
Let Oracle own API's, Justice Dept tells top court in surprise filing - bcn
http://fortune.com/2015/05/26/google-oracle-api-supremecourt-obama-appeal/
======
badlogic
This advise by the Solicitor General hinges on an interpretation of section
102(b) of the copyright act. That section essentially says that "methods of
operation" can't be copyrighted.

The Solicitor General does not understand that APIs are a formalized
description of "methods of operation" (page 14). I suggest reading the entire
advisory, it's quite frustrating and contradicts itself.

~~~
markvdb
I agree that one shouldn't ascribe to malice what can be ascribed to
incompetence. ("The Solicitor General does not understand...")

BUT!

At the White House level, incompetence equals malice. We have every right to
expect competence from a level as high as the White House.

~~~
RexRollman
Well, these are the same people who think you can safely backdoor encryption.

~~~
harryh
Justice department officials and congressmen are most definitely not the same
people.

~~~
bcg1
FBI is part of the justice dept.

[http://www.fbi.gov/news/speeches/going-dark-are-
technology-p...](http://www.fbi.gov/news/speeches/going-dark-are-technology-
privacy-and-public-safety-on-a-collision-course)

------
meesterdude
> and likened the Java API’s to Charles Dickens and other literary works

Never, could have I ever predicted to one day see that as an actual excerpt
from an article.

By the way, this is a wonderful exercise of effort on our part as a society.
Really very important we sort these these nuances out. People may be dying,
the poor may be getting poorer, but _this_ is what is important. /s

~~~
colechristensen
>By the way, this is a wonderful exercise of effort on our part as a society.
Really very important we sort these these nuances out. People may be dying,
the poor may be getting poorer, but this is what is important. /s

It's sarcastic, I get it, but it is also profoundly stupid. Sorting out
intellectual property and ownership is _the_ 21st century problem as we
continually move away from the importance of physical objects and towards the
importance of pure information.

~~~
iSnow
>Sorting out intellectual property and ownership is _the_ 21st century problem

Uhm, no. Only for the HN crowd and maybe open source.

There are a lot more and more pressing problems that have to do with things
like the environment, food production, reproduction, migration and democracy
vs. corporatism vs. ideology.

~~~
rayiner
It's profoundly important to the U.S. as a whole. Creation of IP is the last
thing that's going to be automated by robots. It's already been tremendously
resistant to production being exported to China and India. We're already at
the point where the primary product of the U.S. is IP in various forms (Apple
designs the computers but they're manufactured in China).

~~~
bediger4000
What do you mean by "IP"? If it's "intellectual property" that strikes me (a
non-lawyer) as a particularly vague and ill-defined concept. I personally find
the idea of owning an idea to be risible: historically, important things have
been invented or discovered multiple times, sometimes clearly independently.
So, why should I as a citizen finance some monopolies that will be
economically detrimental to me and to society as a whole? Seriously. I'm not
pulling chains here. Economists are almost 100% against monopolies (although
they often differ on what constitutes a monopoly), and "IP" is a state-
supported monopoly. Why should we subject ourselves to it?

~~~
jacobr1
> Why should we subject ourselves to it?

The traditional reason is to grant incentive for its creation in the first
place. One primary example has been medical advances. With the benefit of a
(temporary) monopoly on the sales of a new drug, the company has an incentive
to create it in the first place. Perhaps we wouldn't have as many life saving
advances without IP protection. A secondary reason is that it requires public
disclosure. One alternative to patent protection is to keep a production
method a trade secret. So companies, if they are sufficiently secretive, could
have effective if not legally enforced monopolies due to such secrets. So is
it worth the tradeoff of having IP protection?

COST: a time-limited monopoly; limited incremental innovation on derivatives
of the protected work during the lifetime of the protection.

BENEFIT: potentially more innovative goods and services are created to begin
with; the means and methods behind these innovations are publicly documented
for future replication or derivative work .

I'm think it is worth the tradeoff both for copyright protection and patents
in general. But the specific laws are certainly not optimal as currently
written and enforced by the courts. Durations for both patents and copyright
are too long. Plenty of things that are patentable should not be, due to them
being too obvious, trivial, or just not appropriate for protection.

Also the remedy for infringement has multiple options. You could allow general
infringement, at statutory royalty rates. I think Canada has experimented with
this for copyright, and the US as standard (but private) arrangements for the
licensing of music. You could require a fraction of any profits. These provide
the monopoly rents, but not a monopolization of production and derivatives. We
are still learning what the optimal tradeoffs are for society. I hope we have
more experimentation on regulatory regimes to identify the best compromises.

~~~
bediger4000
_The traditional reason is to grant incentive for its creation in the first
place._

Most certainly, that's the nominal, and even in the USA, constitutional basis
of copyright and patents. But the actual implementation over the last 100
years seems to have veered away from creating incentives, and into creating
something naively akin to ownership, with state enforcement.

 _I hope we have more experimentation on regulatory regimes_

Based on the CAFC's decision here, and it's history, we're only going to
experiment with "more" and "stricter" regimes. We've (the USA) never really
experimented with loosening "IP" monopolies, despite data and logic pointing
towards shorter monopolies as closer to optimum.

I'd also have to take exception the "pharmacy has benefitted from long-lasting
monopolies". That's probably true simplistically (When was the last time Smith
Klein Glaxo didn't turn a huge profit?) but in the manner of creating tons of
medicines for The Rest of Us, it seems to have failed. India and some African
countries actually allow infringing compounds, because the price of authentic
compounds is set high. Also, the people of the USA pay way more for
medications than most other countries. This whole topic is subject to
argument, but certainly pharmacy patents relate to high prices and
unavailability.

------
rodgerd
Welp, IT industry had a good run. Time to wrap it up and hand it over to a
couple of companies to run as a monopoly.

~~~
coldpie
Yeah, I don't understand why this is a relatively minor story. This should be
filling the front page of HN, on par with Jobs's death. If this ruling goes
the wrong way, it will end software development as we know it, especially
given the ridiculous length of copyright.

Any reimplementation of an API? Illegal. IBM compatible PCs? Illegal. Any
emulator? Illegal. Binary-compatible reimplementations? Illegal.

~~~
Ygg2
On the plus side, being a lawyer will be well paid.

------
tzs
(Reposting a question I asked in an earlier discussion, where I may have
arrived too late for anyone to see it).

That cases raises an interesting precedent issue that I have not been able to
find the answer to. Let's assume that the Supreme Court decides not to take
the appeal, so the decision of the Court of Appeals for the Federal Circuit
that APIs are copyrightable stands.

What courts is this precedent for?

Generally, the way precedent works is that if appeals from court X go to court
Y, then the decisions of court Y are precedent for court X. If court Z is not
on the appeals path from X, then the decisions of court Z are not binding
precedent for X.

For copyright cases, appeals normally do NOT go to the CAFC. They go the
Courts of Appeal for the circuit in which the court appealed from resides.
E.g., copyright cases from district courts in the 2nd Circuit go to the 2nd
Circuit Court of Appeals.

In general, that is the appeals path from the Federal district court.
Copyright cases aren't specifically singled out.

Oracle vs. Google was tried in the 9th Circuit. If it had just been a
copyright case, the appeal would have went to the 9th Circuit Court of
Appeals. However, it was also a patent case, and patent cases are singled out.
They are explicitly diverted from the normal appeals path and go to the CAFC.
If the case is also some other kind of case, such as a copyright case or an
antitrust case, the CAFC is allowed to hear those aspects too.

So does this mean that if P sues D in the 9th circuit over copyright, with no
patent issues or any other issues that would bring the appeal to the CAFC,
then the district court would only use the 9th Circuit Court of Appeals for
precedent (which I believe disagrees with CAFC), and ignore CAFC's Google vs.
Oracle copyright ruling?

Even more confusing, suppose P sues D over copyright and patents in the 9th
Circuit. The district court figures that the case, if appealed, will go to the
CAFC, and so follows CAFC precedent for the copyright aspects. Now suppose
after the court rules, neither party appeals the court's decisions on any of
the patent issues. The only appeal copyright issues. Does the case still go to
CAFC? Or does it go the 9th Circuit? If it goes to the 9th Circuit, do they
apply their own copyright precedent or CAFC precedent?

~~~
richardfontana
I believe the CAFC decision is not binding precedent for any court. If P sues
D in the 9th circuit over copyright, even if there are patent claims as well
(such that an appeal on a copyright issue would necessarily go to the CAFC),
the CAFC decision in Oracle v. Google is not binding precedent. Of course that
does not mean that the district court would be likely to ignore the CAFC
decision in Oracle v. Google, but in principle it ought to be no more than
persuasive, like any pertinent decision in a sibling circuit.

On the question in your last paragraph, where P sues D over copyright and
patents in the 9th circuit, and there are only appeals of copyright issues,
the appeal goes to the CAFC by statute.

~~~
tzs
On that last part, so CAFC gets the case if it included patent claims, even if
neither party is appealing any of the patent issues?

That raises the possibility of copyright plaintiffs tossing in a patent claim
that they have no intention of trying to actually win on, just to make sure
that they will get CAFC's view of copyright instead of the 9th Circuit's view.

~~~
richardfontana
Yes, the CAFC would get the case.

The CAFC itself would be bound to apply 9th Circuit precedent, as it purported
to do here. Again in principle, a prior copyright decision by the CAFC
applying 9th Circuit law would not be binding precedent on a CAFC panel
hearing some later copyright case arising out of the 9th Circuit.

------
lorddoig
Excuse me, non-American here, but a passage from an article linked within
states[0]:

> The nine justices request that U.S. Solicitor General Donald Verrilli, Jr.,
> the government's top lawyer before the Supreme Court, weigh in on about 20
> cases a year in which the federal government has a strong interest. The
> justices generally give greater weight to what he or she says than other
> third parties that take a side in a case, an influence which has caused the
> solicitor general to be dubbed the "tenth justice."

Question: _what the fuck?_

    
    
        [0]: http://www.reuters.com/article/2015/05/15/google-oracle-lawsuit-idUSL1N0Y32YG20150515

~~~
bcg1
> Question: what the fuck?

American here.

We are aware of the problem, but due to high call volume and a totally
corrupt/captured/entrenched corporate & government bureaucracy, you may
experience long wait times.

------
shmerl
European courts declared APIs to be uncopyrightable.

~~~
gpvos
I wouldn't be surprised if the US tried to sneak copyright for APIs back in
through "trade" agreements like TTIP.

~~~
tajen
... and API copyright would give an excellent commercial advantage to US
companies over Europe, since they have more startups than we have. On the
other hand, my government (France) doesn't do much to help startups [1][2], so
it's only fair that we get invaded by talented foreign companies.

[1] For €1000 sold to a customer, the employee gets a purchasing power of less
than €300, even in the absence of expenses and stakeholder dividends, because
our VAT is 20%, mandatory contributions 46%, income tax 10-15%, land tax
5-10%, and laws are so circumvoluted that the tax accountant takes 45€ per
paysheet per employee and charge about 2000€ yearly to the company. And the
founder gets to spend >10% of his time on the phone with administrations or
filling forms. I know the IRS of USA isn't much better, but I've lived in
Australia and administrations make a difference on CEO time.

[2] I'm aware of that the French government provides benefits for startups
like CRI (Crédit Impot Recherche), which basically funds the PhDs you hire,
but it wastes paperwork pumping money from companies into companies, requires
a person to manage the grant, and isn't socially fair since it advantages
those with a PhD.

I could always blame TTIP agreements for advantaging Americans, but we, French
people, tackle down our own companies on a massive scale.

French people, please don't answer "Hey man the CCI can help you for your
paperwork if you fill in this form and post it to this address and fill the
file they return and the RSI will take a levy of 0,015% for training (truth)
and ... form ... and ... paper ... document... and... minitax... organisme
social... excess... deductible for SMEs if you tick the box 5UV and ..."
Please. I just wanted to hire and code, and the Australian PAYG paysheet is
frigging awesome.

~~~
rtpg
Where is your 46% coming from? Also, you might grossly underestimate how much
of an absolute mess American taxes are to deal with. If you're complaining
about paying your accountant 2000 euros a year...

~~~
sitkack
Taxes are in the same ballpark for all western countries. The real burden
isn't the financial load, it is the complexity. I had a dream that my US state
could take over all forms of taxation and have a single payer system (ha!)
Business, personal, income, property, federal, all of it, one form, filed
electronically and done by the state. Done.

------
caf
Is the logical extension of this that anyone who's written a standard C
library was in violation of Kernighan & Ritchie's copyright?

~~~
WildUtah
"anyone who's written a standard C library was in violation of Kernighan &
Ritchie's copyright"

K&R and Ken Thompson et al. were working for Bell Labs and assigned copyright
to AT&T. AT&T cooperated with early open source programmers at Cal to produce
UNIX software. The negotiations between Cal and AT&T produced a license from
AT&T for UNIX and C as embodied in Berkeley UNIX. Berkeley BSD grants a
license to anyone in the world to reproduce standard libraries and the rest of
the UNIX system.

Thus anyone who writes a standard UNIX library has a solid license chain back
to KR&T for the APIs regardless of the result of this lawsuit.

Now, the BIOS in your PC -- and the billion PC clones produced in the past 35
years -- becomes a criminal offense if the CAFC result is upheld. Quite a lot
of other APIs that have been standardized under the laws as we understood them
for the 50 years before CAFC reversed them soon become illegal forever.

But UNIX and its various flavors is fine.

Python, Perl, Ruby, C++, and C programmers should be fine as will be their
standard libraries.

And we'll all adapt by not using proprietary APIs from now on. You'll have to
be careful about code licenses and API licenses instead of just code licenses.
It's a headache and a large one-time cost to the industry in libraries we'll
lose forever but in the long run it'll be fine for programmers.

The real danger from the CAFC is the way they've been expanding patents. You
can't escape from patents just by getting licenses or not copying others'
work.

~~~
pgeorgi
Still, the BSD license requires reproduction of the license text and copyright
headers (and for a while, advertising on the package). I don't see those in
many C libraries.

------
estefan
Maybe we should change the standard licences - GPL, MIT, etc. - to include a
caveat "free to use without restriction... except by companies known as, or
ever known as, Oracle Corporation"...

~~~
maze-le
There are a few more exceptions, that come to my mind: Military, Intelligence
Agencies and their subcontractors, TBTF-Banks, Disney, Sony ... ahrr and the
list goes on

~~~
lmm
[http://www.gnu.org/licenses/hessla.en.html](http://www.gnu.org/licenses/hessla.en.html)

------
bcg1
"The Congress shall have Power... To promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and Discoveries" \-- Article I,
Section 8, US Constitution
([http://www.archives.gov/exhibits/charters/constitution_trans...](http://www.archives.gov/exhibits/charters/constitution_transcript.html))

This is the exact opposite of promoting progress, and this type of behavior
needs to be overturned on constitutional grounds. This is so far beyond what
the Constitution authorizes Congress to oversee with respect to patent and
copyright law that the specifics of the case are almost meaningless. There is
absolutely nothing to suggest that anyone would stop developing APIs or turn
them into trade secrets unless they can be copyrighted. 40+ years of sharing
and software development prove otherwise.

Time for the Federal Circuit and Justice Department to wake up, or for there
to be an investigation into bribery and corruption in East Texas and DC.
Preferably both.

------
Oletros
And the more ironic here is that Google didn't copy Sun code, they used Apache
Harmony implementation.

The ones doing the copy were the programmers from Apache Foundation

------
maz20
No suprise here --- 1) Google won the first case with Alsup. This demonstrates
that some lower courts can have a better understanding of the law and are
willing to spend time applying logic to these things. 2) Oracle won in a
higher court. At this point, we see a trend that the higher you go, the more
political and less competent the courts get. The DOJ's actions reinforce this
trend too. So, even if it goes to the Supreme Court, we're pretty much
guaranteed Oracle will win that too.

See, the whole problem of this case rests in that you have to "spend time" and
"apply logic" to agree with Google's position. Which, pretty much throws out
any hope of getting a "higher court" (or higher-anybody) to adopt Google's
stance on the issue.

Actually the poster "tajen" pretty much hit the nail on the head for this
issue -- essentially, adopting Google's stance unfortunately requires a degree
of competence and logical commitment beyond the comprehension of most higher
officials. So, even if this goes to the Supreme Court Oracle has this case
pretty much won...

~~~
dragonwriter
> 2) Oracle won in a higher court. At this point, we see a trend that the
> higher you go, the more political and less competent the courts get.

I don't know that that's the case; even if we assume that the CAFC is wrong
from the perspective of application of the law (rather than merely correctly
applying the law to reach an outcome that we don't like), certainly, lots of
observers think that the CAFC is an especially problematic court among Courts
of Appeal, and even on the issues that it specializes in (which copyright is
not one of; Oracle v. Google got there instead of the 9th Circuit because of
patent issues in the case, even though the thing we're all focused on is a
copyright issue.)

So, I don't think that "the CAFC messed this up", even if taken as gospel,
necessarily demonstrates a relation between "level" of court and competence.

> The DOJ's actions reinforce this trend too.

Since the DoJ isn't a higher court than the CAFC, I don't see how you can
reasonably say that.

~~~
maz20
DOJ is not a court but it is a "high official" (or "official body"). What I
was stating was that the "higher you go" \-- in terms of official government
bodies, whether they're courts, or something else -- the less competent I
would expect them to be.

You can simply say, 1) "Oracle owns Java" 2) "APIs are part of Java" 3)
"Google uses Java APIs" 4) Therefore, "Google uses something Oracle owns" so
Oracle should win this case

Now of course, you can apply some deeper logic to uphold Google's stance. But
that's the problem --- how "far" or how "deeper" do you expect the higher
courts to look into this issue? Deep enough to understand Google's position?

~~~
dragonwriter
> You can simply say, 1) "Oracle owns Java" 2) "APIs are part of Java" 3)
> "Google uses Java APIs" 4) Therefore, "Google uses something Oracle owns" so
> Oracle should win this case

You _could_ , but neither CAFC nor DoJ _did_ , so that's irrelevant.

> Now of course, you can apply some deeper logic to uphold Google's stance.

Or you could apply deeper logic and still uphold Oracle's stance. Now, I tend
to think the District Court decision here was more correct than the CAFC
decision (or the DoJ position), but I don't think as a legal decision its as
_clearly_ correct as some people would like to claim -- even though its also
the outcome I prefer independent of what is correct under the current law.

> But that's the problem --- how "far" or how "deeper" do you expect the
> higher courts to look into this issue?

Fairly deeply on the legal side -- that's what appellate courts exist to do,
and they are generally fairly good at it (though they do fail spectacularly at
times, but not _worse_ than trial courts, though with higher courts they get
more attention for it) -- perhaps less so on the factual side (again, this is
by design -- and why appellate courts often resolve legal disputes and send
the factual matters back to the trial courts to resolve given the legal
clarification.)

> Deep enough to understand Google's position?

I don't think the CAFC or DoJ failed to _understand_ Google's position.
Disagreement isn't the same thing as lack of understanding.

------
moron4hire
Why not let it happen? Why not just completely destroy everyone's
understanding of how permission to use certain types of code work, and then
force everyone to just abandon the US copyright system for software
completely? Let this happen and just let it destroy the system from the inside
out.

------
username3
Naming things is one of the hard things in Computer Science.

------
lukeh
Will be interesting to see if Microsoft sought a license from Apple for
Project Islandwood...

------
bmvakili
Seems ridiculous; my analogy: organization of volume of books; or
classification of library; I can use any classification. I can go to Library
of Congress; copy they way they organize their books; and implement same in my
library. Why can't you do that with Open Source code?

------
jorgecastillo
I know this has been said a lot of times already but I don't think we can say
this enough. If Oracle wins, this will set a terrible precedent for software
development. If any software company deserves to be qualified as evil, it is
Oracle without a doubt.

------
glomph
Can someone give the background of why Google did what they did? Did they want
to block Java compatibility or was that a side effect of some other objective?

~~~
tim333
History very approximately:

> In November 2006, Sun open-sources Java.

>In November 2007, Sun approves Google's use of Java in Android.

> April of 2009, Oracle Corp. announced that it would be acquiring Sun

Subsequently Oracle figured it could get some money from Google by requiring a
license fee

[http://www.zdnet.com/article/the-real-history-of-java-and-
an...](http://www.zdnet.com/article/the-real-history-of-java-and-android-as-
told-by-google/)

It gets more complicted though, see [http://www.zdnet.com/article/the-real-
history-of-java-and-an...](http://www.zdnet.com/article/the-real-history-of-
java-and-android-as-told-by-google/) and a bunch of other stuff

~~~
glomph
Thanks.

------
woah
Where does this leave SQL?

------
matthewmcg
The apostrophe should be removed from the heading.

------
username3
APIs should be trademarked.

------
tajen
What happened of Judge Aslop [1]? As a foreigner, he's the only ever positive
story I have heard about the American judicial system, since he was in charge
of the Google vs Oracle trial, and he reproduced code himself to understand
what was so unique about it. In fact, he decided there was only way to code
some things, and ruled that the very small method everyone was arguing against
can't be patented/copyrighted. And he ruled Oracle's API couldn't be
copyrighted. So do this contradict his ruling?

[1] [http://www.cnet.com/news/judge-william-alsup-master-of-
the-c...](http://www.cnet.com/news/judge-william-alsup-master-of-the-court-
and-java/)

~~~
carussell
> So do this contradict his ruling?

Yes. As mentioned in the linked article, the Federal Circuit court overturned
Alsup's ruling. The Alsup ruling came from a district court, and the Federal
Circuit has the authority to overturn it. From there, the question can go on
to the US Supreme Court.

------
ChairmanZach
""[Google]'s Section 102(b) argument also suffers from a broader flaw." (this
sentence transitions from the Administration's rejection of Google's
suggestion that declaring code is inherently more functional and less
expressive than implementing code to the DoJ's agreement with Oracle's lawyers
on the purpose of Section 102(b))"

That Google would be in the right by copying the declaring code of 27(!)
different namespaces is nothing but crazy.

[http://www.fosspatents.com/2015/05/us-dept-of-justice-
finds-...](http://www.fosspatents.com/2015/05/us-dept-of-justice-finds-
googles.html)

~~~
mikecmpbll
That FOSS Patents piece is the best commentary I've seen on the subject,
thanks for bringing to my attention.

~~~
simplifier
Ah, Florian Mueller, a paid Oracle shill.

~~~
mikecmpbll
I don't care how involved he is in the case, I read his writing and I found it
to be illuminating -- far more so than anything else I'd read on the subject.

You can happily take the opposing view simply because he is involved and is
probably biased, but that will make your viewpoint almost entirely baseless.

~~~
dragonwriter
Mueller has a history of doing an excellent job working things that aren't
actually reasonable to informed parties that seem illuminating to people that
aren't informed. It's actually a fairly key skill for a professional
propagandist. I haven't actually read the piece on question here, but
appearing illuminating and actually being deceptive propaganda are not
mutually exclusive traits.

~~~
mikecmpbll
if that's the case, it's the job of the 'informed' guys to write similarly
illuminating counter-arguments, because I've not found any yet.

~~~
dragonwriter
The illusion of illumination is greatly enhanced by having a strong guiding
narrative, which is easy with propaganda, harder with reality.

~~~
mikecmpbll
You cannot cry propaganda without providing some evidence as to what is
misleading or factually incorrect, because otherwise anyone can say anything
is propaganda.

