
Google’s copyright win against Oracle is in danger on appeal - shawndumas
http://arstechnica.com/tech-policy/2013/12/googles-copyright-win-against-oracle-is-in-danger-on-appeal/
======
haberman
I really strongly believe that APIs should not be copyrightable, and I say
this as someone who has spent literally years of my life and creative energy
designing APIs.

I think designing APIs is an art, and I think it is creative. But ultimately I
think APIs are much more like protocols, file formats, or languages than they
are like fixed works. Copyright API documentation all you like, but the day
that people can control who is allowed to speak a language that they invented
is the day that you cede control of everything to incumbents.

What if SCO could really have sued IBM on the basis that they owned the actual
_APIs_ to UNIX? What if you couldn't actually say "#define ENOENT 1" _in your
own project_ without violating SCO's copyrights?

~~~
josephlord
SCO tried but everything had been permissively licensed or had not been
properly treated when you still needed to apply copyright notices everywhere
for copyright to apply.

There is also the counteracting market force that single source illiberally
licensed API's are unappealing to users so in many cases granting rights to
other implementations can be commercially desirable for the creator of the
API. Mono's existance encourages .Net and C# adoption.

Also there is the distinction between copying an API to duplicate it and USING
the API to develop a program against (this would the speaking a language
aspect). I would argue that using the API would never be infringement but
would in all circumstances I could imagine would be fair use.

------
mik3y
I'm really torn on the topic of API copyrightability, and watching this
nervously.

On one hand, haven't we all worked with (or built) APIs which seem remarkable
in their structure and simplicity? The best of the best seem like
unambiguously creative works.

On the other hand, I don't want to work in a world where simply conforming to
an interface specification could be illegal. What a nightmare that would be.

~~~
rayiner
I don't see the big nightmare here. Copyrights aren't a "hidden landmine"
issue like patents can be. It's not like you can accidentally copy an API, and
even if you did, independent creation is a defense to copyright infringement.

Being able to copyright APIs would just mean that everyone would be
incentivized to switch to open-source APIs with clear licensing terms (BSD,
GPL, etc). I don't see that as a bad thing.

~~~
jmillikin
libeditline[1] is a BSD-licensed implementation of the GNU Readline[2] API. Do
you think this should be considered copyright infringement?

[1]
[http://wanderinghorse.net/computing/editline/](http://wanderinghorse.net/computing/editline/)

[2]
[http://cnswww.cns.cwru.edu/php/chet/readline/rltop.html](http://cnswww.cns.cwru.edu/php/chet/readline/rltop.html)

------
cma
Oracle has a reliance on uncopyrightable APIs. If these copyrights were
enforced, they would would have to radically change their SQL semantics to
avoid infringing "copyrighted" APIs from prior SQL databases.

They have also taken APIs from free software and written proprietary
implementations. They would need to release entire huge projects under GPL.

~~~
jlarocco
I don't think either of those things are true.

First, SQL is a standardized language. It's not copyrighted, and has an ISO
standard. Anybody can implement a SQL database and not run into any copyright
problems. They _might_ run into problems if they implemented proprietary
Oracle extensions in their new DB, but even that seems unlikely.

Next, even if APIs are copyrightable, it doesn't imply Oracle would have to
release anything as open source. For one, I'm not sure any open source
projects would sue over it. And even if they did, Oracle could simply stop
distributing the software.

~~~
haberman
> SQL is a standardized language

What does being standardized have to do with it? MP3 and h.264 are
standardized, that doesn't prevent them from being heavily patented. Likewise
being standardized wouldn't prevent an API from being copyrighted.

> It's not copyrighted

If APIs were copyrightable, they would automatically be copyrighted when they
were written down in a fixed form. That's the way that copyright works; you
don't have to take special action to copyright something, it is automatically
copyrighted when you create it. Registering a copyright puts you in a stronger
position legally but it is not required to actually have a copyright.

See the danger now? If APIs were copyrightable, every API would automatically
be copyrighted. Implementing an existing API would be copyright infringement
unless you had a license.

~~~
MichaelGG
Just to reinforce your point: Standard docs are already copyrighted. SCSI
specs and some ITU specs aren't free. Seems that the more niche the standard
goes, the more expensive it gets. (Although if you write your own standard doc
based off an implementation's actions, that should be OK, right?)

------
electrichead
However this goes, I will be sad to see the lack of coverage from groklaw that
made the case so understandable last time.

~~~
belgianguy
I miss it dearly, as I do miss PJ's apt but still readable analysis of complex
lawsuits. It was especially powerful against paid shills or any other articles
that valued money over facts.

I always hoped it'd resume someday, or rise as a phoenix from its ashes. Where
did the community go after the sign-off?

------
nly
> By grabbing parts of APIs, Google took "the most important, the most
> appealing" parts of Java, Oracle's lawyer told a three-judge panel.

... this made me laugh. I find Javas APIs horrific and muddled. Surely not one
of the "most appealing" parts?

~~~
bsdetector
It's not that Java APIs are particularly good, but that they exist and are
massive in scope. Sun put a ton of work into designing and documenting these
APIs, and morally speaking they should be compensated by having some kind of
ownership over it.

If the appeal finds for Oracle I'll laugh... Google at least hastened Sun's
demise by being too cheap to pay for Java, then they were too cheap to buy Sun
when it was for sale. If they end up having to pay Oracle for it, that's karma
at work.

~~~
haberman
> Sun put a ton of work into designing and documenting these APIs, and morally
> speaking they should be compensated by having some kind of ownership over
> it.

And how much work did Tim Berners-Lee put into HTTP/HTML, the Unicode
Consortium into Unicode, the W3C into XML, etc? The Java ecosystem depends
heavily on these and many more. What kind of licensing agreement does Oracle
have with the W3C? If you can own copyright on an API, I can't imagine what
argument you would use to justify implementing a protocol without licensing it
first.

Some parts of the Java API implement APIs that others have designed. Should
Oracle need a licensing agreement with the W3C to implement the DOM?

Some parts of the Java API are thin wrappers around existing APIs. Is the Java
API a derivative work of CORBA? Does Oracle need a licensing agreement with
OMG?

~~~
josephlord
That API's can be copyrighted doesn't mean that they can't be licensed, even
freely.

Tim Berners-Lee specifically granted permission and encouraged people to adopt
the WWW and create their own implementations. The W3C allows people to use its
standards freely too (I'm not sure if there is a formal license grant or not).

I don't know the status of CORBA but it is plausible that Sun/Oracle did sign
agreements to adopt those specifications or that they were properly granted to
all comers.

Sum encouraged adoption of Java but was always specific and controlling of the
distribution of runtimes and development kits. There were always licenses to
agree to and real contracts available to people who wanted to develop their
own Java platforms. They were quite strict on compatibility and what versions
should be supported on what sorts of devices. They did release the JDK under
the GPL. If Google had declared that they were using the GPL licensed code and
were obeying the terms then they would have been entitled to proceed but they
did not do that. They chose to develop the incompatible Dalvik to deliberately
avoid Sun's contractual obligations but still benefit from the API design,
documentation and existing developer experience expensively created by Sun.

~~~
haberman
> Tim Berners-Lee specifically granted permission and encouraged people to
> adopt the WWW and create their own implementations.

> I'm not sure if there is a formal license grant or not

Where is the actual license? If formats are truly copyrightable, then general
"encouragement" is not sufficient, you would need an explicit license, as
every open source project has to allow copying of copyrighted code. Where is
the actual document that says you can use HTML without infringing the
copyright of Tim Berners-Lee or the W3C?

The answer is that there isn't one, because no one thinks that formats
themselves are copyrightable.

> They chose to develop the incompatible Dalvik to deliberately avoid Sun's
> contractual obligations but still benefit from the API design, documentation
> and existing developer experience expensively created by Sun.

Writing books about your technology does not mean you somehow own the
experience that people gain from reading them. Spending a lot of money does
not entitle you to exert however much control you feel you deserve.

"Intellectual property" is a balance between the interests of creators and the
interests of society. Giving first movers complete control over APIs, formats,
and languages that become popular would enable a new wave of rent-seeking,
very much like the patent trolling we see now.

~~~
josephlord
> Where is the actual license?

OK I decided to actually look it up. Here it is:
[http://info.cern.ch/hypertext/WWW/Policy.html](http://info.cern.ch/hypertext/WWW/Policy.html)

"The definition of protocols such as HTTP and data formats such as HTML are in
the public domain and may be freely used by anyone."

So back when originally developed TBL seems to have felt the need to declare
the public domain nature (implying to me that it was NOT an obvious default).

> Writing books about your technology does not mean you somehow own the
> experience that people gain from reading them.

I agree. The creation and design of the API is what allowed Sun to do that.
The documentation is merely part of the _why_ Google decided to copy Java and
many of it's libraries rather than develop their own API or use a freely
licensed one. [Edit: I didn't really mean to agree with "owning the
experience" bit but it does give them some rights.]

> Spending a lot of money does not entitle you to exert however much control
> you feel you deserve.

Agree. Copyright gives specific rights and there are also fair use rights that
should possibly be strengthened.

> "Intellectual property" is a balance between the interests of creators and
> the interests of society.

I largely agree. I would like it the case that I could fully agree but I don't
think that balance currently exists (especially on copyright durations and I
think for software the source should be published or escrowed and then
released when copyright expires). I also don't like discussing "Intellectual
property" as that leads to sloppy thinking and overbroad claims, it is better
to discuss the specific types, patents, copyright, design patents, trademarks
separately. The balance is also set by legislation and the judiciary should
not have that much discretion (although they should have on fair use issues).

> Giving first movers complete control over APIs, formats, and languages that
> become popular would enable a new wave of rent-seeking, very much like the
> patent trolling we see now.

The trade off is the incentive to create and promote new platforms and the
breadth of the right to implement them. For me this is an issue of fair use
and competition law plus market solutions of people avoiding platforms where
alternative implementations are not possible. There is a useful discussion to
be had about fair use rights to copyrighted API's but I'm not sure the
incompatible Dalvik would be fair use even if a compatible alternative was, we
are deep in the grey area here.

I would add as I have in other places that you need to consider how you would
feel if it was old Sun in the Oracle role and MS in the Google role? Would
this not be an egregious case of "embrace, extend extinguish"?

~~~
haberman
> "The definition of protocols such as HTTP and data formats such as HTML are
> in the public domain and may be freely used by anyone."

The _definitions_ : I'm pretty sure this means that you can copy the documents
themselves. This distinguishes it from standards documents by bodies like ISO
where the standards documents _themselves_ are copyright.

Here's another example: in the SCO lawsuit against IBM, why did they not
attempt to claim copyright infringement over APIs? That would have been a much
easier case to make than copyright infringement of the code, as Linux does in
fact "copy" the APIs of UNIX.

Also, as another poster pointed out, if APIs were copyrightable then BSD UNIX
would never have happened.

> The trade off is the incentive to create and promote new platforms and the
> breadth of the right to implement them.

No one would be incentivized to create platforms unless they could lock out
competitors? WINE/ReactOS hasn't stopped Microsoft from developing the Windows
API. Mono hasn't stopped them from developing .NET. Companies that create
platforms get natural benefits from developing platforms: it puts them in a
position of leadership and ahead of everybody else.

> I would add as I have in other places that you need to consider how you
> would feel if it was old Sun in the Oracle role and MS in the Google role?
> Would this not be an egregious case of "embrace, extend extinguish"?

Copyright law is not a tool for preventing anticompetitive business practices.
It's not copyright's job to prevent "embrace, extend, extinguish."

But if Microsoft (for example) decided to implement the Dart APIs as their
development environment for apps on Windows Phone, I don't see the problem
with that.

"Embrace, extend, extinguish" would be if Google took a platform that already
had a J2ME ecosystem and started distributing their own J2ME SDK that was
targeted at the same developers and devices and introduced proprietary
extensions that would make the Google-J2ME apps incompatible with the
Oracle-J2ME apps.

~~~
josephlord
SCO? They did. They just didn't own rights that had not already been given up
by their predecessors.

Check your BSD history. Various actions and omissions of copyright
registration and explicit copyright notices which were then required led to
the BSD settlement.

I didn't say there could be no incentive without copyright but that it is part
of the balance. .NET doesn't support the argument that much though, it could
be seen as a counter reaction to losing the legal action over the J++ embrace,
extend, extinguish attempt against Sun's Java.

I see embrace, extend in a wider way but that isn't a key argument.

------
hypster
Sounds like some jurisprudential butterfly chasing.

I'm inclined to think Alsup's basis of "sequence, structure, and organization"
not being copyrightable is far too broad a change, with ramifications beyond
this specific case. (This is what allows lists, like a phone book, to be
copyrightable, even though the numbers are public).

I'd have thought the reverse engineering exceptions were a more apt basis
[http://en.wikipedia.org/wiki/Reverse_engineering#Legality](http://en.wikipedia.org/wiki/Reverse_engineering#Legality)
However, that's where Oracle's argument about the "fan-base" comes in: it
wasn't purely interoperability between machines that Google wanted, but the
installed base of _developers_. I haven't followed the exact policy
considerations for reverse engineering, but it seems to me that the training
of engineers to work on a particular machine is part-and-parcel of
interoperability (for example, third-party after-market car parts - not only
do they fit, but mechanics already know _how_ to fit them; a more relevant
example is IBM mainframes/minicomputers being copied, where programmers
already knew the platform).

So, the higher court's consideration of the bigger picture may have serious
financial consequences for Google and Oracle. I think Oracle will still lose,
just on a different basis.

It's good to be appellate judge.

------
salient
Unsurprisingly, Microsoft is backing Oracle in this appeal, because apparently
Microsoft thinks that copyright on APIs = good.

~~~
jmillikin
Of course they do. If APIs can be copyrighted, then projects like Wine and
Mono become illegal.

~~~
micampe
_Director of the open source technology centre at Microsoft Tom Hanrahan said
the Community Promise allows projects like Mono to fully support its
technology. “The type of action Oracle is taking against Google over Java is
not going to happen,” Hanrahan said._

 _Microsoft’s Community Promise has made the .Net runtime and C#
specifications available to Miguel de Icaza and the Mono project developers._

 _“If a .Net port to Android was through Mono it would fall under that
agreement,” he said._

[http://www.techworld.com.au/article/358564/microsoft_won_t_s...](http://www.techworld.com.au/article/358564/microsoft_won_t_stop_net_android/)

More at
[http://en.wikipedia.org/wiki/Mono_(software)](http://en.wikipedia.org/wiki/Mono_\(software\))

~~~
MichaelGG
Xamarin actually ported Android to C#:

[http://blog.xamarin.com/android-in-c-sharp/](http://blog.xamarin.com/android-
in-c-sharp/)

And has some cute benchmarks to show off for it.

But go one more level deep: Despite Microsoft's Community Promise, many places
and legal teams will still view a potential threat if MS has a copyright on
APIs used in Mono (not to mention patents).

It's a great win-win for Microsoft. They get to trumpet their PR and gain face
with open source people, as well as deflect some criticism. But they know
it'll still not hurt them as much as if they officially blessed Mono with a
full, proper, transitive license.

~~~
micampe
Sorry, I’ve been trying to be less cynical lately. If someone does something
good I prefer to take it, not dig for nefarious motives.

~~~
MichaelGG
That's probably a great life outlook to deal with individuals and probably
helps your personal relationships. But it seems incredibly naive to give
corporations the same treatment.

Read the actual promise[1].

The promise only covers patent claims from Microsoft on those technologies,
and only if you're not engaged in any patent lawsuit with them. So, if you're
some random company that happens to encroach on Microsoft's territory in
another area, but you happened to use Mono, they can strike at your usage of
Mono due to your work in another area.

Automotive? Health? Entertainment? "Social"? Telecommunications? Advertising?
Resource planning? Imaging/mapping? Security? Aeronautics? Anything related to
computing?

All those and more are areas that Microsoft works on. I can't imagine any
legal team being able to assert that their company will _never_ use Microsoft
IP in any area - it's just too vast.

Example: You use Mono to implement some coordination software for networking
gear - that sounds "safe". Microsoft then publishes research and obtains
patents on their own work on networking (already done) from Azure and MSR (or
they buy some large dead company's portfolio). Microsoft now has IP all over
your area of choice, and as soon as there's any fight, you lose your Promise
over Mono and now have a ton more claims to defend. Oops.

This isn't really even cynicism - it's spelled out very clearly in the
promise.

Edit: In the Google Android .NET issue: Yes, Google can go use .NET for
Android, no problem. Until Google gets in a fight over a plethora of other
patents (say, advertising or other phone related patents). At that point,
Google loses its promise for Mono and MS has a lucrative ground to gain.

Also, copyright issues are NOT included in the Community Promise. So MS still
wins by making APIs copyrightable. They might extend the CP to cover
copyright, but those copyright issues are still there as soon as someone
fights MS over anything else. Totally strengthens MS's position.

As far as .NET on Android - OF COURSE, MS won't "stop" that. That'd be a major
win for MS and hurt Oracle/Java. The .NET port would fall under the agreement,
but I've already demonstrated how quickly that agreement can roll back. Google
adopting .NET is a good technical move, but gives MS a massive advantage.

That said, app developers using MonoDroid are probably reasonably safe so long
the apps they make are of relatively low strategic value to MS. If all of
Google Play's apps were made on MonoDroid, Google would be in a terrible
position.

1:
[http://www.microsoft.com/openspecifications/en/us/programs/c...](http://www.microsoft.com/openspecifications/en/us/programs/community-
promise/default.aspx)

------
iand
My recollection was that the judge in this case pursued a very clever
strategy. There were two questions to be decided: are APIs copyrightable and
did Google infringe. The jury were asked to assume the API was copyrighted and
then decide whether Google infringed that copyright. The jury found no
infringement. Then the judge ruled that APIs were not copyrightable.

So even if the judge's decision is overturned the jury's decision still stands
and there was no infringement.

~~~
Oletros
The jury found that there was infringement.

~~~
iand
In don't believe it did.
[https://www.docketalarm.com/cases/California_Northern_Distri...](https://www.docketalarm.com/cases/California_Northern_District_Court/3
--10-cv-03561/Oracle_America_Inc._v._Google_Inc./1190/)

~~~
Oletros
You have linked to the PATENT ruling, not the COPYRIGHT ruling

[http://es.scribd.com/doc/92725855/completed-verdict-form-
in-...](http://es.scribd.com/doc/92725855/completed-verdict-form-in-oracle-
google)

------
smnrchrds
I thought Sun released most of Java code under open-source licenses years
ago[1]. Are there key parts of Java which are closed-source and only those
parts are disputed? If that's the case it shouldn't be very hard to replace
those parts.

I'm not familiar with the Java ecosystem. I appreciate if you could correct
me.

[1] [http://www.gnu.org/philosophy/java-
trap.html](http://www.gnu.org/philosophy/java-trap.html)

~~~
comex
It's released under GPL, and Google is trying to avoid putting GPL in
userland.

------
jfoster
This is interesting. I think there will be a lot of fallout if they find that
APIs are copyrightable. Until now, I think the industry has been acting as
though APIs are not copyrightable. The next question will be what actually
constitutes an API? For example, are Unix programs like "mv" and "grep" parts
of an API?

------
scovetta
Oracle's "fan base"?

Only a lawyer...

~~~
erbo
Not to mention that it wouldn't have been _Oracle 's_ fan base, but _Sun 's_
fan base. Android 1.0 was released in September 2008. Oracle bought Sun in
April 2009.

Of course, Sun wouldn't have sued in the first place...

~~~
pjmlp
> Of course, Sun wouldn't have sued in the first place...

Yes they would, but were out of money.

[http://news.cnet.com/8301-1035_3-57423754-94/java-creator-
ja...](http://news.cnet.com/8301-1035_3-57423754-94/java-creator-james-
gosling-google-totally-slimed-sun/)

"Just because Sun didn't have patent suits in our genetic code doesn't mean we
didn't feel wronged. While I have differences with Oracle, in this case they
are in the right. Google totally slimed Sun. We were all really disturbed,
even Jonathan: he just decided to put on a happy face and tried to turn lemons
into lemonade."

------
michaelwww
This will only accelerate the development of Dart by Google and push it onto
the Android platform.

------
gaius
You're all talking as if Google are the good guys here. Whoever wins, we all
lose.

~~~
wmf
Why? Is Android so bad?

~~~
pjmlp
No, but Google just played a Microsoft card and took advantage that Sun was
too weak financially to sue them as they did with Microsoft.

