's much more evident when something is copied, compared to divinating whether something violates a patent or not.
>An alternative take, which I'm sure won't be popular, is that now, with an interpretation taken to the extreme, a megаcorporation can basically steal your (let's say a small startup's) platform (in case you refuse to sell it for ethical or some other reasons), by re-implementing it and investing much more resources which you don't have, to make it more attractive to customers.
GNU/Linux, a free reimplementation of AT&T's Unix interfaces, is largely why commercial Unix isn't really a thing any more.
Yes, but the situation is a bit different -- the majority of UNIX rights owners were actually promoting open standards through initiatives like POSIX, X/Open, so the re-implementation did not violate the copyright. As far as I know SCO's suits were not about interfaces of any kind, and the Linux kernel uses C standard library and other posix compliant libraries as an interface.
> Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment.
Also known as compatibility and interoperability. I'm so happy to see that judges understand their importance.
> Also known as compatibility and interoperability.
Actually, not really. Both this ruling and the lower courts' rulings in the case operated under the strange assumption that Android was not interoperable with Oracle Java, leaving programmer familiarity as the only reason Google copied the APIs. For example, in the Federal Circuit ruling that the Supreme Court just overruled, they complain that Google "points to no Java apps that either pre-dated or post-dated Android that could run on the Android platform". True; but of course third-party libraries often can run on both Android and Oracle Java, and their importance seems to have been lost on everyone involved in the case... including Google's own lawyers.
Thankfully, Google won anyway, so any defendant in a future case who can make a better interoperability argument will be in an even stronger position.
It does. There are some who would argue that the Linux copyright fight is already resolved because of the SCO suits, but that's wrong because
A: some of those suits are still ongoing, and
B: the suits never alleged infringement based on the API alone, SCO was claiming that Linux copied functional code in multiprocessing modules (we don't know which functions because they demand secrecy, even though it's open source).
Not even SCO, trolls that they are, were insane enough to claim that the APIs themselves are copyrighted.
I wouldn't celebrate a victory yet. As is often the case, the court's choice of tests simply will serve as a blueprint for others on how to avoid themselves being caught in the same kind of result.
Based on this court decision, it's apparently fair use to lift someone else's API and use it to jumpstart programmer familiarity with your product, if the author of the API previously tried to achieve success in that narrowly-construed, retroactively-interpreted exact same market segment and wasn't very successful.
I see a few things coming out of this. IP holder companies will become even more common: they will be used to hold copyright to one API and license it out to customers -- including independent companies that you would currently recognize as part of the same platform.
But because the IP holder does not provide an implementation and therefore does not 'compete' in a market segment, any unlicensed use of it is necessarily infringing: there's no innate functionality with which one can interoperate under the doctrine of fair use.
This ruling doesn't really change anything with respect to CPU instructions. The fair use defense doesn't cover patents.
Patents are what are generally what is used by Intel, etc to protect (and license) new CPU instructions and provide protection for novel ideas/inventions for up to 20 years.
Copyright generally protects specific expressions/implementations of an idea and last up to 95 years for corporate patents, or 70 years + the lifetime of the author for individual patents.
For completeness there is also trademarks which cover names and logos which can last indefinitely, as long as they are in commercial use.
The text of a CPU instruction specification would be covered by copyright, the algorithm for implementing the instruction by a patent, and the branding (ex: MMX) by trademark.
> I fail to see why an ISA is fundamentally different than a standard library.
As GP said, the difference is whether it's patented. If Sun had patented parts of the API (or algorithms necessary to implement it), then Oracle would have another weapon against Google even after Google was granted a fair-use defense.
Sure I'm not disagreeing with the legal history, but on what merits is one patentable, and the other either fair use to reimplement or not even copywritable!!
I could understand Intel having a CPU patent for specific CPUs, but an specific ISA?!
A really interesting test case would be to implement an isomorphic encoding to x86 with same instruction widths and what-not such that it's trivial to convert binaries from one to the other, and modify compilers (especially the JIT ones).
We shouldn't necessarily assume that the x86 patent war chests are legally sound. Rather, Intel and AMD have a mutually assured destruction cross-licensing arrangement and they need each other to stay viable to fend off antitrust regulators. But they would prefer not risking an unfavorable precedent by actually wielding their patents in court, so their deterrent operates more on the promise of protracted and expensive litigation, rather than on the promise that Intel would actually win against an upstart CPU vendor.
The word on the street is that is primarily protected by patents, which explicitly protect against from scratch competing implementations, unlike copyright protection which only protects against verbatim copying of the original work.
On the plus side though, they only get 20 years of protection. x86-64 in it's original form should be up for grabs pretty soon here.
So if Java had just bloated their code and those apis code footprint represented a larger % of the overall they’d be guilty? Or if Java trimmed a bunch of non essential packages into modules/extensions Google would be guilty
It seems to me the judge is saying, “the house was full of 10 tons of jewelry but the robbers only took 10 pounds so that isn’t really stealing lol “
I think this part here is important regarding your interpretation — it‘s not just about loc
> Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment.
> So if Java had just bloated their code and those apis code footprint represented a larger % of the overall they’d be guilty?
Under the fair use doctrine, maybe. Fair use in the US is literally about being able to use "limited" parts of a copyrighted work without getting permission from the copyright holder. What is "limited"? It depends, but 0.4% could reasonably be called limited.
> It seems to me the judge is saying, “the house was full of 10 tons of jewelry but the robbers only took 10 pounds so that isn’t really stealing lol “
Copyright and fair use apply to the creative substance of the work (in your example, the design on the jewelry, perhaps), not to physical instances of it (the actual pieces of jewelry in the house).
Copyright and fair use is a nuanced balance between giving copyright owners the ability to restrict the actions of the rest of society and encouraging the creation of works that will more than balance out the onerous restrictions undertaken. A situation not all of us even agree on.
The class of actions classified as fair use describe situations where arguably society can loosen the reigns to substantial benefit to society without destroying the incentive to create.
A classic example would be quoting books to discuss them. The free exchange of ideas greatly enriches society while encouraging not replacing readership.
Reducing it to an analogy to physical property obscures instead of enlightens because it misses all the ways a copyright is different than a right to physical property.
Read Thomas' dissent, it'sabsolutely insane. He says how those 11k lines are basically 97.5% of Java's entire usefulness, and billions of dollars of value to Oracle from an Amazon deal. Absurdity.
He really doesn, he and Scalia were the reliable crazy uncles of the court. Looks like Alito is trying to take up Scalia's mantle. I sear to god if Thomas had to rule on a runaway slave he'd rule for the slaveholder.
I _hated_ Scalia while he was on the bench. I fundamentally disagreed with him on a significant amount of his opinions.
Their actual opinions though are of such a different quality to me. Scalia's opinions I could absolutely follow the logic, and at times I found myself sometimes dispairing as I became convinced he might be right on an issue. Essentially, Scalia's logic usually felt on point to me, we just had deep axiomatic differences in how the law should operate and how the constitution should be applied to laws.
Thomas, though, I sometimes have a hard time understanding the argument he's presenting, and sometimes have a "how do you even believe that" reaction to his opinions.
Again, I think I disagreed strongly with Scalia opinions about as often as I do Thomas opinions, I just think they were for very different reasons.
++ I almost always disagreed with Scalia, but he was a master legal mind in his written opinions. Like, they're not even comparable to Thomas or Kavanaugh, IMO.
I agree Scalia wrote very tight opinions, but his personal biases were in such intense conflict with the actual constitution that the internal consistency just dosn't make it fly for me. But I see your point.
I agree with the majority here, but how is that crazy? One major point in the fair use analysis is that Android (for smartphones) did not directly compete with Java SE (for laptops and desktops). Showing that Android is a viable alternative for other Java uses, and did indeed supplant other Java contracts, seems relevant.
"The doctrine of “fair use” is flexible and takes account of changes in technology. Computer programs differ to some extent from many other copyrightable works because computer programs always serve a functional purpose. Because of these differences, fair use has an important role to play for computer programs by providing a context-based check that keeps the copyright monopoly afforded to computer programs within its lawful bounds."
This is EXCELLENT news for anyone in software development. Yay for Fair Use.
They are using a modern JDK on Android. The standard library is literally OpenJDK, and the runtime is the excellent ART JVM, which has super-fast GC and tons of mobile-specific optimizations (like zygote space support and switching to a different GC when the app goes into the background). IMHO, you really don't want HotSpot on mobile. ART is good work.
The runtime prevent the support for modern JVM features such as value types (see my comment above).
Google might duplicate all that work (but how much late they will be before it divide the Java world?
Switching to a unified jvm and improving it through collaboration is the way to go.
I am talking about C2 JIT support and other sota GCs.
ART has an increasingly growing technical debt.
No support for constant dynamic so no support for the upcoming pattern matching.
No support for sub 1ms GC
No support for the already available Vector API.
No support for value types.
No support for generic specialization.
No support for Loom.
ART is NIH and support with Java and Kotlin will explode into two worlds, the Android obscolete world and the modern, feature complete and optimized world.
ART has custom improvments? Fine that's good, now let's gradually port them to openjdk (or a light openjdk fork). No custom improvement is gonna outweight the need of interoperability (and the order of magnitude performance improvement from the above features)
ART is an AOT so I wonder if the android team has considered switching to GraalVM instead of hotspot, the transition might be easier.
Please Google, it's time to show technical excellence.
If you think ART is an AOT system, you might want to refresh your understanding of the system. ART has had a JIT for a long time now. Sure, HotSpot might have some features ART lacks, but ART has features that HotSpot lacks, so it's a wash. (And ART already has sub-millisecond GC pause times.) It's good and healthy for a language to have multiple implementations and there's no obligation whatsoever on the part of the Android people to switch to Oracle's JVM.
"But as long as your system isn’t heavily over-provisioned, you can expect to see average GC pause times of around 0.05ms (50µs) and max pause times of around 0.5ms (500µs)."
https://malloc.se/blog/zgc-jdk16
Sure, HotSpot might have some features ART lacks, but ART has features that HotSpot lacks, so it's a wash.
The ART features are not exposed to the language design. The JVM features in addition to the order of magnitude performance impact it will have (cf previous comment) needs to be supported in order to maintain interop with future JVM languages versions. (cf previous comment)
It's good and healthy for a language to have multiple implementations no it's much healthier to have one that reap most of the benefits through collaboration. Hence why Android try to merge its patchset in the Linux kernel instead of duplicating it's million commits.
Sure, HotSpot might have some features ART lacks, but ART has features that HotSpot lacks, so it's a wash.
Technical excellence unfortunately isn't an obligation. Or at least until the system becomes unsustainable (Cf interop) but then when it comes it is too late.
And it's kinda nice to see it come to an end. I wonder if both google and oracle are looking at the bills from their lawyers and thinking about it like the destruction at the somme.
It's great for software, it'll be an interesting documentary someday. And congratulations to all the lawyers for making a ton of money.
This is one of the most important legal decisions in the history of software. The US Supreme Court has basically just saved the whole software industry (and FOSS projects) from being wrecked by patent trolls.
There is a tendency, but it's not deterministic. When it does happem, it's more often for the broad strokes than this kind of detail, see eg sw patents.
Doesn't matter, as GDPR showed having something that's troublesome to sell or distribute in certain (critical) markets is a huge, massive roadblock for most companies. Software patents are worth s*t in the EU, but still we had to endure year of hassle when installing MP3s and such on Linux due to most distros having to also comply with the US market.
I agree with the parent. Patent trolls aren't tied to patents because of some love for patents specifically, but because the legal structure allows for the most misuse. They would gladly add another tool to their belt given the chance, as we saw from this case with most of the bad copyright opinions coming from the CAFC, ie. the patent appeals court that's currently stuffed with IP maximalists.
Oracle sued Google for copyright and patent infringement. Today's decision has to do with the fair use defence in the copyright portion of the lawsuit.
I understand that. I'm saying that the same people that are patent trolls would add misuse of copyright to their set of tools if it became that became a viable option available to them. Today's patent trolls would just be called IP trolls, but they'd be the same set of people.
Copyright is already misused to perform DCMA takedowns of fair use and is a well known option available to all comers. I think the classic example was the Prenda lawsuit firm.
Prenda made its money by suing people who allegedly downloaded pornographic films online. Its targets frequently agreed to settlements worth a few thousand dollars rather than facing a courtroom process. These copyright trolling tactics netted the company more than $6 million between 2010 and 2013.
I mean, that article is about how the Prenda saga ended with the lawyer disbarred and in prison.
If his strategies had ended up a valid, legal option we would absolutely see trolls expanding into this. John Steele was testing the waters and got eaten by the deep acting as a warning for how not to go about this.
There's some DMCA takedowns and such still, but they aren't quite lucrative enough to show up on patent trolls' radars. Aquila non capit muscas and what have you. A several billion dollar copyright claim like Oracle's passing SCOTUS muster absolutely would have shown up on their radar though.
Xinuos is the company that purchased the remnants of the SCO Group in 2011. The SCO Group, in turn, is a company most famous not for its actual products but for its litigation against IBM and Linux. That litigation began in 2003—partially funded by a very different Microsoft, only five years after the leak of the Halloween documents in which Microsoft acknowledged the "long-term viability" of open source software and discussed strategies to choke it out of the market.
I looked back at SCO v IBM on Groklaw. SCO wanted to claim copyright infringement over IBM's use of code from Project Monterrey, but they tried to add it too late, and the judge wouldn't let them amend the case yet again. Well, this Xinuos nonsense looks the the copyright version of that exact claim.
And that's probably not going to go anywhere either. Yes, there's the occasional attempt, but it's a set of fringe actions that don't turn out great for the agressor rather than a well trodden playbook that will probably earn you many millions like patent trolls can expect.
Why would you prevent someone from writing whatever code they want, as long as it is FOSS? That's hypocritical, considering that doing whatever you want with the code is one of GNU's main tenets ("free as in freedom")
Why? It wasn’t about whether APIs are under copyright (they are), but whether this particular case constitutes fair use. I think the effect of this decision was way overblown.
Having a song in the background of a video is not considered fair use. But copying an entire API by a mega corporation in order to appropriate all its value, is fair use.
Wine would be a much better example of fair use. It is explicitly made to allow users of linux to run programs written against win APIs. It is not so clear in the Oracle vs Google case, because it is questionable whether Google’s case was really fair use (google pretty much didn’t want to pay Sun for the mobile license and the whole thing was done as cost saving) - hence the very long timeline of the case.
The dissent explains how Android fails three of the four fair use tests. I'm not sure what the majority was smoking when they wrote this, but far better examples of fair use exist, especially uses that are noncommercial and especially are noncompetitive with the original.
Java was a mobile OS before Android literally obliterated the market after copying Java. Arguably, if Android was fair use, everything is fair use and all software copyright is fundamentally defeated by this ruling.
> whether this particular case constitutes fair use
The English common law system relies heavily upon judicial precedent. A ruling in this particular case that the copying of an API constitutes fair use will inform decisions in future cases of similar copying.
Justice Thomas clarifies why this case has wide-reaching impact in his dissent.
"Congress rejected categorical distinctions between declaring and implementing code. But the majority creates just such a distinction. The result of this distorting analysis is an opinion that makes it difficult to imagine any circumstance in which declaring code will remain protected by copyright."
I concur with Thomas (not in the connotation - he thinks this is a bad thing, I do not - but in the denotation). This ruling is such strong precedent that almost any API cannot be bound by copyright that no company is going to be willing to spend the money to raise the question.
I think Thomas makes a mistake in disregarding the reason for introducing the distinction between declaring and implementing code. The law (as I understand it - IANAL) doesn't exhaustively enumerate what does and does not constitute fair use. Therefore, any specific instance of fair use is bound to introduce new distinctions that are not specifically mentioned in the law itself.
In this particular case, Google's copying of interfaces was ruled to be fair use because its purpose was to allow Java developers to reuse their skills. This reasoning only holds for the declaring parts of the copyrighted work though. And that's why the distinction becomes necessary even if Congress rejects it as a primary distinction between copyrightable and non-copyrightable work.
That's also why I think the ruling is perhaps not quite as broadly applicable as some (including Thomas) are thinking right now. It may not cover code that isn't used by a significant number of developers. I haven't read the entire ruling, so I'm not sure whether it covers non-public interfaces that are nevertheless useful for interoperability. Such interfaces were at the center of past disputes (I think Microsoft's SMB protocol was one such case).
I’d make the case that it instead saved closed source coding.
Open source code is still usually copyrighted. Nobody would trust closed languages and APIs unless they paid a fortune for them while open source with a grant would be safe to use.
I don't know about that. The issue at hand there isn't implementation of APIs, it's using an existing API (run on existing infrastructure) in a way that the social media company does not approve of. Isn't that more an issue of unauthorized access than of copyright?
The first phase of the case lasted from 2010 to 2015. Oracle successfully established that APIs are copyrightable, but their claims of patent infringement were rejected. Google petitioned the Supreme Court in October 2014 to review the case, but this was denied. A second petition by Google in January 2019 included the judgement that APIs are copyrightable. The Supreme Court agreed to review this part of the judgment in November 2019.
To the degree that SCOTUS has found that an API can be copyrighted, there is still room for copyright trolls to operate.
This is a pretty unfortunate ruling and I have some questions about the shoddy claims made in this document (the one suggesting Oracle benefitted from its platform being ripped off without license is particularly rich, especially considering it was the death warrant on Java as a mobile platform entirely, right before mobile became huge).
But what can we expect from the fine folks behind Citizens United?
Upvoted because you shouldn't be downvoted into oblivion just for having an opinion contrary to the HN hivemind. It's okay to think Oracle should have won here. I disagree, but there are reasonable people on both sides.
In thought Oracle should have won this case as well and the opinion basically affirmed the reasoning but went the other way. The basis for Oracle winning was that copying the Java API for interoperability with developers rather than for existing software was copying for Java’s beauty rather than being purely functional.
Whenever this case came up on HN people outright refused to acknowledge that one’s intentions even mattered when copying an API.
> copying for Java’s beauty rather than being purely functional
How would "beauty" be defined here. In the context of copyright, it would seem to apply to aesthetic beauty, but I'm not sure that applies to code (despite all sorts of engineers using the metaphor for theirs or others work).
I would imagine it would hinge on the simplicity/elegance of the organized structure of the APIs? We tend to prescribe the term beauty to language features that are easier to use and implement in a novel way compared to the languages that came before.
I'm not sure that is the same use of the word "beauty" as used in copyrighted materials like books and art, since APIs are machine blueprints, whose primary and fundamental purpose is functional, not aesthetic.
Similarly, though a mechanical engineer might describe a particular gearbox design as beautiful doesn't make it copyrightable, since it's fundamental purpose is also not aesthetic.
The QWERTY layout isn't the best but everyone makes their keyboards the same layout. QWERTY isn't beautiful nor the most effective, it's functional and familiar.
The GP post seemed to start with some interesting information but then instead of adding enough substance to become a good comment, it petered out—and then it went straight to flamebait. It's correct to downvote flamebait.
Contrary opinions are welcome but need to come with substantive information. Contrarian comments that just go "nyah nyah nyah" at the majority end up having the same effects as outright trolling. It's tempting to do that, because it's frustrating to be surrounded by opponents (which is what holding a minority view on the internet feels like). It's part of maturing as a commenter to resist the urge to lash out in such situations—which is in your interests not to do, since it only discredits the minority truth even further.
We reach the conclusion that in this case, where Google
reimplemented a user interface, taking only what was
needed to allow users to put their accrued talents to work
in a new and transformative program, Google’s copying of
the Sun Java API was a fair use of that material as a matter of law.
Also, while I hate to just repeat things that have already been said, I feel compelled to say
"What a relief!"
because this would have been a complete disaster if they had gotten this decision wrong. In fact, I'm not sure "complete disaster" is a strong enough phrase to reflect what it would have meant for the software industry if this had come down the other way. So getting this looming disaster out of the way is a tremendous relief.
I'm glad for the verdict but this is such bullshit.
Google implemented exactly enough to create the illusion of letting people use their Java talents then dragged their feet with a half broken out-of-date language environment.
And they did all this to save money, not some sort of noble rebellion or clever hack.
> Sun offered a licensing deal of between US$30 and 50 million. Schmidt said Google would have paid for that license, but they were concerned that Sun had also requested some shared control of Android along with the fee.
A pittance for Google but that vague "some control" sounds really bad right? Well fortunately there's a history here and we know from past licensing deals (J++) this control is enforcing interoperability with other Java implementation. And of course Oracle spells that out pretty easily:
> Oracle states that Sun refused because Google’s intention was essentially to fork Java to a Google version of the language, and to prevent it being inter-operable with other versions, an idea which was “anathema” to the “write once run anywhere” basis of the language.
Google got a cheap license and the only stipulation was "don't fuck up the Java ecosystem by having your OS run Java-but-not-really" but that was too much for them and exactly what they ended up doing!
I don't know why people are acting like this is some victory of open source. Maybe a victory for open source, but championed by a greedy corporation that fragmented the Java ecosystem for years.
I wish Oracle could have taken another angle here, they deserved damages from Google for this. Google literally pulled a J++ and got away with it.
I don't know why people are acting like this is some victory of open source
I don't know that anybody is saying that Google did anything specifically Good or Just or Noble or anything. The celebratory aspect is more based on all the Bad Things that would have happened in the future if this decision had come down in favor of Oracle.
That's literally the next sentence that you intentionally omitted.
And I've seen plenty of people paint Oracle as some evil boogeyman like this is some good vs evil struggle.
Oracle wasn't trying to make Bad Things happen. They were seeking damages from a damaging situation, and if bad things had happened... I'd blame the patent trolls and judges that enable them.
Their insanity continues regardless of the verdict after all, and there are plenty of otherwise reasonable takes ruined by their existence.
They were seeking damages from a damaging situation, and if bad things had happened... I'd blame the patent trolls and judges that enable them.
The issue at hand is about copyright not patents.
And note that I'm not saying that nothing bad can, or will, ever happen again. I'm just saying that the consequences of this decision coming down the other way would have been Very Bad, which makes the current decision a Very Good Thing in general.
You're saying "I've only seen people say we avoided very bad thing"
I'm saying that's simply not the case, plenty of people are attaching some sort of morality to this.
Edit: Case in point, the other reply to the comment is now one of those people.
And patent trolls and their sympathetic judges are 100% the same people who would have frenzy fed here, many of then (most?) are also copyright trolls in the context of software. In case you didn't know.
It looks like you are saying that what Google did may be bad too, but you are happy anyways because it’s good for some group of people (which may include you). This actually stifle innovation since companies will now consider that capital spent on designing APIs May be leveraged by their competitor simply stealing the API and save on that investment.
What bad things would have happened? This ruling specifically says that it was fair use, not that APIs are copyrightable - which seems to be the buggy man. As it currently stands, APIs absolutely fall under copyright laws.
It would have become MUCH more dangerous to provide an alternate implementation of someone else's library or interface, which I believe would have have a profoundly negative effect on the entire software industry.
As it currently stands, APIs absolutely fall under copyright laws.
Yes, but now there is a very strong precedent establishing the idea that copying those copyrighted API's is OK anyway (under Fair Use) under at least some circumstances. And based off the way the SCOTUS decision was worded, it strikes me (admittedly, IANAL) that the set of circumstances that are captured by this are pretty large.
>As it currently stands, APIs absolutely fall under copyright laws.
This opinion doesn't say so.
"We shall assume, but purely for argument’s sake, that the entire Sun Java API falls within the definition of that which can be copy-righted. We shall ask instead whether Google’s use of part of that API was a “fair use."
No, it is a sidestep. Even if the code is copyrightable, it doesn't matter. The majority decided it was better to make a case for fair use than for the uncopyrightability of APIs. That's all.
My understanding is that the original problem was that there is nothing in law that makes a difference between actual implementation code and API. Otherwise it would have been a trivial case.
And even in this, they rather go with the easier fair use claim that is case-by-case.
Well, if you are looking at an API which’s license explicitly forbids copying, I would stay away from copying it.
While this case do give a precedent, it is much more about this specific case being a fair use according to the supreme court, than on whether APIs itself are copyrightable.
Also, given most programmers’ assumptions, I would not base much on that alone :D But IANAL, so do ask one, to be safe.
If Android Java was illegal, it seems likely that GNU, Wine, OpenStack, the Mastodon client API, LibreOffice Calc, ... this ruling is limited enough that some or all of those might still be illegal, but at least the open source clone of `windows.h` that winelib distributes is probably safe.
That's a thorough miss-understanding and misrepresentation of the situation. It also has nothing to do with open source specifically.
Google never promoted Dalvik as being a licensed Java VM implementation and never claimed it was a compatible Java runtime. The license was for logos and trademarks. As long as they didn't use those logos and trademarks, there's no violation of the license for those things. The API case is based on copyright, not trademarks or licenses so is a separate issue.
This is why Microsoft could lose their dispute with Sun over the MSJVM which was a non-compliant JVM implementation, but still come out with J# which was an implementation of the Java language running on .NET.
Microsoft licenses the Java trademarks and claimed the MSJVM was an implementation of the Java runtime, while breaking compatibility requirements for the license. Therefore they were in violation of the license. The .NET platform was never claimed to be anything to do with Java, so having Java code run on it in the form of J# was fine. The situation with Google using the Java language running on Dalvik is exactly analogous.
This sounds like you read Jonathan Schwartz's testimony and almost misinterpreted it.
The license included using Java's name and trademark and that was for Sun's benefit, not Google. Google wasn't asking to call it a Java phone. That's why part of the testimony is actually Sun saying they'd pay for that
And the rest of your comment is completely missing the mark here.
You're saying MS was in the wrong with J++ because they licensed Java.
I'm saying MS was in the wrong because saying you're using language X then randomly not supporting parts of that language is a shitty thing to do when you have a large presence because then you start to fragment the language's user base.
Copyright be damned. (Which is exactly why I said I wish they could have taken a different angle)
-
Logo or no logo, for years Google said you program Android in Java.
Their "Java" did not track the language everyone else knows, using a strange smattering of features from 6 and 7 in this weird hybrid that hobbled along.
As a result there was plenty of confusion among developers about what worked on Android. As someone who has mostly held day jobs that involved Android for a decade or so now, I can confidently say it was problematic and Android dragging its feet while being such a large platform caused people to avoid using language features.
When Lambdas first landed for example, I remember multiple projects refusing to use them since there was no official way to support them on Android (retrolambda which was written by a former coworker of mine addressed this)
This is so simple, Android should have licensed Java, created a compatible implementation, and kept it up to date. Would it have been hard? Yes. Would it have been better for Android developers who ended up using wonky work arounds, people learning Java and dealing with two sets of rules, and the Java ecosystem as a whole? Also yes.
If Android's "Java" is so different, then how does Google benefit? The whole point of reusing an existing language is to jump-start the app ecosystem by allowing developers to make use of their existing experience.
Like in Java 7 days Android didn't support NIO, randomly didn't support certain forms of exception handling, had random holes in library support (core Java libraries mind you, not the sun stuff)
The odds you could take a random XML parsing library for example and use it in an Android project were low. Random namespaces would be missing, cryptic errors tied to missing language support, the works.
Like you realize the idea of having a kinda-almost-the-same language being damaging is already known. J++ was not the same set of circumstances, but it shows that yes, you can make a language similar enough to benefit and at the same time be different enough to damage.
I mean literally QNX had better support through some vendor we were using at the time, but somehow Google couldn't do better?
Can you be more specific about the differences your talking about? As far as I'm aware, Google never added their own features to the language itself. Granted, they were a bit slow to support new versions like Java 8. They also chose not to support libraries like awt, but I wouldn't consider those part of the Java language; rather they're part of Java SE.
No, you mentioned things Google didn't implement. That's not the same as making it incompatible. In this case that would be Google adding things to Java, not skipping some.
Not supporting random parts of a contract programs rely on to function makes your platform incompatible. Especially when you claim support for an update but then randomly cut out parts of the functionality.
In what universe does incompatibility somehow require... adding "things"... like what?
I don't have much patience for people so out of their depth they don't understand the table stakes for a meaningful conversation on a topic.
> Computer programs differ to some extent from many
other copyrightable works because computer programs always serve a functional purpose.
So a computer program instructs processors to do things while books do not necessarily instruct neurons to do things. This seems like a leap. I could write a book with NOP for every word or I could write a program with NOP loops. Are these really instruction to do things? Like so, books do instruct people (aka knowledge).
How about in a higher level language? C program that is all semicolons vs. a book of all semicolons? Neither computer nor human is any more knowledgeable after reading it.
I haven't compiled a C program in years so I'm honestly not sure what an all ; program would do. But assuming it would just do nothing, well that is still an instruction to the computer. Delays are very meaningful. Serial communication is a great example.
Which of Breyer's clerks drafted this? They clearly understand many tech issues and I hope they find their place on some Federal circuit to herald an era of logic in tech law.
"Google’s limited copying of the API is a transformative use. Google copied only what was needed to allow programmers to work in a different computing environment without discarding a portion of a familiar programming language. Google’s purpose was to create a different task-related system for a different computing environment (smartphones) and to create a platform—the Android platform—that would help achieve and popularize that objective. "
...
"Here the record showed that Google’s new smartphone platform is not a market substitute for Java SE."
...
"Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment. "
...
"the Court concludes that Google’s copying of the API to reimplement a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, constituted a fair use of that material as a matter of law. "
"Held: Google’s copying of the Java SE API, which included only those
lines of code that were needed to allow programmers to put their accrued talents to work in a new and transformative program, was a fair
use of that material as a matter of law."
If the un-italicized is the new test, that's probably the most reasonable thing I'm going to read this month. And it's only the 5th.
They didn't establish a new test, they applied the existing 4 tests / factors and found that they indicated fair use. The first 2 or 3 pages contain a description of the 4 tests and how they were found to apply in this case.
Not entirely. Per my understanding, this is a fairly big shift:
"The fair use question is a mixed question of fact and law. Reviewing courts should appropriately defer to the jury’s findings of underlying facts, but the ultimate question whether those facts amount to a fair use is a legal question for judges to decide de novo. This approach does not violate the Seventh Amendment’s prohibition on courts reexamining facts tried by a jury, because the ultimate question here is one of law, not fact. The “right of trial by jury” does not include
the right to have a jury resolve a fair use defense."
Or to put it another way, convincing a jury that something is or isn't fair use is very different than convincing precedent-bound judges, especially with this on the books as the controlling case.
In final impact, it seems like an incredibly good judgement for everyone: you can prove to a jury what was / wasn't copied, and then a judge will apply a standard fair use test over those facts, with a tendency towards allowing transformative use.
Legal protections against copying, room for progress, and (most importantly!) more certainty and standardization in how cases are decided.
That may be true, I remember there was quite a bit of surprise when the Court of Appeals overrode the fair use jury finding (not so much because they decided differently, but rather the fact that they set aside the jury's finding at all).
Well, it sounds like it's still the same test; it's just deciding that fair use cases must be decided by judges, not by juries. Which, as you say, seems like a good decision.
That analysis is addressing an argument that the Supreme Court could not overturn the finding that it was not fair use. That argument was based on the Seventh Amendment's reexamination clause. The Supreme Court held that the reexamination clause did not prevent it from addressing this issue, because the question is a mixed question of law and fact, i.e., it's a legal conclusion based on evidentiary facts. The Supreme Court cannot re-examine the "underlying facts," but the Seventh Amendment does not preclude it from deciding, as a matter of law, whether those underlying facts constitute fair use.
While Breyer wrote the piece, it was a single majority piece, which means all 6 justices agreed on it. The other 5 justices and their clerks were all effectively editors on the majority opinion.
A supreme court clerkship is very impressive, but "saved by one of these people" is strong. My understanding is the justices have a conference, stake out their positions, and then the chief assigns cases based on who can attract a majority to their opinion. So Breyer presumably had a rationale that could get at least 4 concurrences in conference. It's possible for the other justices to later change their minds based on the actual opinion the chambers produce, but that doesn't seem to be the case here. It's also possible the case was just assigned based on workload, considering the 6-2 split, almost anyone could have written it.
In other words, the clerks do the work of researching and fleshing out the finished opinion, but I don't think they have much influence on the rationale used to decide the case. I've heard stories of clerks having to write opinions they personally disagreed with.
Breyer was a prominent copyright law scholar before he became a judge. Between that, and the fact that he hasn't gotten many opportunities to write majority opinions in his 27 years on the court, and the fact that he's likely about to retire in a few months, giving him the opinion was the obvious and collegial thing for Roberts to do.
I'm biased, but I don't think the technical elements of this case were challenging to an intelligent layman. I think most people smart enough to become judges can understand the concept of an interface that is independent from an implementation, which is all this case really required, along with quantitative estimates of the amount of code involved. So I doubt that he needed clerks to understand any of it.
While the Supreme Court justice authoring the opinion will have laid out the broad principles and legal framework upon which he/she wishes to make the decision, the law clerks have a central role in crafting the opinion and making sure that the arguments and reasoning are sound.
By the very nature of the court's operations, the justices cannot be writing the 30 page opinion and doing all the research on every case. The clerks are the ones who will be writing most of the summary, determining how certain cases influence the current case, and laying out the draft logic. They'll have many sessions with the justice to test the logic and find edge cases, implications, and make sure that a decision affecting millions of people is sound. Basically debate and draft/redraft the opinion (with other justices + clerks as well) based on what they're finding as the drafting continues.
I would say the clerks are indispensable to the creation of the opinion's outcome.
Another way to read that would be that the S3 API isn't a substitute for S3, and so another company using the S3 API could be fine so long as they don't copy the code for S3 itself?
My impression is that this is probably nuanced enough we need to read past the syllabus if we wanted to really unpack the reasoning. I can't tell which is the key part from which to make an analogy.
Theoretically, yes. But such companies would also have the ability to argue that their API was fully interoperable with S3, a factor counseling in favor of fair use. Google could have talked about interoperability in this case too, but for some reason didn't; see my other comment [1].
Strictly speaking, yes - this decision, as many other SCOTUS decisions, is tailored to specific case and leaves the other situations to be argued on their own merits. But having definite precedent in the situation where API has been recognized as non-copyrightable both sends signal to the lower courts about where SCOTUS leans, and to the potential plaintiffs about their chances to ultimately prevail. It is not a definite solution for all cases, but it shifts the calculus to the side of "if you sue for copyright infringement about S3 API, it'd be an uphill battle for you and probability to lose is high".
And remember that Fair Use is a four-part balancing test. Thus, a single factor shifting will still have to be weighed against the rest. Also, for the S3 APIs, you're also talking about using even _less_ of Amazon's copyrighted code (e.g. a dozen function signatures compared to millions of LoC).
I believe the parent commenter was highlighting the particular wording of the opinion, rather than the actual decision itself.
One could imagine an opinion supporting the same decision with less clear or precise language. As I understand the process, the opinion was frequently reviewed and advised by Breyer, but actually written by one of the clerks.
I think you might be surprised at how deftly Supreme Court justices are able to see through specific tech issues to identify the core dispute at hand and how decades-old laws and regulations should (or should not) apply.
If anything, they are even better with age at not getting confused by increasing technical detail of our API era, and making sure that the principles of law cut through that. (and how to structure a decision so it's clear to everyone)
If you relied on a tech-heavy decision to be made, this would not be a Supreme Court issue.
The way that the Court and every one of the justices work is that he/she will draft out with the clerks the broad principles and approach that he/she wishes the decision to be crafted around. Which cases influence the precedent, which regulations take what role in the decision, what issues to "turn" the case on, etc.
It's the job of the clerks then to go research, summarize, and create the bulk of justice's position based on knowledge of the details. They (justice + clerks) then review and talk about the evolving draft opinion several times over the course of months, circulating drafts to the other justices (and their clerks) as well. And note, most of the facts/issues already came up in the lower courts cases and rulings, so there has already been some fair surfacing of the details of the dispute (and what other judges believe the important issues to be) as it made its way through the system.
The justices have many opinions per term to do this for, and you can be very sure that while the "authoring" justice has been briefed on (and very well has tested the ideas with the clerks in detail), the summary of how APIs work and their legal status is not based on the justice him/herself wading through license agreements and "figuring out" the structure of the code or its legal status.
So, that is not to say that the justices are ignorant of the details (far from it), but the level of detail needed to form the groundwork of the opinion is heavily shouldered and created by the law clerks. But the main conclusions of the opinion are definitely of the justice him/herself (with input from the clerks).
-- By the way, the clerks (you may not realize) already have had a role in getting the case even to be heard before the Supreme Court, in briefing and summarizing the underlying appealed case on why it should be ripe for a decision, so they already many of the issues at stake and how to think about them.
Maybe think of it like a software engineering manager and the individual developer. The manager can lay out the principles by which a certain piece of code is to be written, and the capable developer will identify all the issues, test cases, etc., and they will review it together at various stages. You would not say that either could have done it without the other. It's kind of like that (when software engineering works like it should).
"Here the record showed that Google’s new smartphone platform is not a market substitute for Java SE."
Well that nukes it. The courts took how long to identify this precedented principle? It seems like the rest of the opinion is just there to ward off more of this tomfoolery for people that don't get it.
The lower courts have been frankly awful about refusing to acknowledge the rulings that SCOTUS has been handing down about software and technology in general. For example Alice Corp v CLS Bank International basically put an end to the validity of "[generic idea or business method], but on a computer" patents and the lower courts have basically said "haha ok great but we're not doing it", continuing to rule on "on a computer" patents as if they were valid, and with the patent office continuing to issue such patents.
Obviously this is copyright vs patent law but it goes to establish that there's been a big problem with the lower courts on "computer laws". It's a nexus of the problem with jurisdiction-shopping (finding a lower court that wants to keep lots of cases coming in and is willing to pump out questionable decisions to do so) and just the legal system being about 30 years behind the times in general in terms of understanding computers and how innovative a particular idea may be.
> Which of Breyer's clerks drafted this? They clearly understand many tech issues and I hope they find their place on some Federal circuit to herald an era of logic in tech law.
Breyer also has a brother who was a District Court judge in the SF Bay Area who's undoubtedly had to deal with various tech cases. Not saying there's any kind of shared knowledge of tech within the Breyer family but just kind of interesting.
How much precedence does this carry for other cases or does each instance of "fair use" need to be evaluated by the Supreme Court before we know if it was legal?
Precedent works by analogy. What matters is not just the outcome of a particular case, but the reasoning. When similar legal questions come up in future cases, lower courts are required to cite this case and follow the same reasoning, to the extent the reasoning applies to the facts of that case. Of course, no two cases have exactly the same facts, and different facts may produce a different outcome. But if a future case is similar enough to this one, the lower court will be expected to compare the two cases and explain why the differences in facts justify a different outcome.
No legal question is resolved for sure until it reaches the Supreme Court, but most cases never make it there, instead being resolved by lower courts applying higher courts' precedents.
Breyer has actually been writing on these issues for quite some time; see for example his article "The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs" [0] -- published in the Harvard Law Review in 1970. His overall body of work demonstrates a pretty good understanding of the underlying technical issues, and he has been a reliable ally on the bench in this area.
I am glad Oracle didn't win. It seems to me that they bought Sun just to sue Google. I'm still bitter over for how they destroyed Sun... it's a shame that they didn't have a better steward.
True, but it's such a strong precedent in favor of copying API's being "fair use" that it at least partly moots the more general question of "are API's copyrightable in the first place." I think this was a good decision all in all. AIUI, the SCOTUS try to limit the scope of their decisions as much as possible, to avoid over-generalization.
* Google’s API copying can’t be fair use if they weren’t copyrightable in the first place.
* If you do copy an API because of it’s beauty and not for either interoperability with software or interoperability with developers then it seems that you would run afoul of copyright.
If you do copy an API because of it’s beauty and not for either interoperability with software or interoperability with developers then it seems that you would run afoul of copyright.
That's why I said it partly moots the issue, not completely. Yes, you could conceivably still run afoul of copyright in some cases, but at first blush, this seems like a precedent that will make it very unlikely that that would happen. I guess time will tell, but that's my initial perception. IANAL, of course.
> If you do copy an API because of it’s beauty and not for either interoperability with developers then it seems that you would run afoul of copyright.
So don't do that?
Why would you copy an API save to be inoperable?
If it's just to duplicate someone else's design, I think I'm okay with that potentially being a copyright violation.
That... somehow seems fair? If what you are copying is the artistic expression and not the functionality, that seems like exactly the sort of thing copyright is supposed to be about.
Of course fair use is moot if API cannot be copyrighted in the first place. But the court seems to say that this case would be fair use even if API is copyrighted.
"We shall assume, but purely for argument’s sake, that the entire Sun Java API falls within the definition of that which can be copy-righted. We shall ask instead whether Google’s use of part of that API was a “fair use.” Unlike the Federal Circuit, we conclude that it was"
From the dissent: "In the 1990s, Oracle created a programming language called Java..."
Sun Microsystems was acquired in 2010... I guess I should give Thomas the benefit of the doubt that he intended the statement to apply to Oracle's owned IP & not be a historical account of the language's creation and creators, but this rubbed me the wrong way.
He addresses this in footnote 1 on the same page, though. "A different company, Sun, created the library. But because Oracle later purchased Sun, for simplicity I refer to both companies as Oracle."
Thanks for pointing that out -- I skipped over that first footnote. On my screen, it's on the previous page from the quote I posted (for what it's worth).
You also forget that a justice might feel more comfortable with ruling in opposition so that he/she can write the dissent, but if his/her vote was a swing vote, the justice might have second thoughts about that. It's easy to vote in opposition when you know it doesn't matter - and then, hey, you get to write the position for the losing side.
> You also forget that a justice might feel more comfortable with ruling in opposition so that he/she can write the dissent, but if his/her vote was a swing vote, the justice might have second thoughts about that.
This doesn't make any sense. Justices vote in the majority while disagreeing with part or all of the majority opinion all the time. The mechanism for complaining about the majority reasoning is the same in either case: you write a separate opinion detailing your personal analysis of the case. That opinion is called a "dissent" if you voted against the majority and a "concurrence" if you voted with the majority.
There is no concept of "the dissent". Any dissenting justice is free to write one; it is routine for one case to have multiple dissents.
Is intellectual surprise caused by anything other than bias?
I noticed this when I started rereading the dissent with a s/Oracle/Sun Microsystems/g. I felt a bit more swayed when I started to recollect all my fond Sun memories: blogs, hobbyist customer experience, etc. and stopped thinking about my glowing hatred of Oracle.
The dissent does seem nuanced to me even though I am quick to dismiss it based on the premise and my superior technical knowledge and maybe a bit of my own biases that I can't quite completely ignore.
Also from the first page of the dissent: "A different company, Sun, created the library. But because Oracle later purchased Sun, for simplicity I refer to both companies as Oracle."
Designing an API is a creative work not unlike that of an architect, I see the merit in the dissent pointing out, e.g "there may have been only one way for Google to copy the
lines of declaring code, but there were innumerable ways
for Oracle to write them. Certainly, Apple and Microsoft
managed to create their own declaring code."
I'm not sure what Thomas was referring to. What does "create their own declaring code" mean? Did they do some kind of white room implementation where they typed in the contents of a javadoc web site? Did they modify the name of parameters?
Yes. There is no appellate court above the Supreme Court. The only way things could change now is if Congress/President passed a new law, and I don’t think API copyrights are near the top of the list.
> There is no appellate court above the Supreme Court.
That is true.
> The only way things could change now is if Congress/President passed a new law
That isn't true at all; the Supreme Court is free to change the law by itself. Someone could sue over the same question and get a different result overruling this one.
Suing over the same question wouldn't get very far. The best approach would be suing over a closely related question. See coomoo728's analogy to Roe v. Wade: https://news.ycombinator.com/item?id=26699621
They are free to change their mind, but are very reticent to do so. What compelling reason would there be to revisit this that could possibly change the outcome?
IIRC, they lost on the patent portfolio at the very beginning. That's how the case went to CAFC instead of the Ninth Circuit--there was a patent argument in the original appeal, which was dropped several years ago. And having already lost on the patent question in the past, any future case can point back to that decision and say "can't relitigate this point."
Had the ruling gone in Oracle's favor I can imagine some greedy company trying to procedurally-generate every API and copyright them all similar to this project which tried to copyright all musical melodies:
Can you copyright generated things? You probably could copyright the way you're generating it, but I doubt you have a legal standing about the generated text or melody itself.
Have you ever used code generation as part of software you have built?
Is there any reason why generated code could not be copyrighted as part of a larger system?
For example, suppose I define a data model for a public-facing API and then generate SDKs in various popular programming languages to interact with the public-facing API.
If I were a major corporation that owned such a public-facing API, then I would expect that the generated SDKs would carry the major corporation's copyright.
In my code generated-SDK example, a human defined the data model and a human created the code generation algorithm, but an algorithm generated the SDK code itself.
So human creativity is involved, but is not the direct creator of the SDKs. Does that count? I am not really sure.
I bring up the generated SDK example because I have used just such a system when I worked at a major corporation: I created a data model in Web Services Description Language (https://en.wikipedia.org/wiki/Web_Services_Description_Langu...) and used a company-owned tool to generate SDKs in various programming languages. All of the generated SDKs had the company's copyright notice in the generated code.
The code generated SDK is a derivative work of the human-defined data model - just like the binary for any piece of software is derivative of the source code. (Otherwise where'd the copyright for the binary come from?)
The generator's copyright (or the compiler's) doesn't directly flow in. (But if the generator/compiler incorporates pieces of itself, like a support library, that does. Also, the generator/compiler might have terms of use...)
If you write a generator that just generates random APIs, those are basically machine generated garbage and wouldn't be copyrightable. The human input to the generator is missing.
[FWIW, I had to research this due to an "ill-behaved" community member on an open source project a few years back; I'm not completely making this up out of thin air. That still doesn't make me a lawyer though ;)]
My understanding is that the copyrightability of binaries was something of a gray area for a time even after the copyrightability of source code was established. Apple v. Franklin is probably the most relevant court case.
I think this is the key statement that will make a difference. If you want to copyright a larger system, generated code is not a problem. If you want to copyright an individual, generated piece of code, I doubt you'll get copyright for that. But IANAL either.
Sometimes I fantasize about generating methods for creating copyrights, such that you can copyright the process of creating the copyright - for the commmunity, obviously. However, they explicitly forbid that, unfortunately. If only it worked, you could file a claim for anyone that created a copyright to your disliking, given that you probably make strong stance.
While I'm at it, in a similar vein though entirely unrelated, i sometimes think of ways to create jurisprudence in your favor: You try to emulate a situation to your disliking - e.g. aggresive data hoarding - and file suit to yourself, try to argue the arguments that your target would probably file, but just crappy enough that you actually lose. Do this often and stealthy enough and voila, you might have generated enough jurisprudence to actually file your final claim based on your previous "lost" lawsuits. I do think that this actually does happen at times, though.
You can't copyright a procedure or process, but you can copyright the text of the instructions for the procedure. That doesn't stop someone writing an original text of instructions for doing the same thing though. That's how come there are clones of Monopoly.
> Finally, in 1983, the Supreme Court let stand an appeals court ruling that the word “Monopoly” had become generic, because purchasers associated the name with the product rather than with the source.7 Specifically, evidence showed that purchasers of Monopoly were motivated by their knowledge of the game, and not by its association with Parker Brothers. Directly as a result of this case, Congress amended § 14(c) of the Lanham Act, which addresses cancellation of a registered mark, later that year. Congress added language clarifying that a mark becomes generic only if its “primary significance . . . to the relevant public” is as the generic description of the particular goods or services, and that purchaser motivation is not used as the test.
---
There are clones of Monopoly because the patent expired long ago and the trademark was lost in 83. ... Which is also why McDonalds did its Monopoly game in '87.
> Which is also why McDonalds did its Monopoly game in '87.
Are you saying McDonald's needed to wait for the trademark to expire? Or that they had to wait for a new trademark to be established? Wasn't the promotion collaborative?
Looking at McDonald's Monopoly commercials from 87 [1] and 88 [2], there's a Parker Brothers TM in both years.
The Parker Brother's trademark they had to license... probably to get specific imagery. However, the suffix "-opoly" as it refers to games was lost.
McD's probably waited until the trademark on Monopoly was sufficiently weakened for them to go out, license the other parts of it (as it was Parker Brothers(TM).
My understanding is no. Copyright requires human authorship (the case of the monkey selfie found it to be public domain because a monkey did it, e.g.), and code written by a machine is likely to follow similar precedent and be uncopyrightable.
Well if it's your monkey (or program) that generated it (music or art or whatever) and the monkey can't talk, what's to prevent you from copyrighting it?
You can certainly try to copyright it, but if the person who slavishly copies the case can demonstrate that you didn't write it yourself, you lose the copyright protection because you're not the author. There are copyright cases which turn heavily on who the actual author of the work in question is--the Happy Birthday song being perhaps the most famous.
This whole thread could be true wrt the Monkey Selfies, but I am someone else's paid monkey and they can definitely copyright the work I do at work.
So does this case really boil down to the Monkey being free and not owned in that you can't take their copyright away, but you could if you owned the monkey?
I feel like the structure of our civilization is not stable, the focus and balance of capital power, the law and the ecological direction we are headed. I saw this play once and I didn't understand a bit of it.
> This whole thread could be true wrt the Monkey Selfies, but I am someone else's paid monkey and they can definitely copyright the work I do at work.
That is "work for hire." You are the creative author of the code, but since your creativity is being applied at the direction of another, it is that person who owns the copyright instead of you. The Copyright Office has a document to explain how to decide whether or not your work is a "work for hire."
As applied to monkey selfies, it's possible that the human photographer who set the situation up owns the copyright instead, but this wasn't argued in court.
All of the appeals courts that heard appeals in that situation agreed that animals could not hold copyright, and there are no appeals still pending since then. That's pretty settled--there's no courts with binding precedent arguing for animals being able to hold copyright.
(Appeals courts can still settle case law, even if SCOTUS doesn't hear the case. There are several precedents that are set by appeals courts and not SCOTUS itself.)
Since compiled binaries are copyrighted, and this has already been tested in court, I believe the matter of generated code being copyrighted should be pretty clear: yes, generated code is copyrighted.
Look through the contract. Guarantee the installer assigns all IP rights to the client if theres anything else softwarewise going on with the feed, and if not, litigation would probably clear it up.
But a photographer who travels to the beach and sets out a camera on a tripod to capture a timelapse of the sunset DOES have copyright over those photos.
What's the difference if they leave the camera there for longer? They still chose the placement and the angle and the lens. In either case, the camera's electronics are deciding the minutiae of the image acquisition.
>Can you copyright generated things? You probably could copyright the way you're generating it, but I doubt you have a legal standing about the generated text or melody itself.
What would be the difference between a "generated text or melody" you present to copyright, to one you've written yourself?
What would be the mark of "automatic generation" that would be used to identify them as such and disqualify them?
> What would be the mark of "automatic generation" that would be used to identify them as such and disqualify them?
None, but you wouldn't get copyright, much like you can present the works of others as your own but won't actually get the copyright if you're not the creator.
Huh? For one, nothing stops you from saying you are the creator, and nobody would have any way to say you're not.
Second, even if you have used a generator tool, regardless of if you wrote it or just run it, you're the creator of the works it produced, and you can trivially get copyright for it, unless somebody else copyrighted the same work.
Half of Brian Eno's output is generated works, where he sets some rules on a music synthesis system, and lets it create a work. Never had any issue copyrighting them...
> Huh? For one, nothing stops you from saying you are the creator, and nobody would have any way to say you're not.
Sure, just as nothing is stopping you from walking into a store, taking something, and walking out without paying. It's when you get caught doing so that the trouble beings. If you get caught, not only do you not get the copyright, but you've likely committed fraud.
Proving that you're not the creator is another issue, which would probably make for an interesting case.
> Half of Brian Eno's output is generated works, where he sets some rules on a music synthesis system, and lets it create a work. Never had any issue copyrighting them...
That's somewhat different though. Setting rules makes it a predictable process, and you have a one-way system: you set the rules and you always get the same result. A generator that would generate all possible results isn't the same.
If you sifted through all those randomly generated things, found one that you like, and published it, things get fuzzy, I guess. Maybe the curation would qualify as the creative input.
>Sure, just as nothing is stopping you from walking into a store, taking something, and walking out without paying.
Well, there is. If you get caught you get to jail.
Whereas if you get "caught" saying this generated melody is your melody, nothing happens. It's a totally valid thing to copyright. (And even if it wasn't, unlike the store theft case, there's no way for anybody to tell and prove it's not yours anyway).
But in any case, you appear confused as to this.
Whatever tool you can use to create a melody, the melody is still yours to copyright (unless somebody else came with it first and copyrighted it). You don't have to "think" of the melody or write it on the piano, or something.
In fact tons of melodies nowadays are written partially or wholly by compositional tools.
People using those tools have the regular claim to the output melodies, regardless of whether the tool is some DAW utility or "random melody" button (all of which exist), a music synthesis algorithm with some params and seed, or even an exhaustive, minimally creative tool to iterate over all possible melodies.
> There's no rule "you can't copyright a generated melody".
If that was so, then no more melodies can be copyrighted after that group that was also mentioned somewhere else in the threads generated (essentially) all melodies, claimed copyright and then released them into the public domain. Alas, there is, even with people claiming copyright on individual generated melodies!
Again, I think the curation is relevant. You can certainly copyright a book, even though "it's somewhere in Pi". If you endlessly calculate fractions of Pi and check them for something interesting, I'm sure you can copyright whatever poem you find.
>If that was so, then no more melodies can be copyrighted after that group that was also mentioned somewhere else in the threads generated (essentially) all melodies, claimed copyright and then released them into the public domain.
Well, that's true.
But
(a) nobody is going to cross-check their melodies against a new copyright claim,
(b) they are not going to claim infrigement against anyone,
So there's that. And even if they did, they'd be thrown out as a joke-submission (the content being "all possible melodies" etc).
But you can submit hundreds of generated melodies, copyright them, and succesfully sue people for infringing of them. The fact that they were generated doesn't change anything.
Independent copyright when a work was independently created is a thing in most jurisdictions, as copyright covers copying and is not like patents in that regard.
However, that would indeed require a ton more work to prove that you did not copy any of the generated work and truly did create yours by yourself.
> Had the ruling gone in Oracle's favor I can imagine some greedy company trying to procedurally-generate every API and copyright them all
It would have officially mean businesses and the US governments are locked by vendors and have no right to copy API in order to provide compatibility towards other systems.
Making « VendorLocking » legally valid in favor of the vendor.
Not gonna lie I was scared by the outcome of that judgement and the catastrophic defense of Google.
Because of the way this decision went, I’m sure Google considers it a worthy investment and Oracle considers it a temporary setback as it pursues other extortion schemes using Sun’s Patents. I wouldn’t be surprised if they have a specific division of lawyers dedicated to finding novel ways of extorting wealth using Patents; this would likely just be one of the cases they were working on.
Come to think of it, from Oracles perspective it was definitely worth a shot, to throw a few millions (if that?) with a chance of winning billions.
972 comments
[ 0.24 ms ] story [ 426 ms ] threadThe weird thing is it would of hurt Oracle as much as anyone. I have no clue how anyone w/any technical merit didn't understand that this was a footgun of the largest possible magnitude for them.
His reply was “without admitting anything specific, how do you know we haven’t purchased private licenses for anything you just mentioned?”
So you don't quite need a license for the shape of the plug, but you do need to pretend it's not something that it is.
From 2018 (Oracle revives matter via appeal): https://news.ycombinator.com/item?id=16688521
Edit: Fixed, had written "Jury finds for Oracle", which was NOT what happened in 2016. Argh.
What happens after this, more appeals or is this like a proper static const readonly final?
This made me laugh out loud. Thanks
Most recently (that I'm aware of) is South Dakota v Wayfair. SCOTUS previously held that states couldn't impose sales tax on out-of-state companies. Subsequently, many states imposed "use taxes" which are essentially sales taxes paid by consumers on purchases they didn't pay sales tax already to get around this. Colorado passed a law which required out-of-state companies to essentially provide sales tax computation information to Colorado (but not sales tax itself), and Kennedy noted in his concurrence that maybe it was time to revisit the sales tax precedent. So South Dakota went ahead and passed a sales tax on out-of-state companies in direct violation of previous precedent, and SCOTUS promptly overturned that precedent when it heard the case.
The point in this case was, can Oracle overturn the "phone books cannot be Copyrighted" concept baked into tech law by the IBM v Compaq BIOS case. Seems the Supreme Court finally told Oracle the collection of method signatures from the Java base API are, indeed, a phone book.
> Re- viewing courts should appropriately defer to the jury’s findings of un- derlying facts, but the ultimate question whether those facts amount to a fair use is a legal question for judges to decide de novo. This approach does not violate the Seventh Amendment’s prohibition on courts reexamining facts tried by a jury, because the ultimate question here is one of law, not fact. The “right of trial by jury” does not include the right to have a jury resolve a fair use defense.
I'm not a lawyer so I don't know exactly what this means, other than the SCOTUS saying that it can override the jury decision.
It's worth noting that the higher court can reject your appeal. You're not entitled to be seen by the higher court, and if you can't come up with good grounds for why the lower court was wrong, the appeal will be rejected. The Supreme Court rejects a fair number of appeals (I think the majority of cases).
This is final though. There is no higher court than the Supreme Court to appeal to. At this point, the only reason it would change is if the laws change, or the Supreme Court reverses their decision later. It's extremely rare that they whole-hog reverse a precedent that they set, though.
My understanding is that a jury's primary task of deciding on the facts is final. The facts in a case like this seem to me to be things like deciding whether Oracle in fact holds the copyright, and whether Google's copy of the API is sufficiently similar for that copyright to apply to Google's copy.
Now as far as appeals go, you can appeal whether the trial was done properly, such that the jury was able to do its fact-finding job correctly. You can appeal what was then decided based on those facts (e.g. sentencing). You can appeal meta-questions, like whether a particular decision is a "finding of fact" or not to start with.
The question of whether "fair use" is the sort of thing that is decided by judge or jury is apparently somewhat contentious in this case; I just found https://www.law.uw.edu/wlr/print-edition/print-edition/vol-9... describing some of the issues there. Today's decision refers to this as well: it's (c) under "Held":
> (c) The fair use question is a mixed question of fact and law. Re- viewing courts should appropriately defer to the jury’s findings of un- derlying facts, but the ultimate question whether those facts amount to a fair use is a legal question for judges to decide de novo. This ap- proach does not violate the Seventh Amendment’s prohibition on courts reexamining facts tried by a jury, because the ultimate question here is one of law, not fact. The “right of trial by jury” does not include the right to have a jury resolve a fair use defense. Pp. 18–21.
which sure sounds like the Supreme Court effectively decided that the final determination of whether a use is "fair use" or not should be made by a judge, not a jury. Then they proceed to make that determination in this case in holding (d).
The idealized rule is that the jury is the final arbitrator of matters of fact, while judges (and appeal courts) decide matters of law. Ideals don't match reality cleanly, especially on matters like fair use which is "mixed fact and law." But additionally, you can sometimes appeal matters of fact by arguing that no reasonable jury could have reached the facts as it did (these are very rare, as I understand it, except in situations where mixed fact/law comes into play).
Some other points you're missing. First, you have to appeal on particular failures of law; you can't just appeal that you don't like the decision. In particular, if you try to appeal past the appeal court to a higher court, you can only make arguments that you made to the appeal court.
Another important thing is that appeal courts can push the case back down to the lower court to redecide based on clarifying law. That's what happened here, essentially. Google won on the trial, Oracle appealed saying that the judge incorrectly ruled that the API wasn't copyrightable (and the appeal court agreed with Oracle), which told the lower court to try it again with the correct ruling on API copyrightable. Google tried to appeal SCOTUS, who refused to hear it. Lower court had another jury trial, which found Google had fair use. Oracle appealed again to appeals court, which found that the jury couldn't have thought it fair use. Google appealed to SCOTUS, which just now disagreed with the appeal court.
"The fair use question is a mixed question of fact and law. Reviewing courts should appropriately defer to the jury’s findings of underlying facts, but the ultimate question whether those facts amount to a fair use is a legal question for judges to decide de novo. This approach does not violate the Seventh Amendment’s prohibition on courts reexamining facts tried by a jury, because the ultimate question here is one of law, not fact. The “right of trial by jury” does not include the right to have a jury resolve a fair use defense."
Considering that the votes were not close, I don’t think Oracle would try again. Likely they will pursue a substantially different strategy to try and extort Google.
I'm pretty confident that Oracle rolls over on this issue permanently.
SCOTUS altered the interpretation of the law, thus removing the legal justification for why the jury found infringement. Since they did not alter any findings of fact (they did not need to) this ruling is legally fine.
A jury can say you definitely did X, that court's judge can say X is illegal, and SCOTUS can then declare X is legal so it doesn't matter anymore if you did X.
They were then overruled by the Federal Court, which has now in turn been overruled by the Supremes.
It is a change in decision from the appeals court, not a change from the jury's decision.
Now if we only could get the SC to invalidate software patents in general.
If you're big enough and have enough lawyers, there's no reason to license software you want to build on.
https://github.com/JoshCheek/clisp/blob/master/doc/Why-CLISP...
What you could perhaps do is create your own implementation of the readline API distributed under a different license and then claim your program is intended to link against that, but how would you claim that if no such implementation exists? Whereas if you have to write your own readline implementation in order to use it then you still end up with a large incentive to avoid that by releasing your work under the GPL instead.
Can you elaborate on that? What does this have to do with those thing?
If Google can steal the code from the GPL version and then just not obey the license or pay for an enterprise license, dual licensing is dead and no business will open source their code under a dual licensing model.
Please.
They might use the GPL software, but feel no compunction to either open source their own modifications nor pay for an enterprise license.
For that matter, how does that have anything to do with the GPL at all? If you distribute your software under a proprietary license instead, how does that affect whether anyone can reimplement your API? If somebody wants your implementation then they get it under your license. If all they want is their own implementation of your API then your license doesn't matter, does it?
This ruling doesn't change that APIs are copyrightable code.
This decision sidestepped the question of whether APIs are copyrightable or not by declaring that this particular instance was fair use.
Reimplementing interfaces has always been fair-use, they are definitions. Re-Implementation of these interfaces has been a cornerstone of FOSS since its very beginning.
> So if fair use is granted for theft of copylefted code in a non-copyleft manner, it doesn't matter heavily whether that was "declaring code" or "implementing code".
I don't think these words mean what you think they mean. There was no theft and of course there is a difference between declaring code and implementing code.
Shesh...
This is incorrect, before fair use was tested, copyrightability was established, which is why the fair use defense, which is an exemption for copyright violation, was then determined. If you followed the various appeals and rulings this case entailed, you'd have to be aware of this.
APIs are copyrightable, as this case has determined, but now the Supreme Court has also thrown out any reasonable definition of what is and isn't fair use.
Ninth Circuit courts held APIs weren't copyrightable. The Federal Circuit (which only had jurisdiction because of the thrown out patent claims) held that they were copyrightable. The majority of SCOTUS here explicitly said they weren't deciding copyright of APIs. Instead they looked at both cases and said: "either it isn't copyrightable, but even if it is copyrightable, that this is fair use." Either way, Oracle loses. Arguing in the alternative is a common legal pattern, as is ruling on the narrowest possible ground.
Generally when a circuit court makes a ruling, it's only "binding" precedent on subsidiary courts within that same circuit. The federal circuit is weird though, as it doesn't have a geographical jurisdiction, instead it has a subject matter jurisdiction. If a case has patent claims (or a few other things), an appeal gets routed there.
So, effectively, APIs are copyrightable if there is a linked patent claim in the same lawsuit.
Courts can certainly use the Federal Circuit ruling as "persuasive" precedent, and rule the same way, but it's not binding, and it's not settled law.
I suspect the Supreme Court would not be happy if a pattern develops where companies include spurious patent claims in order to get their copyright case heard by the Federal Circuit instead of one of the other circuits. They won't want another mess like this case, and if the Federal Circuit again rules in favor of API copyright and against fair use, I would expect the Supreme Court to rule on the API copyright question directly rather than merely clarify the bounds of fair use as in this case.
The supreme court explicitly refused to rule on whether code was copyrightable or not.
The lower courts made conflicting rulings on that question. But the supreme court itself only assumed, for the safe of argument, that code was copyrightable, and did not rule on that question itself.
Sanity prevailed! This judgment could have had devastating consequences and turned software development into a copyright nightmare.
IAAL but IANAIPL and most emphatically IANYL
The court has to talk about programmer skills because Android (at least, the versions before they switched to OpenJDK) was not entirely source- or binary-compatible with Java SE programs. In fact, the reason why they couldn't license Java SE was that Sun insisted on Android being locked into compatibility in the first place. So this entirely represents an expansion of existing fair use precedent: now, not only does fair use apply to full reimplementations for the sake of interoperability, but also partial reimplementations made for the sake of programmer convenience.
But Google's lawyers (inexplicably, in my opinion) failed to talk much about the fact that many Java libraries are interoperable between Android and Oracle Java, leaving the courts to think only in terms of full applications which are not interoperable. Thus the courts have treated this case as if the only benefit to Android's reuse of Java was programmer familiarity.
Thankfully, Google won anyway, so any defendant in a future case who can make a better interoperability argument will be in an even stronger position.
Edit: For example, in the Federal Circuit ruling that the Supreme Court just overruled, they complain: "Indeed, given the record evidence that Google designed Android so that it would not be compatible with the Java platform, or the JVM specifically, we find Google's interoperability argument confusing. [..Google] points to no Java apps that either pre-dated or post-dated Android that could run on the Android platform." [1]
[1] http://www.cafc.uscourts.gov/sites/default/files/opinions-or...
To argue interoperability Google would have needed to copy the entire JAVA SE API.
The key difference is that Java SE (designed for desktops) API was considered by Google mostly not required on smartphone/mobile devices envisaged for Android. Sun would only licence Java SE complete (Sun was the one wanting complete interoperability).
To the extent the concept of interoperability enters into it, it was on the human side; the arguments were about leveraging existing programmer knowledge to the extent that Android's requirements were shared with and common to Java SE.
Only if Google wanted to argue interoperability as defined by Sun/Oracle. I've never seen a coherent argument why Sun's TCK should be considered the sole authority on what degree of interoperability should have legal significance in this copyright case, particularly given that Sun's TCK was part of their trademark licensing program.
And there are obvious reasons why a court would shy away from letting something like Sun's TCK be used as part of a significant legal test; for example, it's really awkward for legal purposes to define something as copyright infringement while it's a work in progress, but it suddenly becomes okay as soon as it attains the status of being 100% compatible and bug-free. It's also not clear how the law could reasonably handle a definition of interoperability that Sun/Oracle can unilaterally make into a moving target and add arbitrary requirements to.
Well, "dollars / year", if you work in an industry where you can directly A-B test against revenue, but I think most of us are happiest not knowing whether our particular lines of code are EV-positive.
Code bases like kubernetes come to mind for LoC far exceeding its value. Code bases like Quake3 come to mind for LoC that provide tremendous value. Every line is an explicit decision to improve the code or make it worse.
Refactoring a system to be generic and re-usable, for example, would reduce LoC yet provide tremendous value. If I were her manager, would I deduct points for -2000 LoC? Would I praise her for taking copy-pasta and making a pattern? I know which I'd choose.
Aka, that you could clone Harry Potter's plot, characters, and story while not copying each word of the book verbatim, and it still be a copy of Harry Potter.
Would that be a copyright infringement? Probably just trademark infringement at that point?
Copyright attaches to the actual text (illustrations, etc; whatever is “fixed in a tangible form”), not the ideas.
You could write a story about a boy of humble origins who is whisked off to a special school, discovers he’s special, and fights evil. There aren’t that many original plots, after all....
You’ll only get into trouble if the main character is called Harry Potter of 10 Privett Drive, where he resides with his mother’s sister and her awful family, and he later attends Hogwarts, etc.
[1] https://en.wikipedia.org/wiki/Copyright_protection_for_ficti...
The merger and scenes a faire doctrine permit lots of overlap in terms of themes, tropes and set dressing. You could certainly write a coming-of-age story set in a magical boarding school; indeed, Harry Potter is neither the first nor the last such novel. One of the classic cases is Walker v. Time Life. The two works, which were found to be non-infringing, both start with a double murder of two cops (one Black, one white) in the South Bronx, both feature demoralized Irish-American cops, and both have similar tropes (rats, cop-talk, etc). A reviewer might reasonably describe it as derivative (and a few did, I think), but not legally so.
What you probably couldn't do is publish the (non-parodic) story of Perry Hotter and his substantially-similar adventures at Pigworts, though that's also absolutely spoiling for a trademark fight.
Music gets weird because it a) seems like there are a lot of possible note sequences but b) there aren't really.
I don't know if their beef is with copyright vs trademark.
Or in other words, a tiny fraction of the original work would essentially be allowed to monopolize the entire space of works involving magical kids going to school.
(And this is why Justice Thomas is widely regarded as the least competent justice of at least the past half century.)
Presumably the issue would be if one wrote a book substantially about the same character as Harry Potter who went through the same plot events in significant detail, but only 0.4% of the sentences were identical and the main character's name was Barry.
Thomas would allow copyright on code regardless of any creativity. This would destroy the software industry. Anyone who is first in time would monopolize entire swaths of software functionality.
And that is what he wants. Thomas is an ideologue, and his sole goal in allowing the copyrighting of code is to destroy the tech industry, which he views as hostile to Republicans. You can see it in the logic of his dissent, which would require the court to override decades of settled case law all supporting the proposition that code and other functional expression. In order to justify his nonsensical arguments, Thomas is forced to come up with an entirely new category of code that is not supported by legislative history or judicial history. Thomas' only justification for this category is...that it's "not fair" to a multi-billion dollar company that the non-copyrightable portions of their code were copied by another corporation. Pity the poor multi-billion dollar corporation, they just can't ever get a break.
Even he notes that his dissent is nonsensical when he admits "declaring code is 'inherently bound together with uncopyrightable ideas.'
This would sound like a convincing position if the company abusing them wasn't a trillionaire corporation. Oracle is literally "the little guy" here.
This case began in 2010 as Oracle attempting to smother a similarly sized competitor...after Oracle acquired the actual creators of Java.
Personally, I think the best code is the code I don't write.
A significant part of my refactoring, is removing as much code as possible, by tweaking algorithms, deriving common base classes, and removing unused code branches.
Every line of code is a potential bug. The less code, the less bugs.
https://www.folklore.org/StoryView.py?story=Negative_2000_Li...
My favorite was replacing a function call with a single character constant.
Then there were two employers who demanded code proliferation (management incentives tied to KLOCs?). Didn't last long at either place.
(start at 20:05 if timestamp fails).
I also appreciate this fair use argument, especially when you point out the code in question was 0.4% of the entire API.
Still, I'll always struggle with the idea that "the amount and substantiality of the portion used" when copying an interface is comparable to copying an implementation. The interface is, intellectually, the substantially heavier, "bigger picture" component of the API than the implementation. In my view they are apples and oranges.
So, I'm glad this was the outcome. But I'll always feel like there was something wrong with Googe taking the Java SE interfaces and using them like they did, gratis.
Ironically the most protected APIs may be the ones nobody implements.
I think he's wrong by virtue of some disability to follow the winning argument logically. Clarence is sheer idiot.
https://news.ycombinator.com/newsguidelines.html
One thing I do see happening is that sensitive and expensive to develop algorithm internals may be prevented from leaking into APIs. I, again, don’t see this as anything other than a win for devs. An API is fundamentally used to get stuff done, if a developer doesn’t need to know the implementation details I overall think this is a win for the developer using the API.
Now, how do you let third parties program against that non-public API? Would only showing it to licensees be a legal way to do that?
If so, and if the API becomes popular, I don’t see how to prevent those licensees from leaking the API to the world, say through small code snippets on Stack Overflow.
That would seem a reasonable outcome, for much the same reason that copyright not protecting the appearance of fonts under US law is reasonable. Yes, it is overriding copyright protection for a creative work that would otherwise apply. However, it does so because a greater good is served, in this case by ensuring that interoperability cannot be encumbered, something which (as the majority opinion alludes) goes against the very purpose of copyright under US law.
One could argue that this is for the judicial branch, not the legislative branch, to decide.
Anyone using fork(), stat(), open(), or other basic parts of the UNIX development environment would be in violation.
Those copyrights were purchased by Novell at some point, and I believe ended up with Attachmate.
One would think that the C Programming Language is also covered by copyright via the K&R books, which would put anyone using printf() in the same position.
That is truly a nightmare scenario.
Absolutely, but courts are supposed to interpret the law, not rule whichever way avoids nightmare scenarios.
The risk of going too far in that direction (and this is by no means the first case in which SCOTUS c̶l̶e̶a̶r̶l̶y̶ may have rationalized a decision for pragmatic reasons) is that it makes the court more corruptible. I am glad the majority ruled this way, because I agree that it leads to a better outcome in this case. On the other hand, any departure from a pure interpretation of the law is very dangerous, because it normalizes the more-corruptible mode of operation, and that can lead to another kind of "nightmare scenario".
You should read the law in question. This would be Section 107 of the Copyright Act, which defines "fair use". It's extremely vague and is best interpreted as a set of considerations that the courts should take into account so that they can handle situations like this one on a case by case basis. If Congress wanted to be more prescriptive, they could (ETA: and if they become unhappy with the courts' decisions they still can in the future), but I think that would lead to worse outcomes.
I was really just responding to the implication that SCOTUS did the right thing because "it would be a nightmare scenario" otherwise.
The law also states that copyright's purpose is to stimulate progress of the arts, and that's why fair use is possible. Interpreting the law also means establishing the limits of fair use.
But, still, yes, determining the scope and applicability of fair use is part of applying the law.
Rewriting history the way we do in the context has all kinds of problems associated with it
This is NOT what the Court found. At the very top of the Opinion, it says "we assume, for argument’s sake, that the material was copyrightable. But we hold that the copying here at issue nonetheless constituted a fair use."
Fair use makes sense to me when you're talking about the table of contents of a book. If I take the table of contents of a famous novel and write my own chapters, it makes sense to me that the owners of that book shouldn't be able to sue me. No one is going to read my book instead of Faulkner's. There's no equivalency there.
If I take an API (the table of contents equivalent of software), that's seems totally different, if not the opposite really: the interface is what matters, and the implementation is secondary. If you apply the analogy to a novel, it's as if I took the table of contents of a famous novel, write my own chapters, and it'll be equivalent to the famous novel. My chapters could be slightly "worse", but readers wouldn't necessarily notice a difference between my version or Faulkner's.
But that's kind-of the point IMO - if we take a free-market approach to this, copying (or sort of "standardizing" onto) an API allows for more innovation, since it's not a prohibitive up-front cost to switching the implementation. We don't copyright (or I guess patent, and I know they're different) the user interface of a fridge. Any fridge can have 2 doors and a slide-out freezer, but it's the actual implementation that would matter to a user - how energy-efficient it is, how cold it can get, extra conveniences (maybe akin to API extensions) like a water/ice dispenser that still can be "copied"/used by other fridges. And I'm sure that maybe those "interfaces" were patented originally, but it seems absurd now that they're so commonplace to restrict who can implement them.
I think the same applies for APIs. It's only taking away users from the original implementation if the new one is better.
Honestly, the fact that it's 0.4% is a BS heuristic. What if they spent a year and all they did was refactor the code so that codebase was 1.43 million lines instead of 2.86? Would that mean these lines of code are 2x as powerful?
Lines of code is an indicative heuristic, but not a deterministic one.
...at least I hope that's what they did.
Certainly, the fact that competing encyclopedias exist, and have for hundreds of years, with > 99% identical entry names (but of course, substantively different content), and that predicated not on any given invention or IP but rather the common use English language, would, I think, make the judges rather reluctant to rule differently even should there be 100% match in entries.
I maintain a reflist of women in the ADB who have no Wikipedia article.[2]
1. https://en.wikipedia.org/wiki/Wikipedia:WikiProject_Australi...
2. https://en.wikipedia.org/wiki/User:Chris.sherlock/Australian...
[1] https://en.wikipedia.org/wiki/Eldred_v._Ashcroft
[2] https://www.legalaffairs.org/issues/March-April-2004/story_l...
> Sanity prevailed! This judgment could have had devastating consequences and turned software development into a copyright nightmare.
This judgment is the equivalent of someone taking a movie script, shooting a new movie out of it without changing a word, and the court declaring this "fair use" of the script.
Software development wouldn't have turned into a nightmare unless you decide to steal a platform. Which most people don't need to do in order to do their work.
And it's literally word for word.
Can we be intellectually honest and not lie about the vast amount of work being copied here?
Movie scripts and APIs aren't really comparable as you have presented them.
This decision suggests you could include say, the negative of the neighboring building’s facade so that the two “interoperate” in a sensible way.
While I think it would be GREAT to see what Nick Nolte (Lucas was considering him) would have done with Han Solo over the wooden Harrison Ford, I'm not sure I care enough to sit through it all again to find out. Blech.
...the extent to which the use is transformative. In the 1994 decision Campbell v. Acuff-Rose Music Inc,[13] the U.S. Supreme Court held that when the purpose of the use is transformative ... is more likely to favor fair use.
Ethics aside, as a viewer, it'd be kind of cool if this were a thing. Small-time movie makers might like it too.
In fact, they've become a fannish pastime the past few years: https://www.theverge.com/2017/7/20/16006112/revenge-of-the-s...
I'm ok with either decision, but, depending on how this precedent going to be interpreted, it could have far reaching consequences, maybe unintentional/undesired ones too.
Seems like a net benefit to me :-)
No, it is not a first class ticket to unicorn valuation, but it is trivially easy to differentiate
- from Google by just providing any kind of customer service to all paying customers
- from AWS and GCP just by allowing on premise solutions
- from Facebook by not reliably failing to protect and/or actively exploit your customers all the time
- etc
Need proof? See Slack, WhatsApp and Instagram (before the acquisition), Basecamp etc etc.
GNU/Linux, a free reimplementation of AT&T's Unix interfaces, is largely why commercial Unix isn't really a thing any more.
Also known as compatibility and interoperability. I'm so happy to see that judges understand their importance.
Actually, not really. Both this ruling and the lower courts' rulings in the case operated under the strange assumption that Android was not interoperable with Oracle Java, leaving programmer familiarity as the only reason Google copied the APIs. For example, in the Federal Circuit ruling that the Supreme Court just overruled, they complain that Google "points to no Java apps that either pre-dated or post-dated Android that could run on the Android platform". True; but of course third-party libraries often can run on both Android and Oracle Java, and their importance seems to have been lost on everyone involved in the case... including Google's own lawyers.
Thankfully, Google won anyway, so any defendant in a future case who can make a better interoperability argument will be in an even stronger position.
It’d sure have made the practice of taking someone else’s API and re-implementing the innards a lot more interesting:
https://docs.oracle.com/en-us/iaas/Content/Object/Tasks/s3co...
A: some of those suits are still ongoing, and
B: the suits never alleged infringement based on the API alone, SCO was claiming that Linux copied functional code in multiprocessing modules (we don't know which functions because they demand secrecy, even though it's open source).
Not even SCO, trolls that they are, were insane enough to claim that the APIs themselves are copyrighted.
Based on this court decision, it's apparently fair use to lift someone else's API and use it to jumpstart programmer familiarity with your product, if the author of the API previously tried to achieve success in that narrowly-construed, retroactively-interpreted exact same market segment and wasn't very successful.
I see a few things coming out of this. IP holder companies will become even more common: they will be used to hold copyright to one API and license it out to customers -- including independent companies that you would currently recognize as part of the same platform.
But because the IP holder does not provide an implementation and therefore does not 'compete' in a market segment, any unlicensed use of it is necessarily infringing: there's no innate functionality with which one can interoperate under the doctrine of fair use.
Not after this precedent, which says that APIs are free.
What will happen: Intel licensing the i86 instruction set will not be possible from now on, same for ARM.
Patents are what are generally what is used by Intel, etc to protect (and license) new CPU instructions and provide protection for novel ideas/inventions for up to 20 years.
Copyright generally protects specific expressions/implementations of an idea and last up to 95 years for corporate patents, or 70 years + the lifetime of the author for individual patents.
For completeness there is also trademarks which cover names and logos which can last indefinitely, as long as they are in commercial use.
The text of a CPU instruction specification would be covered by copyright, the algorithm for implementing the instruction by a patent, and the branding (ex: MMX) by trademark.
I fail to see why an ISA is fundamentally different than a standard library.
As GP said, the difference is whether it's patented. If Sun had patented parts of the API (or algorithms necessary to implement it), then Oracle would have another weapon against Google even after Google was granted a fair-use defense.
I could understand Intel having a CPU patent for specific CPUs, but an specific ISA?!
A really interesting test case would be to implement an isomorphic encoding to x86 with same instruction widths and what-not such that it's trivial to convert binaries from one to the other, and modify compilers (especially the JIT ones).
No, it doesn't. It says the "fair use" doctrine covers copying an API's "task calling" system, i.e. nomenclature and ontology.
The copyrightability of APIs will have to be determined.
On the plus side though, they only get 20 years of protection. x86-64 in it's original form should be up for grabs pretty soon here.
It seems to me the judge is saying, “the house was full of 10 tons of jewelry but the robbers only took 10 pounds so that isn’t really stealing lol “
> Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment.
Perhaps the measurement should have been a count of bytecode instructions rather than lines of code.
Under the fair use doctrine, maybe. Fair use in the US is literally about being able to use "limited" parts of a copyrighted work without getting permission from the copyright holder. What is "limited"? It depends, but 0.4% could reasonably be called limited.
> It seems to me the judge is saying, “the house was full of 10 tons of jewelry but the robbers only took 10 pounds so that isn’t really stealing lol “
Copyright and fair use apply to the creative substance of the work (in your example, the design on the jewelry, perhaps), not to physical instances of it (the actual pieces of jewelry in the house).
The class of actions classified as fair use describe situations where arguably society can loosen the reigns to substantial benefit to society without destroying the incentive to create.
A classic example would be quoting books to discuss them. The free exchange of ideas greatly enriches society while encouraging not replacing readership.
Reducing it to an analogy to physical property obscures instead of enlightens because it misses all the ways a copyright is different than a right to physical property.
I _hated_ Scalia while he was on the bench. I fundamentally disagreed with him on a significant amount of his opinions.
Their actual opinions though are of such a different quality to me. Scalia's opinions I could absolutely follow the logic, and at times I found myself sometimes dispairing as I became convinced he might be right on an issue. Essentially, Scalia's logic usually felt on point to me, we just had deep axiomatic differences in how the law should operate and how the constitution should be applied to laws.
Thomas, though, I sometimes have a hard time understanding the argument he's presenting, and sometimes have a "how do you even believe that" reaction to his opinions.
Again, I think I disagreed strongly with Scalia opinions about as often as I do Thomas opinions, I just think they were for very different reasons.
This is EXCELLENT news for anyone in software development. Yay for Fair Use.
The Court is apparently not familiar with much of my code :)
"But as long as your system isn’t heavily over-provisioned, you can expect to see average GC pause times of around 0.05ms (50µs) and max pause times of around 0.5ms (500µs)." https://malloc.se/blog/zgc-jdk16
The ART features are not exposed to the language design. The JVM features in addition to the order of magnitude performance impact it will have (cf previous comment) needs to be supported in order to maintain interop with future JVM languages versions. (cf previous comment)
It's good and healthy for a language to have multiple implementations no it's much healthier to have one that reap most of the benefits through collaboration. Hence why Android try to merge its patchset in the Linux kernel instead of duplicating it's million commits.
Sure, HotSpot might have some features ART lacks, but ART has features that HotSpot lacks, so it's a wash. Technical excellence unfortunately isn't an obligation. Or at least until the system becomes unsustainable (Cf interop) but then when it comes it is too late.
It's great for software, it'll be an interesting documentary someday. And congratulations to all the lawyers for making a ton of money.
This case involved copyright, not patents. Copyrights are separate from patents.
https://en.wikipedia.org/wiki/Google_LLC_v._Oracle_America,_....
Prenda made its money by suing people who allegedly downloaded pornographic films online. Its targets frequently agreed to settlements worth a few thousand dollars rather than facing a courtroom process. These copyright trolling tactics netted the company more than $6 million between 2010 and 2013.
https://arstechnica.com/tech-policy/2019/07/prenda-law-porn-...
If his strategies had ended up a valid, legal option we would absolutely see trolls expanding into this. John Steele was testing the waters and got eaten by the deep acting as a warning for how not to go about this.
There's some DMCA takedowns and such still, but they aren't quite lucrative enough to show up on patent trolls' radars. Aquila non capit muscas and what have you. A several billion dollar copyright claim like Oracle's passing SCOTUS muster absolutely would have shown up on their radar though.
Prenda is an example of how misuse of copyright is already in the trolls' toolbox.
Since you think about this stuff you might find the latest on the Santa Cruz Operation interesting:
https://arstechnica.com/gadgets/2021/04/xinuos-finishes-pick...
Xinuos is the company that purchased the remnants of the SCO Group in 2011. The SCO Group, in turn, is a company most famous not for its actual products but for its litigation against IBM and Linux. That litigation began in 2003—partially funded by a very different Microsoft, only five years after the leak of the Halloween documents in which Microsoft acknowledged the "long-term viability" of open source software and discussed strategies to choke it out of the market.
Or prevent them from eradicating competing or even original projects by doing hostile rewrites or forks?
Wouldn't this directly contravene the findings in this case?
Java was a mobile OS before Android literally obliterated the market after copying Java. Arguably, if Android was fair use, everything is fair use and all software copyright is fundamentally defeated by this ruling.
He complains about the names of functions being "expressive content". Yeah, "max" and "toIndex" are real expressive.
Also, what the hell is this logic?
https://twitter.com/KardOnIce/status/1379080086880665606/pho...
The English common law system relies heavily upon judicial precedent. A ruling in this particular case that the copying of an API constitutes fair use will inform decisions in future cases of similar copying.
"Congress rejected categorical distinctions between declaring and implementing code. But the majority creates just such a distinction. The result of this distorting analysis is an opinion that makes it difficult to imagine any circumstance in which declaring code will remain protected by copyright."
I concur with Thomas (not in the connotation - he thinks this is a bad thing, I do not - but in the denotation). This ruling is such strong precedent that almost any API cannot be bound by copyright that no company is going to be willing to spend the money to raise the question.
In this particular case, Google's copying of interfaces was ruled to be fair use because its purpose was to allow Java developers to reuse their skills. This reasoning only holds for the declaring parts of the copyrighted work though. And that's why the distinction becomes necessary even if Congress rejects it as a primary distinction between copyrightable and non-copyrightable work.
That's also why I think the ruling is perhaps not quite as broadly applicable as some (including Thomas) are thinking right now. It may not cover code that isn't used by a significant number of developers. I haven't read the entire ruling, so I'm not sure whether it covers non-public interfaces that are nevertheless useful for interoperability. Such interfaces were at the center of past disputes (I think Microsoft's SMB protocol was one such case).
Open source code is still usually copyrighted. Nobody would trust closed languages and APIs unless they paid a fortune for them while open source with a grant would be safe to use.
In particular, social-media aggregators (one app to display your Twitter, FB, Instagram, etc.) may have new protections.
https://en.wikipedia.org/wiki/Google_LLC_v._Oracle_America,_....
The first phase of the case lasted from 2010 to 2015. Oracle successfully established that APIs are copyrightable, but their claims of patent infringement were rejected. Google petitioned the Supreme Court in October 2014 to review the case, but this was denied. A second petition by Google in January 2019 included the judgement that APIs are copyrightable. The Supreme Court agreed to review this part of the judgment in November 2019.
To the degree that SCOTUS has found that an API can be copyrighted, there is still room for copyright trolls to operate.
But what can we expect from the fine folks behind Citizens United?
Whenever this case came up on HN people outright refused to acknowledge that one’s intentions even mattered when copying an API.
How would "beauty" be defined here. In the context of copyright, it would seem to apply to aesthetic beauty, but I'm not sure that applies to code (despite all sorts of engineers using the metaphor for theirs or others work).
Similarly, though a mechanical engineer might describe a particular gearbox design as beautiful doesn't make it copyrightable, since it's fundamental purpose is also not aesthetic.
Contrary opinions are welcome but need to come with substantive information. Contrarian comments that just go "nyah nyah nyah" at the majority end up having the same effects as outright trolling. It's tempting to do that, because it's frustrating to be surrounded by opponents (which is what holding a minority view on the internet feels like). It's part of maturing as a commenter to resist the urge to lash out in such situations—which is in your interests not to do, since it only discredits the minority truth even further.
Past explanations about this:
https://hn.algolia.com/?dateRange=all&page=0&prefix=false&qu...
https://hn.algolia.com/?dateRange=all&page=0&prefix=true&sor...
We reach the conclusion that in this case, where Google reimplemented a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, Google’s copying of the Sun Java API was a fair use of that material as a matter of law.
Also, while I hate to just repeat things that have already been said, I feel compelled to say
"What a relief!"
because this would have been a complete disaster if they had gotten this decision wrong. In fact, I'm not sure "complete disaster" is a strong enough phrase to reflect what it would have meant for the software industry if this had come down the other way. So getting this looming disaster out of the way is a tremendous relief.
Google implemented exactly enough to create the illusion of letting people use their Java talents then dragged their feet with a half broken out-of-date language environment.
And they did all this to save money, not some sort of noble rebellion or clever hack.
> Sun offered a licensing deal of between US$30 and 50 million. Schmidt said Google would have paid for that license, but they were concerned that Sun had also requested some shared control of Android along with the fee.
A pittance for Google but that vague "some control" sounds really bad right? Well fortunately there's a history here and we know from past licensing deals (J++) this control is enforcing interoperability with other Java implementation. And of course Oracle spells that out pretty easily:
> Oracle states that Sun refused because Google’s intention was essentially to fork Java to a Google version of the language, and to prevent it being inter-operable with other versions, an idea which was “anathema” to the “write once run anywhere” basis of the language.
Google got a cheap license and the only stipulation was "don't fuck up the Java ecosystem by having your OS run Java-but-not-really" but that was too much for them and exactly what they ended up doing!
I don't know why people are acting like this is some victory of open source. Maybe a victory for open source, but championed by a greedy corporation that fragmented the Java ecosystem for years.
I wish Oracle could have taken another angle here, they deserved damages from Google for this. Google literally pulled a J++ and got away with it.
I don't know that anybody is saying that Google did anything specifically Good or Just or Noble or anything. The celebratory aspect is more based on all the Bad Things that would have happened in the future if this decision had come down in favor of Oracle.
And I've seen plenty of people paint Oracle as some evil boogeyman like this is some good vs evil struggle.
Oracle wasn't trying to make Bad Things happen. They were seeking damages from a damaging situation, and if bad things had happened... I'd blame the patent trolls and judges that enable them.
Their insanity continues regardless of the verdict after all, and there are plenty of otherwise reasonable takes ruined by their existence.
I didn't say they were.
They were seeking damages from a damaging situation, and if bad things had happened... I'd blame the patent trolls and judges that enable them.
The issue at hand is about copyright not patents.
And note that I'm not saying that nothing bad can, or will, ever happen again. I'm just saying that the consequences of this decision coming down the other way would have been Very Bad, which makes the current decision a Very Good Thing in general.
Please read the comment again, slowly.
You're saying "I've only seen people say we avoided very bad thing"
I'm saying that's simply not the case, plenty of people are attaching some sort of morality to this.
Edit: Case in point, the other reply to the comment is now one of those people.
And patent trolls and their sympathetic judges are 100% the same people who would have frenzy fed here, many of then (most?) are also copyright trolls in the context of software. In case you didn't know.
“Don't anthropomorphize the lawnmower.”
But people were upset the lawnmower tried to take the hand at all
Google started out with the stated intent to not be evil but now they're allowing that possibly and are making good progress.
It would have become MUCH more dangerous to provide an alternate implementation of someone else's library or interface, which I believe would have have a profoundly negative effect on the entire software industry.
As it currently stands, APIs absolutely fall under copyright laws.
Yes, but now there is a very strong precedent establishing the idea that copying those copyrighted API's is OK anyway (under Fair Use) under at least some circumstances. And based off the way the SCOTUS decision was worded, it strikes me (admittedly, IANAL) that the set of circumstances that are captured by this are pretty large.
This opinion doesn't say so.
"We shall assume, but purely for argument’s sake, that the entire Sun Java API falls within the definition of that which can be copy-righted. We shall ask instead whether Google’s use of part of that API was a “fair use."
And even in this, they rather go with the easier fair use claim that is case-by-case.
Given the countless and fundamental APIs that are typically used in any program, do you not think that is a Bad Thing?
Given that most programmers have assumed that to not be the case, it would be very bad for existing code at the very least.
Also, given most programmers’ assumptions, I would not base much on that alone :D But IANAL, so do ask one, to be safe.
Google never promoted Dalvik as being a licensed Java VM implementation and never claimed it was a compatible Java runtime. The license was for logos and trademarks. As long as they didn't use those logos and trademarks, there's no violation of the license for those things. The API case is based on copyright, not trademarks or licenses so is a separate issue.
This is why Microsoft could lose their dispute with Sun over the MSJVM which was a non-compliant JVM implementation, but still come out with J# which was an implementation of the Java language running on .NET.
Microsoft licenses the Java trademarks and claimed the MSJVM was an implementation of the Java runtime, while breaking compatibility requirements for the license. Therefore they were in violation of the license. The .NET platform was never claimed to be anything to do with Java, so having Java code run on it in the form of J# was fine. The situation with Google using the Java language running on Dalvik is exactly analogous.
The license included using Java's name and trademark and that was for Sun's benefit, not Google. Google wasn't asking to call it a Java phone. That's why part of the testimony is actually Sun saying they'd pay for that
And the rest of your comment is completely missing the mark here.
You're saying MS was in the wrong with J++ because they licensed Java.
I'm saying MS was in the wrong because saying you're using language X then randomly not supporting parts of that language is a shitty thing to do when you have a large presence because then you start to fragment the language's user base.
Copyright be damned. (Which is exactly why I said I wish they could have taken a different angle)
-
Logo or no logo, for years Google said you program Android in Java.
Their "Java" did not track the language everyone else knows, using a strange smattering of features from 6 and 7 in this weird hybrid that hobbled along.
As a result there was plenty of confusion among developers about what worked on Android. As someone who has mostly held day jobs that involved Android for a decade or so now, I can confidently say it was problematic and Android dragging its feet while being such a large platform caused people to avoid using language features.
When Lambdas first landed for example, I remember multiple projects refusing to use them since there was no official way to support them on Android (retrolambda which was written by a former coworker of mine addressed this)
This is so simple, Android should have licensed Java, created a compatible implementation, and kept it up to date. Would it have been hard? Yes. Would it have been better for Android developers who ended up using wonky work arounds, people learning Java and dealing with two sets of rules, and the Java ecosystem as a whole? Also yes.
Like in Java 7 days Android didn't support NIO, randomly didn't support certain forms of exception handling, had random holes in library support (core Java libraries mind you, not the sun stuff)
The odds you could take a random XML parsing library for example and use it in an Android project were low. Random namespaces would be missing, cryptic errors tied to missing language support, the works.
Like you realize the idea of having a kinda-almost-the-same language being damaging is already known. J++ was not the same set of circumstances, but it shows that yes, you can make a language similar enough to benefit and at the same time be different enough to damage.
I mean literally QNX had better support through some vendor we were using at the time, but somehow Google couldn't do better?
Not supporting random parts of a contract programs rely on to function makes your platform incompatible. Especially when you claim support for an update but then randomly cut out parts of the functionality.
In what universe does incompatibility somehow require... adding "things"... like what?
I don't have much patience for people so out of their depth they don't understand the table stakes for a meaningful conversation on a topic.
So a computer program instructs processors to do things while books do not necessarily instruct neurons to do things. This seems like a leap. I could write a book with NOP for every word or I could write a program with NOP loops. Are these really instruction to do things? Like so, books do instruct people (aka knowledge).
"Google’s limited copying of the API is a transformative use. Google copied only what was needed to allow programmers to work in a different computing environment without discarding a portion of a familiar programming language. Google’s purpose was to create a different task-related system for a different computing environment (smartphones) and to create a platform—the Android platform—that would help achieve and popularize that objective. "
...
"Here the record showed that Google’s new smartphone platform is not a market substitute for Java SE."
...
"Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment. "
...
"the Court concludes that Google’s copying of the API to reimplement a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, constituted a fair use of that material as a matter of law. "
If the un-italicized is the new test, that's probably the most reasonable thing I'm going to read this month. And it's only the 5th.
"The fair use question is a mixed question of fact and law. Reviewing courts should appropriately defer to the jury’s findings of underlying facts, but the ultimate question whether those facts amount to a fair use is a legal question for judges to decide de novo. This approach does not violate the Seventh Amendment’s prohibition on courts reexamining facts tried by a jury, because the ultimate question here is one of law, not fact. The “right of trial by jury” does not include the right to have a jury resolve a fair use defense."
Or to put it another way, convincing a jury that something is or isn't fair use is very different than convincing precedent-bound judges, especially with this on the books as the controlling case.
In final impact, it seems like an incredibly good judgement for everyone: you can prove to a jury what was / wasn't copied, and then a judge will apply a standard fair use test over those facts, with a tendency towards allowing transformative use.
Legal protections against copying, room for progress, and (most importantly!) more certainty and standardization in how cases are decided.
Emily Barnet, 2020, Yale (2015)
Diana Li Kim, 2020, Yale (2017)
Arjun Ramamurti, 2020, Yale (2018)
Daniel Richardson, 2020, Virginia (2018)
Brittany Jones-Record, 2020, Stanford (2016)
David Scott Louk, 2020, Yale (2015)
Elizabeth B. Deutsch, 2021, Yale (2016)
Joel F. Wacks, 2021, Chicago (2018)
[1] https://en.wikipedia.org/wiki/List_of_law_clerks_of_the_Supr...
In other words, the clerks do the work of researching and fleshing out the finished opinion, but I don't think they have much influence on the rationale used to decide the case. I've heard stories of clerks having to write opinions they personally disagreed with.
I'm biased, but I don't think the technical elements of this case were challenging to an intelligent layman. I think most people smart enough to become judges can understand the concept of an interface that is independent from an implementation, which is all this case really required, along with quantitative estimates of the amount of code involved. So I doubt that he needed clerks to understand any of it.
By the very nature of the court's operations, the justices cannot be writing the 30 page opinion and doing all the research on every case. The clerks are the ones who will be writing most of the summary, determining how certain cases influence the current case, and laying out the draft logic. They'll have many sessions with the justice to test the logic and find edge cases, implications, and make sure that a decision affecting millions of people is sound. Basically debate and draft/redraft the opinion (with other justices + clerks as well) based on what they're finding as the drafting continues.
I would say the clerks are indispensable to the creation of the opinion's outcome.
Does this mean that companies copying the S3 API as a substitute for S3 are still untested territory?
My impression is that this is probably nuanced enough we need to read past the syllabus if we wanted to really unpack the reasoning. I can't tell which is the key part from which to make an analogy.
https://news.ycombinator.com/item?id=26701488
One could imagine an opinion supporting the same decision with less clear or precise language. As I understand the process, the opinion was frequently reviewed and advised by Breyer, but actually written by one of the clerks.
If anything, they are even better with age at not getting confused by increasing technical detail of our API era, and making sure that the principles of law cut through that. (and how to structure a decision so it's clear to everyone)
If you relied on a tech-heavy decision to be made, this would not be a Supreme Court issue.
The way that the Court and every one of the justices work is that he/she will draft out with the clerks the broad principles and approach that he/she wishes the decision to be crafted around. Which cases influence the precedent, which regulations take what role in the decision, what issues to "turn" the case on, etc.
It's the job of the clerks then to go research, summarize, and create the bulk of justice's position based on knowledge of the details. They (justice + clerks) then review and talk about the evolving draft opinion several times over the course of months, circulating drafts to the other justices (and their clerks) as well. And note, most of the facts/issues already came up in the lower courts cases and rulings, so there has already been some fair surfacing of the details of the dispute (and what other judges believe the important issues to be) as it made its way through the system.
The justices have many opinions per term to do this for, and you can be very sure that while the "authoring" justice has been briefed on (and very well has tested the ideas with the clerks in detail), the summary of how APIs work and their legal status is not based on the justice him/herself wading through license agreements and "figuring out" the structure of the code or its legal status.
So, that is not to say that the justices are ignorant of the details (far from it), but the level of detail needed to form the groundwork of the opinion is heavily shouldered and created by the law clerks. But the main conclusions of the opinion are definitely of the justice him/herself (with input from the clerks).
-- By the way, the clerks (you may not realize) already have had a role in getting the case even to be heard before the Supreme Court, in briefing and summarizing the underlying appealed case on why it should be ripe for a decision, so they already many of the issues at stake and how to think about them.
Maybe think of it like a software engineering manager and the individual developer. The manager can lay out the principles by which a certain piece of code is to be written, and the capable developer will identify all the issues, test cases, etc., and they will review it together at various stages. You would not say that either could have done it without the other. It's kind of like that (when software engineering works like it should).
Well that nukes it. The courts took how long to identify this precedented principle? It seems like the rest of the opinion is just there to ward off more of this tomfoolery for people that don't get it.
Obviously this is copyright vs patent law but it goes to establish that there's been a big problem with the lower courts on "computer laws". It's a nexus of the problem with jurisdiction-shopping (finding a lower court that wants to keep lots of cases coming in and is willing to pump out questionable decisions to do so) and just the legal system being about 30 years behind the times in general in terms of understanding computers and how innovative a particular idea may be.
Breyer also has a brother who was a District Court judge in the SF Bay Area who's undoubtedly had to deal with various tech cases. Not saying there's any kind of shared knowledge of tech within the Breyer family but just kind of interesting.
What you will likely see is in a couple years, one or two of the clerks start to appear as law professors or judges involved in such cases.
No legal question is resolved for sure until it reaches the Supreme Court, but most cases never make it there, instead being resolved by lower courts applying higher courts' precedents.
[0]: https://www.jstor.org/stable/1339714?seq=1
The great sigh of relief I was unexpectedly gifted this morning upon seeing this at #1 was a nice surprise. Very important precedent, good job.
So the opinion effectively preserves the status quo in the software industry while sidestepping the question of API copyrightability.
* Google’s API copying can’t be fair use if they weren’t copyrightable in the first place.
* If you do copy an API because of it’s beauty and not for either interoperability with software or interoperability with developers then it seems that you would run afoul of copyright.
That's why I said it partly moots the issue, not completely. Yes, you could conceivably still run afoul of copyright in some cases, but at first blush, this seems like a precedent that will make it very unlikely that that would happen. I guess time will tell, but that's my initial perception. IANAL, of course.
So don't do that?
Why would you copy an API save to be inoperable?
If it's just to duplicate someone else's design, I think I'm okay with that potentially being a copyright violation.
What downside am I missing?
"We shall assume, but purely for argument’s sake, that the entire Sun Java API falls within the definition of that which can be copy-righted. We shall ask instead whether Google’s use of part of that API was a “fair use.” Unlike the Federal Circuit, we conclude that it was"
Sun Microsystems was acquired in 2010... I guess I should give Thomas the benefit of the doubt that he intended the statement to apply to Oracle's owned IP & not be a historical account of the language's creation and creators, but this rubbed me the wrong way.
This doesn't make any sense. Justices vote in the majority while disagreeing with part or all of the majority opinion all the time. The mechanism for complaining about the majority reasoning is the same in either case: you write a separate opinion detailing your personal analysis of the case. That opinion is called a "dissent" if you voted against the majority and a "concurrence" if you voted with the majority.
There is no concept of "the dissent". Any dissenting justice is free to write one; it is routine for one case to have multiple dissents.
If you write a separate opinion while voting with the majority, that's a "concurrence", not a dissent, and those aren't mandatory either.
In this case it's "Hey, it's Oracle's code, end of story."
I noticed this when I started rereading the dissent with a s/Oracle/Sun Microsystems/g. I felt a bit more swayed when I started to recollect all my fond Sun memories: blogs, hobbyist customer experience, etc. and stopped thinking about my glowing hatred of Oracle.
The dissent does seem nuanced to me even though I am quick to dismiss it based on the premise and my superior technical knowledge and maybe a bit of my own biases that I can't quite completely ignore.
That is true.
> The only way things could change now is if Congress/President passed a new law
That isn't true at all; the Supreme Court is free to change the law by itself. Someone could sue over the same question and get a different result overruling this one.
https://en.wikipedia.org/wiki/List_of_overruled_United_State...
Actually, I've seen uBlock Origin's font blocker actually break font rendering on PDFs in Firefox in the past (maybe still today?).
https://www.independent.co.uk/life-style/gadgets-and-tech/ne...
In the case of the music project, it was for the protection of the community, but I can imagine such a system being used selfishly for software APIs.
Have you ever used code generation as part of software you have built?
Is there any reason why generated code could not be copyrighted as part of a larger system?
For example, suppose I define a data model for a public-facing API and then generate SDKs in various popular programming languages to interact with the public-facing API.
If I were a major corporation that owned such a public-facing API, then I would expect that the generated SDKs would carry the major corporation's copyright.
edit: Another example of generated code would be the code generated by lexer analyzer generator and parser generator tools such as lex (https://en.wikipedia.org/wiki/Lex_(software)), flex (https://en.wikipedia.org/wiki/Flex_(lexical_analyser_generat...), YACC (https://en.wikipedia.org/wiki/Berkeley_Yacc), and bison (https://en.wikipedia.org/wiki/GNU_Bison).
If you create commercial software that includes YACC-generated code, wouldn't the generated code be copyrightable?
The involvement of actual human creativity is required for a work to be copyrightable.
So human creativity is involved, but is not the direct creator of the SDKs. Does that count? I am not really sure.
I bring up the generated SDK example because I have used just such a system when I worked at a major corporation: I created a data model in Web Services Description Language (https://en.wikipedia.org/wiki/Web_Services_Description_Langu...) and used a company-owned tool to generate SDKs in various programming languages. All of the generated SDKs had the company's copyright notice in the generated code.
The code generated SDK is a derivative work of the human-defined data model - just like the binary for any piece of software is derivative of the source code. (Otherwise where'd the copyright for the binary come from?)
The generator's copyright (or the compiler's) doesn't directly flow in. (But if the generator/compiler incorporates pieces of itself, like a support library, that does. Also, the generator/compiler might have terms of use...)
If you write a generator that just generates random APIs, those are basically machine generated garbage and wouldn't be copyrightable. The human input to the generator is missing.
[FWIW, I had to research this due to an "ill-behaved" community member on an open source project a few years back; I'm not completely making this up out of thin air. That still doesn't make me a lawyer though ;)]
I think this is the key statement that will make a difference. If you want to copyright a larger system, generated code is not a problem. If you want to copyright an individual, generated piece of code, I doubt you'll get copyright for that. But IANAL either.
While I'm at it, in a similar vein though entirely unrelated, i sometimes think of ways to create jurisprudence in your favor: You try to emulate a situation to your disliking - e.g. aggresive data hoarding - and file suit to yourself, try to argue the arguments that your target would probably file, but just crappy enough that you actually lose. Do this often and stealthy enough and voila, you might have generated enough jurisprudence to actually file your final claim based on your previous "lost" lawsuits. I do think that this actually does happen at times, though.
https://boardgamegeek.com/boardgame/20311/horse-opoly
The patent for Monopoly is https://patents.google.com/patent/US2026082A/en which expired in '52
There is also issues of trademark on the '-opoly' games... which was settled in '83 with https://www.americanbar.org/groups/intellectual_property_law...
> Finally, in 1983, the Supreme Court let stand an appeals court ruling that the word “Monopoly” had become generic, because purchasers associated the name with the product rather than with the source.7 Specifically, evidence showed that purchasers of Monopoly were motivated by their knowledge of the game, and not by its association with Parker Brothers. Directly as a result of this case, Congress amended § 14(c) of the Lanham Act, which addresses cancellation of a registered mark, later that year. Congress added language clarifying that a mark becomes generic only if its “primary significance . . . to the relevant public” is as the generic description of the particular goods or services, and that purchaser motivation is not used as the test.
---
There are clones of Monopoly because the patent expired long ago and the trademark was lost in 83. ... Which is also why McDonalds did its Monopoly game in '87.
Are you saying McDonald's needed to wait for the trademark to expire? Or that they had to wait for a new trademark to be established? Wasn't the promotion collaborative?
Looking at McDonald's Monopoly commercials from 87 [1] and 88 [2], there's a Parker Brothers TM in both years.
[1] https://youtu.be/F737BVBKMCE?t=4
[2] https://youtu.be/KmV5O06McZk?t=14
McD's probably waited until the trademark on Monopoly was sufficiently weakened for them to go out, license the other parts of it (as it was Parker Brothers(TM).
https://tmsearch.uspto.gov/bin/showfield?f=toc&state=4803%3A...
In particular - https://tmsearch.uspto.gov/bin/showfield?f=doc&state=4803:qp... is likely the one that they're referring to which covers the trademark on the board and game pieces - which is different than the game name.
Also note that many of those (now dead) trademarks were all filed in '85 - '87... after they lost the trademark in '83.
And IANAL, but I think that strategy could fall under https://en.wikipedia.org/wiki/Frivolous_litigation.
So does this case really boil down to the Monkey being free and not owned in that you can't take their copyright away, but you could if you owned the monkey?
I feel like the structure of our civilization is not stable, the focus and balance of capital power, the law and the ecological direction we are headed. I saw this play once and I didn't understand a bit of it.
That is "work for hire." You are the creative author of the code, but since your creativity is being applied at the direction of another, it is that person who owns the copyright instead of you. The Copyright Office has a document to explain how to decide whether or not your work is a "work for hire."
As applied to monkey selfies, it's possible that the human photographer who set the situation up owns the copyright instead, but this wasn't argued in court.
(Appeals courts can still settle case law, even if SCOTUS doesn't hear the case. There are several precedents that are set by appeals courts and not SCOTUS itself.)
A fixed, CCTV feed of a beach with a daily sunset is not copyrightable, nor is a non-human using a photo camera.
The installer or the owner of the equipment?
What's the difference if they leave the camera there for longer? They still chose the placement and the angle and the lens. In either case, the camera's electronics are deciding the minutiae of the image acquisition.
What would be the difference between a "generated text or melody" you present to copyright, to one you've written yourself?
What would be the mark of "automatic generation" that would be used to identify them as such and disqualify them?
None, but you wouldn't get copyright, much like you can present the works of others as your own but won't actually get the copyright if you're not the creator.
Second, even if you have used a generator tool, regardless of if you wrote it or just run it, you're the creator of the works it produced, and you can trivially get copyright for it, unless somebody else copyrighted the same work.
Half of Brian Eno's output is generated works, where he sets some rules on a music synthesis system, and lets it create a work. Never had any issue copyrighting them...
Sure, just as nothing is stopping you from walking into a store, taking something, and walking out without paying. It's when you get caught doing so that the trouble beings. If you get caught, not only do you not get the copyright, but you've likely committed fraud.
Proving that you're not the creator is another issue, which would probably make for an interesting case.
> Half of Brian Eno's output is generated works, where he sets some rules on a music synthesis system, and lets it create a work. Never had any issue copyrighting them...
That's somewhat different though. Setting rules makes it a predictable process, and you have a one-way system: you set the rules and you always get the same result. A generator that would generate all possible results isn't the same.
If you sifted through all those randomly generated things, found one that you like, and published it, things get fuzzy, I guess. Maybe the curation would qualify as the creative input.
Well, there is. If you get caught you get to jail.
Whereas if you get "caught" saying this generated melody is your melody, nothing happens. It's a totally valid thing to copyright. (And even if it wasn't, unlike the store theft case, there's no way for anybody to tell and prove it's not yours anyway).
But in any case, you appear confused as to this.
Whatever tool you can use to create a melody, the melody is still yours to copyright (unless somebody else came with it first and copyrighted it). You don't have to "think" of the melody or write it on the piano, or something.
In fact tons of melodies nowadays are written partially or wholly by compositional tools.
People using those tools have the regular claim to the output melodies, regardless of whether the tool is some DAW utility or "random melody" button (all of which exist), a music synthesis algorithm with some params and seed, or even an exhaustive, minimally creative tool to iterate over all possible melodies.
(Actually some musicians/coders did exactly the latter: https://www.vice.com/en/article/wxepzw/musicians-algorithmic... )
There's no rule "you can't copyright a generated melody".
If that was so, then no more melodies can be copyrighted after that group that was also mentioned somewhere else in the threads generated (essentially) all melodies, claimed copyright and then released them into the public domain. Alas, there is, even with people claiming copyright on individual generated melodies!
Again, I think the curation is relevant. You can certainly copyright a book, even though "it's somewhere in Pi". If you endlessly calculate fractions of Pi and check them for something interesting, I'm sure you can copyright whatever poem you find.
Well, that's true.
But
(a) nobody is going to cross-check their melodies against a new copyright claim,
(b) they are not going to claim infrigement against anyone,
So there's that. And even if they did, they'd be thrown out as a joke-submission (the content being "all possible melodies" etc).
But you can submit hundreds of generated melodies, copyright them, and succesfully sue people for infringing of them. The fact that they were generated doesn't change anything.
However, that would indeed require a ton more work to prove that you did not copy any of the generated work and truly did create yours by yourself.
It would have officially mean businesses and the US governments are locked by vendors and have no right to copy API in order to provide compatibility towards other systems.
Making « VendorLocking » legally valid in favor of the vendor.
Not gonna lie I was scared by the outcome of that judgement and the catastrophic defense of Google.
I’m now relieved !
Because of the way this decision went, I’m sure Google considers it a worthy investment and Oracle considers it a temporary setback as it pursues other extortion schemes using Sun’s Patents. I wouldn’t be surprised if they have a specific division of lawyers dedicated to finding novel ways of extorting wealth using Patents; this would likely just be one of the cases they were working on.
Come to think of it, from Oracles perspective it was definitely worth a shot, to throw a few millions (if that?) with a chance of winning billions.
Teams of high end lawyers over about a decade? Probably at least 10s of millions.
They bought Sun 12 years ago...not much time left to pursue that...
Time to end this one now: https://news.ycombinator.com/item?id=26692575