
Jury rules Google violated copyright law, Google moves for mistrial - suprgeek
http://arstechnica.com/tech-policy/news/2012/05/jury-rules-google-violated-copyright-law-google-moves-for-mistrial.ars
======
endersshadow
Well, yes and no. The jury ruled that Google violated copyright if and only if
APIs are copyrightable. They have not ruled whether or not Google had fair use
(which is kind of fuzzy to me--how do you violate the law when you have fair
use, or could potentially have fair use?).

The judge has to determine if APIs can be copyrightable now. If the jury had
ruled that Google wasn't guilty of copyright infringement of the API, then the
judge wouldn't have to make that decision.

~~~
rgoddard
Fair use is a defense against copyright violations. If you are deemed not to
have a copyright violation to begin with, you do not need to use fair use as a
defense.

~~~
morsch
If your usage is covered by fair use, it doesn't require the approval of the
rights holder and _can't_ constitute a copyright violation.

But this is arguing semantics, the problematic word being copyright
_violation_. It goes against my intuition (and I suspect I'm not alone) to say
that a _violation_ of copyright has taken place when a usage is legal within
the rules instituted _by_ copyright.

I suppose people who associate a different set of semantics with copyright
violation would have to talk about legal copyright violation versus illegal
copyright violation. To me, the former is contradicting and the latter is a
tautology.

~~~
baddox
It is a semantic argument, but I'm pretty sure US law treats fair use as a
limit on copyright rather than as an excused copyright violation.

rgoddard seems to be implying that _all_ copying of a copyrighted work is
illegal, which simply isn't the case. His claim is analogous to claiming that
driving at _any_ speed is in violation of the speed limit, but if you driving
under the posted limit you can use that as a defense in court.

~~~
rayiner
No, US copyright law treats fair use as a defense:
<http://en.wikipedia.org/wiki/Fair_use#Fair_use_as_a_defense>.

~~~
baddox
Right, but a fair use isn't an infringement.

> This means that, in litigation on copyright infringement, the defendant
> bears the burden of raising and proving that his use was "fair" _and not an
> infringement_. [emphasis mine]

Just like in a murder trial where the defendant clearly killed the victim, the
defendant must prove that he or she acted in self-defense. That doesn't mean
that self-defense is murder.

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bhousel
I can't believe cases like this are actually decided by a jury trial. There's
no way 12 random people shown a video about the patent system can be expected
to rule fairly on matters of nerd esoterica.

Or is this opening round just legal theater, and the real decisions will be
handed down by experts in the US Federal Circuit court after an inevitable
succession of appeals?

~~~
guan
I tend to agree with you about jury trials, but having the “real” decisions
made by specialist judges in the Federal Circuit has dangers too. Many legal
scholars believe that the trend toward allowing more software and business
method patents in the 1980s and 1990s occurred because of Federal Circuit
judges who were too embedded in the patent bar, and that it was allowed to
continue without enough review because with all patent appeals coming out of
one circuit, there were no circuit splits (disagreements between circuit
courts of appeal), which is the usual way cases reach the US Supreme Court.

In any case it would be difficult for the trial judge or the Federal Circuit
to ignore jury decisions on factual questions like the ones that were decided
here, unless the result was egregiously wrong. Legal questions like whether
APIs are copyrightable will almost certainly be reviewed on appeal.

[added] The dangers of judges who are too specialized was actually recognized
when the Federal Circuit was set up, so the court was also given jurisdiction
over a few other areas, such as appeals from the Court of Federal Claims, to
prevent it from being overly specialized. I haven’t seen recent figures, but I
do believe that the docket is dominated by patent cases.

~~~
rayiner
It's not just that Federal Circuit judges are embedded in the patent bar, but
also that judges are quite intellectual and academic and it is in vogue among
academic circles to treat intellectual property like real property. Real
property has a very strong right of exclusion (you can't be on my land no
matter what you're doing on it, whether it hurts me or not or benefits society
or not).

~~~
wisty
Economists classify goods as being either rivalrous or non-rivalrous, and
either excludable or non-excludable.

The ownership of IP is, in a sense, a private good (excludable and rivalrous),
just like a car. Take patents - can buy and sell them, they're hard to steal,
and only one person can have it.

However, the right to use (not own) IP is not a private good. While the
original copyright or patent may be unique (therefore rivalrous) and easy to
defend (thus excludable), expressions of it are not.

Non-excludable, non-rivalrous goods (the right to use IP) are a little harder
to reason about.

~~~
ktizo
Cars are excludable and rivalrous property based on the fact they are physical
objects that are of a size easy to possess and it is very hard in physical
terms for them to not be so.

Patents, on the other hand, are excludable and rivalrous only in the
tautological sense. They are defined within law as excludable and rivalrous,
so therefore they are excludable and rivalrous.

Patents could be redefined in numerous ways that are not excludable and
rivalrous, such as including anyone else who can give reasonable proof that
they came up with the idea at the same time or independently. Also, it would
not be that great a stretch to limit their transferability, so that they
cannot be treated as a normal asset.

~~~
wisty
> Patents, on the other hand, are excludable and rivalrous only in the
> tautological sense

Yes, and it's really easy to con people with the tautological definition.

"Of course IP is just property. You can buy it, and sell it, just like a car".

By the same argument, piracy is not theft but license infringement. The whole
thing is so abstract, it's easy for people to muddy the waters.

------
rgoddard
If (API Copyrightable) = False THEN Google Not Guilty

If (Google Violated Copyright) = False THEN Google Not Guilty

If Google has Fair Use THEN Google Not Guilty

Google Guilty

The judge needs to rule on the first statement, the jury came back on the
second statement, but the jury could not decide on the third statement.

(Edit: Wording)

~~~
georgemcbay
GoogleGuilty = APICopyrightable && GoogleViolatedCopyright &&
!GoogleHasFairUse

optimized (and corrected, because in your flow Google is always guilty since
everything drops through to that anyway).

~~~
ricree
Strictly speaking, wouldn't it be GoogleGuilty = GoogleViolatedCopyright &&
!GoogleHasFairUse && ApiCopyrightable

In the sense that false short-circuits anything to the right, and
ApiCopyrightable is only a factor if Google is held to have violated copyright
under the assumption that Apis can be copyrighted.

~~~
scarmig
Hmm, are those values synchronous, though? Maybe an event-based architecture
is a better model, though I don't really understand how the law works.

------
alok-g
Excerpt from [1]:

"What is copyrightable is creative expression," said Julie Samuels, an
attorney with the Electronic Freedom Foundation "What is not [copyrightable]
is functional information. The programming language is not. You can't
copyright a language. It's what you make of that language."

This seems to assume that creation of a (computer programming) language does
not involve creative expression. (I understand that writing a compiler for
this language certainly does.) This may have been right in possibly older
times when languages were not explicitly designed; does not sound right
anymore.

Also, would you call sizeof(A) to be a part of the language (it is built into
C/C++), or is it more like an API?

[1] [http://news.cnet.com/8301-1001_3-57429147-92/oracle-gets-
a-c...](http://news.cnet.com/8301-1001_3-57429147-92/oracle-gets-a-chance-to-
rewrite-software-law/)

~~~
WildUtah
No one is saying that designing a language is uncreative. The distinction is
not between creative and non-creative.

The question is between purely creative and functional. Functional things are
usually not covered by copyright while creative things are. Things which are
both need to be considered more carefully.

A computer language would never be copyrightable anyway because it is not a
fixed expression. It's a set of rules for expressing things and that is never
covered.

And APIs have never been covered because they're purely functional, regardless
of the level of creativity involved.

~~~
alok-g
>> A computer language would never be copyrightable anyway because it is not a
fixed expression

This helps! Thanks.

As you stated yourself, APIs do seem to fall in the same category. I think the
distinction of APIs from language is very complex as there are things which
may blur the boundary between the two.

------
Natsu
The jury was told to assume SSO is copyrightable. They were all but told they
had to find infringement there, with fair use being the important question.

------
ramblerman
If Oracle wins what does that mean for java and it's developers. I know it
will be pretty hard to find a non dramatic, overly sensational, opinion right
now but I'm gonna try...

Would it have an effect on the jobtrend in java over the next 5 years?

~~~
azakai
> If Oracle wins what does that mean for java and it's developers.

That's an important question, but the issues are even bigger. This isn't just
about Java. If the judge finds that APIs are copyrightable, it affects a lot
more.

For example, Microsoft has a promise not to sue over its patents on .NET. But
if APIs are copyrightable, is Mono in infringement of Microsoft's copyright?
Safety from patents is suddenly not enough.

Another example, Android uses Linux kernel headers, the API needed to access
the kernel. The wide assumption has always been they are not copyrightable, so
you can implement userspace apps that are not GPL. But if APIs are
copyrightable, that might be less clear.

The bottom line is that this judge is going to decide, by himself, whether
APIs are copyrightable. It's going to have a huge impact on our industry if he
says "yes". It's scary to think about the amount of power he currently holds.

------
mstachowiak
The judge still has to decide if the APIs have copyright protection. Bad
initial result for Google/Android, but more important rulings to come

~~~
fpgeek
I'm not so sure it is a bad initial result. It looks more neutral to me.

Given the judge's instructions on SSO copyright and APIs and the realities of
re-implementing an API, I don't see how a jury could have reasonably concluded
there was no potentially infringing copying. If so, the real question in play
was the fair use analysis and that's where the jury deadlocked. Not as good as
Google would have liked, but not as bad as it could have been, either.

~~~
rcthompson
I think you're right. If you assume that APIs are subject to copyright, then
seems clear that implementing a new system that copies only the API of another
existing system would be a violation of the copyright on the API. But it seems
the judge still has to decide whether APIs are in fact copyrightable, and if
he decides that they are not, then I suppose this verdict would be irrelevant.

------
rsbrown
This headline and the terse article behind it leave it out enormously
important aspects of today's events.

Mush more nuanced analysis here: <http://news.ycombinator.com/item?id=3940322>

------
vph
Google should have banked on Python as the language for the Android platform.
It would have been a better choice in many ways.

~~~
afsina
That would be wrong on so many levels. A better idea would be buying Sun.

------
kyboren
While I definitely agree that Judge Alsup's instruction to the jury, "assume
SSO is copyrightable," biased the jury for the next phases, I doubt he will
find that SSO _is_ copyrightable.

<http://digital-law-online.info/lpdi1.0/treatise22.html> <\--- precedent

------
josefonseca
If the jury rules that Google violated copyright law, does it imply that there
was an accepted copyright on the API? Anyone who understands law know what
this ruling indicates as far as the bigger issue of API Copyright is
concerned?

~~~
rsbrown
"does it imply...?"

No. The judge has yet to decide this (much more important) issue.

More info here: <http://news.ycombinator.com/item?id=3940322>

~~~
josefonseca
The reason I ask is this(copied from my same question on reddit):

I see but does the fact that the judge told them to assume so indicate
something about what he thinks about it?

I'm not a lawyer and I wonder how it goes in these cases: when a judge tells
the jury to assume something, is he implying there is a good chance that that
is how he would judge the case?

I had a lawsuit many years ago against a bank here in my hometown. The judge
initially ruled he "believed the evidence I presented was consistent with my
arguments". In the end, years later, that is how he judged it finally.
Therefore I wonder if API's are all now on the brink because of this ruling.

~~~
kbolino

      P = Java APIs are copyrightable
      Q = Google has violated Oracle's copyright on Java APIs
    
      Does P imply Q?
    

In order to answer this question, you must first assume P to be true and then
determine whether Q follows consequently.

This is purely a logical/philosophical exercise (that could nonetheless have
serious consequences for the outcome of the case); the Judge had to give this
instruction. If he told the Jury to assume the opposite, there would be
nothing for them to determine (we already know that not P implies not Q).

~~~
josefonseca
> In order to answer this question, you must first assume P to be true and
> then determine whether Q follows consequently.

Yes but you must discard the hypothesis later(assumption of P), which only the
judge can do in this case, deciding whether or not P is true.

~~~
kbolino
Indeed, but that was not the question at hand: "when a judge tells the jury to
assume something, is he implying there is a good chance that that is how he
would judge the case?"

~~~
josefonseca
Exactly, that is why I asked.

I guess by your reasoning, then yes, he is implying that, otherwise the
implication is always true and there's no logic to assuming a false P.

Thus: I fear for the worst. API's may be copyrightable according to this
ruling. I assume Google's teams are all over this right this minute.

~~~
kbolino
>>> I guess by your reasoning, then yes, he is implying that, otherwise the
implication is always true and there's no logic to assuming a false P.

There are two separate questions being asked here:

    
    
      1. Is P true?
      2. If P is true, does Q follow?
    

The jury is assessing question (2) while the judge will later assess question
(1). Question (2) is a question of guilt (if this were the law, did Google
violate it?) and question (1) is a question of law (is this actually the
law?).

To answer (2), the jury must assume P then evaluate the consequence on Q; that
is simply the manner of establishing the validity of a material implication.
As you note, if the jury did not assume P, then they would have nothing to do.
However, that the judge instructed the jury as such does not indicate any bias
on his part; he was simply providing instructions to simplify the procedure of
logical reasoning to a group of 12 laypeople. I'm assuming that most of them
aren't trained mathematicians, logicians, lawyers, or philosophers.

To put it succintly: the answer to your original question is "No."

------
joejohnson
_Right now, the jury is watching a video about patents and patent lawsuits
produced by the Federal Judicial Center, which is commonly shown to patent
juries._

Is this said video? <http://archive.org/details/gov.ntis.ava21157vnb1>

------
eternalban
"If the verdict stands, the end result is that Java may not be as open source
as it was thought to be. Oracle may be able to essentially take Java out of
the public domain, at least as far as its use in cell phones."

I call b.s. on this. If the involvement of Oracle here is causing cognitive
dissonance substitute Sun Microsystems and review issue.

Java is open source. There is an open source license and you can license it.
(Note: You are implicitly agreeing to OSS licensing when e.g. forking on
Github.com.)

> "as thought"

Terms of that license are well known. Nothing ambiguous to "think" about.

> "take out"

Violate my GNU licensed code and you may find I will "take [you] out" of
market x.

If copyright violations of APIs are ok, then where the tooth in [GPL], for
example. "Free as in freedom not free beer".

~~~
Locke1689
This is a matter of law, not your opinion. If the judge rules that APIs are
copyrightable and Oracle holds the copyright, Oracle has legal standing to
bring cases that infringe its copyright, whether or not the code itself is
licensed under the GPL.

~~~
eternalban
An article is not a legal opinion.

------
InclinedPlane
Things aren't going to get better until the law changes. The reason for
software patents is to encourage research and innovation, they do nothing of
the sort today and should be ended.

~~~
hughw
The topic at hand today is copyright, not patents.

~~~
InclinedPlane
Yes, but...

These companies would not have such large IP legal teams were it not for
software patents, nor would they be in the regular habit of taking each other
to court with the threat of multi-million dollar damages. As it happens, the
copyright protections of an API are the issue in this particular case but this
is just one battle in a larger war which is predominantly fought on the patent
field. Were it not for software patents it's a fairly sure thing that a case
of this sort would never see the light of day.

~~~
rayiner
Lol no. Copyright has always been the basis of protecting software--software
patents are a relatively new phenomenon. People were having fights over
copyrights to software decades ago.

------
Blunt
I guess this means every code compiler is in jeopardy now too.

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jemeshsu
Is there a machine learning algo that can predict who will win out eventually?

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loverobots
As I see it, it's not a win (yet?) for Oracle. Sort of AP suing me for using
their paragraph without permission. I am guilty of using it but it may be fair
use, thus allowed.

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tubbo
This is fucking BULLSHIT.

