
Oracle Wins Revival of Billion-Dollar Case Against Google - uptown
https://www.bloomberg.com/news/articles/2018-03-27/oracle-wins-revival-of-billion-dollar-case-against-google
======
grellas
Appellate courts do not lightly overturn jury verdicts using highly fact-
specific reviews of evidence. There is a reason they call a jury a "trier of
fact".

There is a reason for this: if it were the rule that an appellate court could
easily step in and second-guess how a jury weighs evidence, there would be
little room for finality with jury verdicts because lawyers are very skilled
(and become very tiresome) endlessly arguing why this or that fact is better
than another and why a court should weigh things differently than the way a
jury did.

In this case, the Federal Circuit Court did what amounted a wholesale second-
guessing of what the jury concluded about the facts here.

I am not saying the issues were not complex and that it had absolutely no
basis for coming to different conclusions.

But the zeal with which this particular court upholds IP absolutism is truly a
marvel.

This is the court that gave us the frivolous patent bonanza dating back to
1990s by which "everything under the sun" became patentable and many suffered
for years from the consequent harm.

So too with the way it is handling copyright law in this Oracle/Google
dispute. Yes, by all means, let us protect the hell out of APIs and invite
endless future litigation that ensures that easy connectivity in the computer
world will no longer depend on engineers but on lawyers. And let us say that
"no reasonable jury" could possibly conclude that copying even a tiny amount
of code could possibly be "quantitatively insignificant" so as to shield the
one doing the copying from claims of copyright infringement, all the better to
ensure that future lawyers can conjure up infringement claims from all sorts
of seemingly quantitatively trivial copying.

I deliberately exaggerate in how I characterize this decision knowing that it
glosses over all sorts of fine points that are the subject of profound
argument among lawyers. But I do so to capture the spirit of this decision and
what decisions like this mean for computing generally.

Yes, a very broad theory of what is patentable can readily be defended in the
name of protecting IP rights and lawyers can come up with endless arguments
for why this should be so. So too can lawyers make convincing arguments for
very broad theories of copyrightability and very narrow readings of fair use.
In both cases, the law protecting IP gets an expansive reading.

Well, speaking as one who has tilled this soil for a long time and who very
much supports and sees the need for strong support of IP rights, I can only
say that the Federal Circuit Court has proven to be a largely counter-
productive force in serving as a specialized court dealing with IP among
federal courts. This ruling will do what its prior expansive reading of patent
law did: it will set up a legal standard that invites lawyers and litigants to
engage in endless second-guessing over copyright and fair use in areas of
connectivity and inter-operability in the computing world and this in turn, as
a standing invitation to litigate, cannot be good for future development.

~~~
DannyBee
"In this case, the Federal Circuit Court did what amounted a wholesale second-
guessing of what the jury concluded about the facts here."

It's worse than that. They are supposed to be applying ninth circuit law, and
they roundly haven't throughout the entire appeals.

They've made a complete mess of it. First in copyrightability, and now fair
use. There are even ninth circuit judges who have spoken out about this.

~~~
scoggs
For someone who is very much on the outside of understanding this situation,
if you think you know enough to comment on it overall, would you say that they
are mishandling it due to generally misunderstanding the gravity of the
verdicts they are handing out or is it more to do with not precisely
understanding the technology, what goes into creating such technology, how
technology is propagated and improved, and how that diaspora of code and
information winds up becoming the open or closed source "fabric" of what we
know as computing today?

~~~
DannyBee
They just think the ninth circuit is wrong. They are reasonably well informed,
they just disagree.

People very often make the mistake of assuming two people with the same data
will form the same opinion, and that where people disagree, it must be due to
not understanding the data/etc.

In my experience, this is very wrong :)

~~~
scoggs
Thank you. I can totally understand that. I appreciate it.

~~~
DannyBee
Of course.

I've met the ex-Chief Judge of the federal circuit, Randall Rader, a number of
times (he also taught a class i took in law school at GWU).

He's definitely not stupid, is cognizant of how people view his decisions (he
said "they loved me when i wrote nintendo vs. atari and hated me when i wrote
other things"), and really did believe he is making things better.

Of course, i strongly disagree, but like i said, it's not like he doesn't
understand the issues.

------
ABCLAW
It may be helpful for readers to look at the actual meat and potatoes of the
decision itself. I recommend jumping in at Page 27 of the decision so that
they can see how the fair use factors were evaluated in this case:
[http://www.cafc.uscourts.gov/sites/default/files/opinions-
or...](http://www.cafc.uscourts.gov/sites/default/files/opinions-
orders/17-1118.Opinion.3-26-2018.1.PDF)

Fair use has four factors, lets see how it shook out:

1) Purpose and Character: Google tried to argue that because android is free
that it isn't commercial. Bzzt. Nope. You don't need direct monetization to
make something commercial.

Was it transformative? They verbatim copied shit. Google claimed it was
transformative because they used it in _smartphones_ , yo. No. You guys who
think patents that slap "but use a computer to do it" onto the end of some
existing process are bad? Google's trying to say the same thing per computer
_form factor_.

2) Nature of the Copyrighted Work: Dealt with previously - APIs are
copyrightable. Lots of people have an issue with this, but the previous
opinions on that point are where you should go for material on that point.

3) Amount and Substantiality: Bad faith usage came out around neutral; wasn't
a huge amount copied but it was important material, as admitted by Google
themselves.

4) Effect on Work's Value: Direct evidence of market harm demonstrated by
showing that Amazon leveraged Google's infringement to lower their license
payment. Slam dunk.

Overall, I agree with the other posters indicating that once API copyrights
were upheld that this was going to be a clear loser for Google. Maybe they'll
get cert and have the supreme court take a look at this following the re-
trial.

~~~
jandrese
If API are copyrightable how do clean room implementations work? It seems IBM
could sue the clone makers for the BIOS API if that's the case.

~~~
ABCLAW
You actually do a clean room implementation rather than copying chunks of your
competitor's work and then pretending it's allowed under fair use?

Seems pretty straightforward.

~~~
phkahler
Google did clean room implementation of almost all functions. They copied 9
lines of implementation code verbatim - out of thousands of lines. It does
raise a question in my mind as to how that one function got copies, but it's
also possible that it was re-implemented and happened to be done exactly the
same without looking at the original - I honestly don't know but Google
conceded it was a duplicate either way. 9 Lines. Not a wholesale infringement
- seems pretty straightforward.

~~~
ABCLAW
>It does raise a question in my mind as to how that one function got copies,
but it's also possible that it was re-implemented and happened to be done
exactly the same without looking at the original

They _literally admit to having copied it_.

All the hypotheticals trying to find the end of cleanroom dev in this case
keep missing the point: They didn't do cleanroom dev. They admit to not having
done it. Their defenses aren't organized around them doing it. So what's the
furor about?

~~~
doktrin
> So what's the furor about?

Probably about the absurdity of being hit with potentially astronomical
penalties for "copying" 9 lines of trivial code that's barely worth hitting
ctrl-c for.

Obviously, common sense is - as always - distant from the pedantic nature of
law and laywers, but just about anyone sane is gonna look at this and go "well
that's just stupid".

~~~
dragonwriter
> Probably about the absurdity of being hit with potentially astronomical
> penalties for "copying" 9 lines of trivial code that's barely worth hitting
> ctrl-c for.

IIRC, the literal copying of code was something for which the parties
stipulated to $0 in damages; the potential liability is about copying the API,
not the one trivial 9-line function.

------
redm
I think the part that gets lost in all of this is that Sun offered to license
Java to Google previously for $100M. [1] Google turned that down and bypassed
Sun because they didn't want to pay (or license). At the time, Sun was happy
to see Java being used by Google, even without the license. Still, Google knew
exactly what they were doing. [2] My point is, they did this to themselves and
they knew what they were possibly getting into.

[1] [https://www.computerworld.com/article/2509401/technology-
law...](https://www.computerworld.com/article/2509401/technology-law-
regulation/google--sun-offered-to-license-java-for--100m.html)

[2] [https://www.cnet.com/news/why-oracle-not-sun-sued-google-
ove...](https://www.cnet.com/news/why-oracle-not-sun-sued-google-over-java/)

EDIT: Added the second reference and cleaned up thoughts. Included note
regarded license as well as pay.

~~~
djsumdog
But the thing is Google didn't use the Oracle Java engine. They implemented
their own runtime environment that's mostly API compatible with Java (and
getting further from that as the years go on).

This gets into really critical concerns around APIs. If commercial product A
sucks and I'm in a shop where we made our own drop in replacement that
implement's A's APIs .. then we open source that drop-in replacement and put
it on Github so anyone can use it, are we no violating their copyright just by
implementing their API?

This can set dangerous prescient when it comes to interoperability and reverse
engineering.

~~~
curt15
GNU/Linux is a partial (but incomplete, since no Linux distro is unix(tm)
certified) a reimplementation of proprietary Unix, and with billion-dollar
companies like Red Hat and IBM it's certainly a commercial endeavor at
proprietary Unix's expense. It would seem to be an attractive target if a
plaintiff like SCO could somehow move the case to the federal circuit (as none
of the standard appeals courts have declared APIs copyrightable).

~~~
hcknwscommenter
Reimplementation does not necessarily violate copyright. Copying does violate
copyright (absent fair use). Like verbatim copying. Example, Google didn't
have to use the “java.lang.Math.max(a,b)” header, but they did. They did copy
because they wanted to leverage the existing Java developer base who would
easily be able to develop for Android, without having to do the hard work of
building their own ecosystem. Overall, Google copied the header structure for
more than six-thousand methods.

~~~
gefh
How many ways are there to define max? Surely AT&T should turn around and sue
Oracle for lifting max(a, b) from stdlib. Or maybe SCO will rise from the
grave and try it again.

~~~
hcknwscommenter
An infinite number of ways. Call it max(b,a) [i.e., reverse the order of b and
a inputs]. But Google didn't do any of that. They copied.

~~~
tankenmate
The previous remark's point was that Java copied many C functions, inventions
largely of AT&T and BSD.

~~~
hcknwscommenter
I see the point, but that's "whataboutism." I also have no idea who owns the
copyright (if anyone does) to stdlib APIs, and whether Oracle obtained
license. Do you?

~~~
wtallis
> (if anyone does)

There's no doubt that if it is established that APIs are subject to copyright,
then _someone_ owns copyright to the C standard library APIs. It's not old
enough for copyright to have expired, and nobody has ever released the APIs to
the public domain (because nobody ever seriously thought that such a thing
would be necessary). Establishing API copyright as a real thing without broad
fair use rights would throw into doubt the copyright ownership of a large
portion of all software ever written.

------
stephen
I wonder how the $$ Google might pay to Oracle compares to the $$ it is
spending to move away from Java by building replacements (v8, Go, Dart,
Flutter/Fuschia, etc.) that are all essentially "GC languages with a great
runtime VM".

E.g. I can understand Oracle/Sun needing some amount of money for stewarding
Java, as the teams required to build/maintain/QA/release the JVM were AFAIU in
the hundreds, so not cheap. But "Java is free", so they didn't have a way for
covering that cost from the majority of enterprise developers who were getting
a free lunch, and instead relied on the J2ME licensing almost by
accident/happenstance IMO.

So now, companies like Google are not "paying for hundreds of Oracle/Sun
engineers to develop a platform/language/ecosystem", but instead "paying
hundreds of internal engineers to develop (multiple)
platforms/languages/ecosystems".

Which they can do, and still provide v8/Go/Dart/etc. "for free" because they
have the luxury of paying for everything with ads, which Oracle/Sun didn't,
which forced Oracle/Sun to commit the sin of asking for money.

Granted, don't want to be an Oracle/Sun apologist b/c they messed up in a lot
of ways (stagnated the language/etc., don't have a great reputation, etc.) and
the competition/iteration of the next-gen languages like
Kotlin/TypeScript/Go/etc. is working out great.

Just interesting to think of the economic trade-off, e.g. if Oracle had been a
little less controlling, and Google a little more willing to pay
licensing/something, if the net effect would have been Java today being in a
demonstrably stronger market position than it is.

And, either way, the rest of us are still being spoiled by so many free
lunches: amazing tech (languages/libraries/frameworks/ecosystems) built by
professional teams that we don't pay a dime for.

~~~
gsnedders
V8 has little to do with Oracle, fundamentally. V8 came about because they
wanted a higher performance JS VM for their browser; the JVM was never in
contention there.

~~~
admax88q
Sure it does. Why did they want a higher performance JS VM for the browser?
The language of choice to build interactive applications on the web before JS
was really viable was Java.

A high performance JS VM means we don't need to use applets anymore.

~~~
r00fus
> The language of choice to build interactive applications on the web before
> JS was really viable was Java.

I find this amusing. No one ever built anything meaningful client-side with
Java. There's a reason Microsoft laughed off Java as "write once, debug many".

~~~
janoc
Um Eclipse? Netbeans? ArgoUML? (just out of top of my head).

Your statement would be true if you have said "anything meaningful client-side
__on the web __with Java ". On the web Java was restricted to Java applets and
was never really in competition with JavaScript.

Desktop is quite another story.

~~~
r00fus
Agreed, my context was browser specific applets. Clearly Java has some
moderate success on the desktop.

I do think Sun entertained Java superseding Javascript in the browser - it
just didn't work out that way.

------
Ajedi32
I think the case was basically lost as soon as the court ruled that APIs are
copyrightable. I still disagree with that decision, but once you've already
arrived at that point then I think it's pretty hard to argue that Google's use
of those APIs was fair use.

~~~
shmerl
Why can't they appeal that ruling? It's completely wrong. EU got it right, and
copyright lobby didn't manage to spoil it there.

~~~
Agathos
They did appeal, and the Supreme Court pretty much said they didn't want to
look at this until a trial took place on the fair use question. Now that
that's happened, I assume there will be another appeal to the Supreme Court.

~~~
AnimalMuppet
I sure hope so. That decision _definitely_ needs to be appealed. I very much
hope it's overturned. (The industry has pretty much assumed - and acted - that
APIs were not copyrightable, and that's worked out all right. Suddenly
shifting to APIs being copyrightable is going to cause some change the rules
under existing activity, in ways that it's hard yet to define the full scope
of.)

But even if it's not, the decision needs to be appealed. Right now the
situation is that APIs are copyrightable, but only for sure within one of the
US Federal Court districts. In the other districts, they _may_ be
copyrightable. Or they may not be. If they aren't, then we have different law
applying in different districts until the Supreme Court decides to resolve the
issue. A Supreme Court decision now, one way or the other, would at least give
resolution. (If they decide that APIs are copyrightable, then we'd have
different law in the US and Europe, but at least it would be the same law
everywhere in the US.)

[Edit: Apparently this isn't in a district court, it's in the Federal Circuit,
which handles patent cases.]

~~~
shmerl
Didn't White House administration try to interfere with this case, and
persuade judges not to declare APIs non copyrightable? That was really weird.

[https://arstechnica.com/tech-policy/2015/05/white-house-
side...](https://arstechnica.com/tech-policy/2015/05/white-house-sides-with-
oracle-tells-supreme-court-apis-are-copyrightable/)

I wonder what will happen this time.

~~~
carussell
That's an interesting way to characterize it.

When the Supreme Court was considering Google's petition to hear the case, the
court _asked_ the White House to voice an opinion—where by "White House
administration", you mean the Solicitor General.

That's not "weird"; that's a normal part of the job.

[https://en.wikipedia.org/wiki/Solicitor_General_of_the_Unite...](https://en.wikipedia.org/wiki/Solicitor_General_of_the_United_States#CVSG)

~~~
shmerl
The weird part was in their view on copyrightability of APIs.

~~~
carussell
That's not weird, either. What would have been weird is a finding that they're
not copyrightable, given that it would have been completely at odds with the
statutes and case law we have concerning copyright.

The point is, nuance matters. If you're physically attacked and defend
yourself in a way where you end up killing the guy, you claim that your
actions were justified. You don't go to court claiming that killing people is
just not a problem.

Here's how this case _should_ go:

0\. Oracle sues Google for copyright infringement.

1\. Courts find that the design of APIs is an expression resulting from
substantial creative decisions far above the low bar we already have for
precedent, and therefore they're copyrightable.

2\. Google defends themselves on the claim that, creativity notwithstanding,
merely implementing a public API should not subject an implementor to the
consequences of copyright infringement, and that there are no damages owed
here.

And by every indication, we're right on track.

[https://news.ycombinator.com/item?id=10949839](https://news.ycombinator.com/item?id=10949839)

And it looks like you're moving the goalposts and shitting out two-second
replies, anyway, so I'm done commenting further here.

~~~
shmerl
_> What would have been weird is a finding that they're not copyrightable_

Nothing weird with that. APIs are meta tools, not actual tools. That's what
"I" in the name is for. They are interfaces for a reason. It makes perfect
sense for interfaces to be non copyrightable. EU courts got it right:

    
    
        Computer code itself can be copyrighted, but functional
        characteristics—such as data formats and function names—
        cannot be. "To accept that the functionality of a
        computer program can be protected by copyright would
        amount to making it possible to monopolise ideas, to the 
        detriment of technological progress and industrial 
        development
    

_> And by every indication, we're right on track._

We are not, until Supreme Court will overturn the current ruling and will
clear APIs from copyrightability for good.

 _> I'm done commenting further here._

Sure, you brought no arguments to defend the illogical position of APIs
copyrightability anyway.

------
bitcharmer
It's a shame that there was no one like judge Alsup in the appeals court.

Now it's about legal phrases and licensing terms instead of common sense all
over again.

~~~
BoorishBears
Unpopular opinion: I feel Google should be punished for what they did to Java.

Maybe the mechanism being used is wrong, but Android bastardized Java and as
an Android developer I feel real damage has been done to the health of the
Java ecosystem by having billions of devices run fragmented Java-but-not-Java.

Google has started to make it right with the switch to openJDK and Desugar,
but in a lot of ways it’s too little very late.

~~~
wstrange
Android arguably saved Java by making it much more relevant than it otherwise
would have been.

~~~
BoorishBears
I’m don't agree with that, the big reason why what Google did was so vexing
was the timing.

Java was just starting to get revitalized after a long period of stagnation.
Java 7 was a big deal and for a long time Android devs were limited to a weird
amalgamation of Java 6 and a few Java 7 features.

Then Java 8 came with lots of great Stream goodies (and a lot more) while
Android devs are still forced do to make due with unofficial backports or
cutting off most Android devices (API 24) is the first to support them
natively.

Android development gets mindshare for Android, not Java. The speed of the
transition from Java to Kotlin shows how antsy devs were to get away from
Java.

There are interesting things happening with Java, and they’re all outside of
Android

~~~
wolfgke
> Java was just starting to get revitalized after a long period of stagnation.
> Java 7 was a big deal and for a long time Android devs were limited to a
> weird amalgamation of Java 6 and a few Java 7 features.

Counterclaim: If it were not such a big legal hazzle, it would have been a lot
more easy for Google to update to new Java versions fast on Android.

~~~
BoorishBears
How so?

~~~
wolfgke
Just to give examples that look plausible to me: Because of the legal burden
Google decided to implement their own version of the Java standard library
based on Apache Harmony. With every new version of Java coming there might be
new legal pitfalls to consider and surely almost always the sword of Damocles
that Oracle might consider the fact that Google implemented new Java features
as a reason to extort more money from Google since they implemented additional
copyrighted APIs.

~~~
BoorishBears
But they’ve already went and switched to OpenJDK.

Apparently the risk was not so large they couldn’t do it if they’ve decided to
now

------
nimbius
from TFA: "Oracle claims Google was in such a rush in the mid-2000s to create
an operating system for mobile devices that the company used key parts of
copyrighted Java technology without paying royalties. "

If this is true, it certainly isnt happening again. Google dominates
smartphones and could very easily decide to phase out java for go/rust,
torpedoing whatever rent-seeking strategy Oracle had originally devised. What
oracle is attempting to do is nothing short of what Microsoft tried to do with
TomTom's implementation of FAT.

If BTRFS, percona, and maria are any indication its not the work that matters.
Plenty of talented engineers are willing to devote their time and effort to
avoiding Oracle. Quite frankly the Oracle Database has turned into a manacle
for Ellison. Unable to prevent its inevitable loss to open source alternatives
through NDA agreements that prohibit public release of independent Oracle
performance tests, and unable to convince cloud-bound companies to continue
forking out high dollar per-core licenses for it, The software exists as a 90s
anachronism to the hubris of dotcom. Oracle Enterprise Linux was, for all its
intentions, a flop, and after acquisition and rebranding MySQL is a withered
husk compared to its open source counterparts.

~~~
s73v3r_
"If this is true, it certainly isnt happening again. Google dominates
smartphones and could very easily decide to phase out java for go/rust,
torpedoing whatever rent-seeking strategy Oracle had originally devised."

Because wanting to be paid for one's work is "rent-seeking" now?

And no, Google really couldn't. There's a huge library of Android applications
that are using Java technologies to make them. Google can't replace Java with
go/rust/dart without throwing all that away. They would have to continue to
provide support, which would continue to put them in violation.

~~~
monocasa
Just because you worked on something doesn't mean you get a perpetual
government enforced monopoly on it.

~~~
s73v3r_
And just because you want something doesn't mean you deserve it for free.

------
mjw1007
The question of API copyrightability seems to have been a big failure of the
legislation-and-precedent system.

The theory is that instead of the legislature trying to think through all the
corner cases ahead of time, they pass a somewhat vaguer act and leave the
courts to sort out some test cases; then in a reasonable amount of time
clarity is supposed to emerge.

But it's been 40 years since the world decided that it would "protect"
computer programs as if they were literary works, and 30 years since most
people thought that the question of API copyrightability was settled, and it
turns out that we never got clarity at all.

Having judges trying to determine the question by deciding whether APIs are
analogous to chapter titles or plot points in Harry Potter books is just
ridiculous.

------
dec0dedab0de
I'm conflicted on this.

A. I don't like that APIs are copywrite-able.

B. I wish Google complied with the GPL anyway. I hate this anti-GPL sentiment
that has been going around the last 10 years or so.

C. The android play store would probably go through a renaissance if all the
apps had to be rewritten.

D. I don't trust Google, but I really really really don't like Oracle.

~~~
guelo
B. Java is not licensed under the GPL.

C. Not going to happen.

~~~
merb
B. Java is not licensed under the GPL.

OpenJDK is.

~~~
dragonwriter
OpenJDK didn't exist when Google developed Android, so it would have been very
hard for them to use it.

~~~
dec0dedab0de
The first commercial release of android was 2008, the first release of openjdk
was 2006. It wouldn't be that hard to start with an openjdk repo, and delete
all the files as you added in the davlik code. Release it as GPL, and call it
a derivative work. Not that I think they should have to do that just for the
sake of implementing the API

~~~
curt15
>It wouldn't be that hard to start with an openjdk repo, and delete all the
files as you added in the davlik code. Release it as GPL, and call it a
derivative work.

They've done just that
[https://news.ycombinator.com/item?id=10803775](https://news.ycombinator.com/item?id=10803775)

------
todd3834
I’m not sure if I have the timeline correct but I thought Java was owned by
Sun Microsystems at the time when they made these decisions. I’m sure they
rightly assumed Sun Microsystems would never do this. It is sad to see what
Oracle is doing with Sun Microsystem’s creation.

~~~
Justsignedup
The following is the fun history:

\- Java is created / owned by Sun.

\- Sun was fearful of MS's EEE approach (embrace, extend, exterminate) where
MS took a thing, built their own, pushed their own tooling, added their own
proprietary instruction, boom windows lock-in. So Sun basically made their
contract: Java is free but only if you DO NOT introduce any new instructions,
and implement a 100% compatible VM, nothing added or removed.

\- Sun was making _some_ money out of mobile.

\- Google introduced this pre-compiled java stuff. It used Java but compiled
into binary. Sun was kind of excited. Java everywhere. Even though it violated
the terms sun put out, sun was happy to get more java out there.

\- Google / Sun had a more or less truce.

\- Oracle bought sun. Sun didn't have much business left as Linux was
obliterating their Unix business.

\- Oracle saw the primary income from Sun as a lawsuit against google. And
licensing on every Android phone period.

And thus today.

~~~
TuringNYC
And given the paltry sum of the Sun acquisition, this is the M&A miss-of-the-
decade for Google's M&A group.

------
amrrs
I'm worried if this is again going to pose serious problems in using open
source stack and building profitable solutions. So, If I'm going to build
something profitable using R and Tensorflow/Keras then someday I could be sued
by the consortium or Microsoft that owns Revolution Analytics (that controls
R) ?

~~~
_delirium
R is GPL, so as long as you're complying with the GPL terms in your use of it
or derivative works, you're fine. If you make your own API-compatible
reimplementation of R that isn't covered under the GPL's permission grant,
though, then you might have issues (this case will in part determine what
kinds of issues).

Also, the copyrights for R are mainly held by the nonprofit R Foundation, not
by Revolution Analytics:
[https://www.r-project.org/foundation/](https://www.r-project.org/foundation/).
An API case from R copyright holders would additionally be really messy
because a huge portion of the APIs originate in Bell Labs S, which they don't
own the copyright to. Though there might be some sleeper case where whoever
now owns the original S copyright pops up and sues R users for having cloned
S's API...

------
larryfreeman
This is a big shame. If only Google had purchased Sun Microsystems all this
wouldn't have happened.

Sun was fine with what Google was doing.

When Oracle purchased Sun, it gained the rights to Sun's intellectual property
and decided that it had a case against Google.

[http://www.zdnet.com/article/sun-ceo-explicitly-endorsed-
jav...](http://www.zdnet.com/article/sun-ceo-explicitly-endorsed-javas-use-in-
android-what-do-you-say-now-oracle/)

------
vardump
Another reminder never to do business with Oracle.

~~~
onetimemanytime
Oracle (Sun) paid probably hundreds of engineers to invent and maintain Java.
As James Gosling says
[https://www.youtube.com/watch?v=ZYw3X4RZv6Y&feature=youtu.be...](https://www.youtube.com/watch?v=ZYw3X4RZv6Y&feature=youtu.be&t=57m42s)
they gave away a lot but charged big companies to pay the expenses. Google
should have paid that freaking licensing fee

~~~
jk563
Oracle paid for ammo it thought it could sue Google for.

------
DarkCrusader2
> The case was remanded to a federal court in California to determine how much
> the Alphabet Inc. unit should pay.

No Google is not going to pay billion dollars, not yet. Very clickbaity title.

~~~
protonimitate
Title is perfectly accurate imo.

The case originally had Oracle seeking 8.8b in damages. Oracle won the
revival. Therefore Oracle won the revival of a billion dollar case.

The title does not state or imply that google will pay the full amount, only
that the case is not dead.

I know, click bait is bad, but it really irks me that people on HN are so
quick to pull the 'click-bait' card for no reason.

Would a different title really change anyone's interpretation of the article?
I don't think so.

------
JepZ
OT: Thinking about API copyright I wonder how that is supposed to work in
other programming languages e.g. Golang. Lets assume Google owns the copyright
of the 'io.Writer' interface for the moment.

Is everybody who has implemented a struct with a Writer method which satisfies
the 'io.Writer' interface and as oracle stated it 'who wants to use them for a
competing platform or to embed them in an electronic device' now
(hypothetical) at risk of being prosecuted because they infringe Googles
copyright?

\---

I am well aware that Google was the respondent in the Oracle vs. Google case.

~~~
IAmEveryone
Short answer: no

The law doesn't work as a set of naive rules like "If API->You need a license"
because human life is full of nuances that can never be fully captured in a
set of rigid rules. I know that people are uncomfortable with this truth,
because our systems of courts often appears to the casual observer as just a
bunch of "elders" making subjective decisions. Hence "smart contracts" etc.

And while the criticism isn't completely wrong, the system as it exists in the
US today is actually working quite well, with the professional ethos and rules
of the court system being somewhat successful at overriding any individual
judge's predilections.

Anyway, in your case the difference is obviously one of scope. Even in the
original ruling that affirmed APIs to be subject to copyright, the judge
ultimately dismissed the case because they considered Google's actions to fall
under "fair use".

While this was now struck down on appeal, it is absolutely certain that
copying a single method's signature would still be protected as fair use.
Moreover, in the case you mention, a method such as File.write() would
probably not fall under any copyright because there isn't much of any
creativity involved.

~~~
JepZ
While I understand your point, your argument has very little foundation. You
are basically saying: "Everything works very well and if a judge decides
something you should respect that, as he has good reason to judge it his way".

One thing I have a particular problem with is that even judges from the same
country seem to come to different results on the same case. I know its not
unusual but that underlines my point that just because some judge came to some
verdict, it isn't necessarily true.

And if 'the system as it exists in the US today is actually working quite
well', why does a company like Google with a lot of smart people will have to
pay a fine which probably will be as valuable as the whole Java platform? In a
system that actually works well, the smart people would have seen what was
going to happen and different judges would come to the same result.

And that something as 'simple' as a single method interface doesn't require
any creativity is just wrong. I am sure there are a lot of famous creator
quotes about that, the first I was able to find is from Steve Jobs:

    
    
      Simple can be harder than complex: You have to work hard to get your thinking clean to make it simple. But it’s worth it in the end because once you get there, you can move mountains. [1]
    

In the case of Golang that would translate to: It is much harder to build a
universal single method interface for all kinds of write operations opposed to
specific write methods for different use-cases.

[1]: [https://www.goodreads.com/quotes/445279-simple-can-be-
harder...](https://www.goodreads.com/quotes/445279-simple-can-be-harder-than-
complex-you-have-to-work)

------
stephen
I agree it seems that way, but IMO JavaScript/v8 only exists (or is only the
defacto client-side runtime) because Sun/Oracle messed up the Java/JVM
trajectory at least twice.

1) was Sun making applets suck so bad, e.g. the JVM itself was too slow pre-
JIT, classloading over the wire sucked, DOM interaction was hard (AFAIU/IIRC),
etc.

I don't think any of these problems were fundamental to "put a VM in the
browser", as conceptually Java & JS VMs aren't that different: the trade-offs
JS/Brendan picked just worked better.

2) was Oracle being so lawsuit happy, as I think Dart could have been "just a
faster/better browser-based JVM" (basically applets done right/with a great
pre-JIT JVM) and not the combined "new language + new VM + new ecosystem", had
Google felt comfortable using the Java language. It would have made a ton of
sense, to reuse all their existing/internal Java tooling/knowledge/etc. But
not with Oracle already breathing down their neck re Android.

Anyway, agreed it doesn't seem that way, but I think v8's success is actually
more related to Sun/Oracle/Java's mistakes/missed opportunities than is
initially apparent.

Not complaining, as we're in a great place now with v8/TypeScript/React Native
being basically "the VM + type-safe language + framework that Java could have
been", but with legitimately awesome features e.g. TS's type system, RN hot
loading, etc.

------
hennsen
I admit i don’t understand the details of that case fully and have no time to
waste to change that... What i can say: To me it seems like oracle only bought
Sun to squeeze out money from it’s “intellectual property” as hard as
possible, giving a shit for all the(not fully finished) work Sun did in the
years before to make Java a good Open Source citizen that could easily
delivered in Linux distributions. The very first thing oracle did was making
that harder again and limiting access to the compatibility test suite. Oracle
is a greedy company that doesn’t care about anything than making more money,
no matter what it costs and no respect to any otger party in no way. They give
not the slightest F about being a good OpenSource citizen, in no area where
they enter that ecosystem. And their products might have some nice features
sometimes but in the end are hard to handle/install/maintain expensive crap. I
didn’t write a 100 lines of Java since they own it, and i try to avoid it
wherever i can find a viable alternative.

------
sqdbps
This is ridiculous. Google won two jury trials and the CAFC has no business
deciding copyright cases.

~~~
onetimemanytime
>> _Google won two jury trials and the CAFC has no business deciding copyright
cases._

I think that's their only business, by design.
[https://en.wikipedia.org/wiki/United_States_Court_of_Appeals...](https://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Federal_Circuit)

~~~
wtallis
The CAFC is the appeals court for patents, which are not the same as
copyrights. The local circuits handle copyright cases, except when there are
also patent-related claims in the case.

So if you are a plaintiff in a copyright lawsuit and you want your appeals to
get the pro-IP biased treatment from the CAFC instead of going to the local
circuit, make sure to find a way to include a patent claim in your suit.

------
Finnucane
I suppose we could try lobbying Congress to change the copyright law to make
an explicit provision for the fair use of software APIs.

Hey! Stop laughing!

------
ryenus
The worst decision Google ever made (2011)

[http://www.zdnet.com/article/the-worst-decision-google-
ever-...](http://www.zdnet.com/article/the-worst-decision-google-ever-made/)

------
qaq
I bet Larry and Sergey are thinking we should have bought SUN.

~~~
geodel
Why? At worst Google will pay a couple billion for losing API suit. Oracle's
patent suit already went down the tube. And by the time Oracle wins Java will
be even less relevant for both Google and Oracle. Considering Oracle's Java
business is sinking. They already threw away JavaEE to Eclipse and Cloud infra
is heading Go way.

So instead of being hobbled by Sun JDK design decisions they worked on Dalvik
and Java like paraphernalia. And big success of Android is partially due to
that.

~~~
qaq
Patents/IP rights. Very strong team of eng. a lot of cool tech.

------
lambda
The actual opinion (just posted, had checked a few minutes ago and it wasn't
available yet): [http://www.cafc.uscourts.gov/sites/default/files/opinions-
or...](http://www.cafc.uscourts.gov/sites/default/files/opinions-
orders/17-1118.Opinion.3-26-2018.1.PDF)

------
cabaalis
So, for those like me who don't quite understand all the legalese: I've been
operating under the belief that APIs and protocol "structures" were ruled as
"non-copyright-able" before, while "implementations" absolutely were
copyright-able. Was I wrong then, or am I wrong now?

~~~
AnimalMuppet
They were _considered_ non-copyrightable before. Then, in a surprise to many,
they were _ruled_ copyrightable in this case.

So far, the ruling only applies in the Federal Circuit. And you only get into
the Federal Circuit when there is a patent aspect to the case. But a forum-
shopping litigant could have a patent claim to the case, drop it part way
through, and still wind up in the Federal Circuit on appeal (which, if I
understand correctly, is exactly what happened in this case).

------
TuringNYC
Perhaps this is a naive question - but amongst the hundreds of of things
Google has invented or has patents on, isn't there something they can find
that Oracle has trampled on, and then use it as a negotiation tactic for
making this all go away? e.g., If an API can be copyrighted, can a container
registry interface also be copyrighted?

I agree, this is all stupid, but i'm asking this from the perspective of just
finding examples to allow all parties to back off.

~~~
carussell
Settling out of court at this point would not be a good result, since the most
important thing that will come out of this is the legal precedent.

------
resonanttoe
Is that article two paragraphs long without source or attribution or am I
doing the web wrong?

------
todd8
I used to keep a couple of 9-track tapes (see [1]) of the code I had written.
Too bad I don’t have them anymore, I probably had some 50 year old API I came
up with that someone somewhere violated.

If that seems absurd, consider how few people were programming back then and
how fundamental and basic the APIs were. It’s worse than the patent mess. At
least patents expire in 20 years! Copyright for those 1970s APIs will belong
to my heirs for 50 years after I die! (see the Mickey Mouse law [2]).

[1]
[https://en.m.wikipedia.org/wiki/9_track_tape](https://en.m.wikipedia.org/wiki/9_track_tape)

[2]
[https://www.google.com/search?q=mickey+mouse+copyright+law&i...](https://www.google.com/search?q=mickey+mouse+copyright+law&ie=UTF-8&oe=UTF-8&hl=en-
us&client=safari)

------
rb808
Its really interesting how Microsoft changed their JVM into .net, with a
nearly identical library API but so slightly different (often Upper case
methods instead of lower case).

Would be an interesting idea if Google could compile JVM bytecode apps to run
on .net VM. Of course JSV8 engine would be better, but is more difficult.

~~~
Leszek
Something like [https://blog.xamarin.com/android-in-c-
sharp/](https://blog.xamarin.com/android-in-c-sharp/) ?

~~~
rb808
Yes looks great. Blog post is 6 years old though, is it still valid?

------
chvid
I always wondered why Google didn't buy Sun when they had the chance?

This (Android's use of Java) has always been a risk for Google. Either in form
of the lawsuit but in more general what Oracle (or someone else) would do with
Java.

Anyways. I hope both companies are smart enough to settle this in a reasonable
manner.

~~~
pjmlp
They thought they could get away with it.

------
andybak
I just read the sub-thread from
[https://news.ycombinator.com/item?id=16691774](https://news.ycombinator.com/item?id=16691774)
onwards and started nodding in agreement at the fine arguments therein. But
then sanity hit me in the face like a damp glacier and I remembered the 9
lines of code in question.

Please anyone who's ever programmed anything; take a step back and tell me
this is sane. Tell me there's not a billion cases like this out there waiting
for a lawyer to unearth them.

However persuasive the step by step logic seems, it's the same step by step
that paves the road to hell. If logic, reason and law bring us to this point
then it's logic, reason and law that need to be carefully reexamined.

~~~
ggm
Sorry to be the bearer of bad news, but there _are_ a rough Fermi-number
million or more, of this kind of event, and this decision, which most people
in the practice of writing software would consider a massive reversal, quite
aside from being a retrograde step, implies that both sides of the deal are
now in some sense duty-bound to investigate.

You could be the unwitting, unintending offendor by trivial API copying,
entirely normal in your prior working experiences.

You could now be the person who has to inform senior staff that due to this
decision, code your company owns as IPR is the subject of this kind of
copying.

Think about it: If you discovered that any activity you did was now
potentially valuable in a lawsuit to generate income, by what right do you not
inform senior staff? What you feel about the lawsuit is distinct from your
obligation as a company officer, regarding its status surely?

------
AaronFriel
Can IBM enforce API copyright against BIOS vendors under this doctrine?

Does this revive the SCO linux case? Who owns the copyright for POSIX/UNIX
system APIs?

What about cloud provider compatibility shims, e.g.: S3 reimplementations or
Localstack?

I am left with nothing but more questions about the broadness of this
decision.

------
jbritton
I just hope we don't get to the place where basic function names are
copyrighted, like add, insert, delete, remove, push, pop, sort, map, filter,
foldl, foldr. I hope library writers don't have to pull out a thesaurus.

------
endangered
How about we stop using Java. It's a terrible language anyways.

~~~
AnimalMuppet
_For programming phones_ , what language do you like better?

~~~
leadingthenet
Swift is nice.

------
mtberatwork
> Part of Google’s defense focused on the idea that Java was developed for
> desktop computers, while Android was created for phones and other mobile
> devices.

Is this really the best defense? The tag line is "write once, run anywhere"
after all. I remember back in my CS days (mid/late 90s) when Java was first
being pushed at my uni, the overly-enthusiastic vibe even back then was that
Java would eventually be found everywhere, even in mundane devices like
toasters and coffee machines.

~~~
icebraining
True, but the version of Java for phones was J2ME, which was different from
J2SE. Android implemented the API of the latter.

~~~
pjmlp
Sun was in the process of using J2SE, based on the assets they bought from
SavaJE, which incidentally had an architecture quite similar to the first
Android versions.

~~~
icebraining
Was the TCK changed to allow for that?

~~~
pjmlp
No idea.

------
shmerl
_> There is nothing fair about taking a copyrighted work verbatim and using it
for the same purpose and function as the original in a competing platform_

Someone should appeal and bust their case that claims that APIs are
copyrightable. And don't forget those who supported this crookedness -
Microsoft.

------
nojvek
With Oracle slapping patent infringements left and right for Java APIs, I
predict in the next decade JAVA will sort of become irrelevant. I hope more
universities are taking note of this and not teaching JAVA to first year
students.

I also hope Oracle burns to ground in a decade.

------
tapirl
If Google gives up Java for Android now, Java will drop out of top-5 languages
in 5 years.

------
fauigerzigerk
So does IBM now have an enforceable copyright on SQL that Oracle infringed
upon?

~~~
pjmlp
People keep bringing SQL up, yet don't realize that SQL is an international
standard which one needs to pay ISO for, and also to pay for certifications.

Oracle has payed for SQL. Google has not payed for Java.

~~~
fauigerzigerk
The first SQL ISO standard is from 1987. Oracle's first commercial SQL DBMS
came out eight years earlier in 1979.

In 1987, Oracle was already the largest database vendor and IBM's database
business never recovered from that setback.

That said, I don't know if Oracle had some sort of licensing agreement with
IBM during those early years. The question is what any such agreement would
have looked like in light of the recent legal opinions on copyright.

~~~
pjmlp
Contrary to FOSS myths, SQL ISO standards aren't free and don't write by
themselves, Oracle had a seat at the table just like everyone else that
matters on the RDMS space.

IBM is doing pretty fine with DB 2 and Informix.

------
oldandtired
The problem for ORACLE is that if they win, they will have a Pyrrhic victory.
The old adage of "Be careful what you wish for, you may actually get it"
applies here.

Greed has consequences and greed will be the undoing.

------
guelo
What is the point of a copyright or patent trial if the biased Federal Circuit
can just overturn the jury verdict? It's an straightforward violation of the
7th amendment.

------
devit
Is this going to the Supreme Court or is this the final decision?

~~~
lmm
It's been sent back to the lower court to determine damages. After that Google
can appeal to the Supreme Court if they can find some grounds on which to do
so, and then the Supreme Court will decide whether to hear it or not.

~~~
AnimalMuppet
If I recall correctly, the Supreme Court declined to hear an appeal of the API
copyright question until Google had lost on fair use. Well, Google has now
lost on fair use. The Supreme Court may be willing to take the case now (that
is, before going back to the lower court to determine damages).

------
thisacctforreal
Will this have any reprocussions for AWS drop-in replacements?

------
vijaybritto
Will this push Google to move towards dart lang even more now?

~~~
jsjohnst
Wouldn’t Kotlin be the more logical route?

~~~
kodablah
Doubt it if they still want the JVM. Sure Java the language is gone, but
Kotlin on the JVM relies on the very non-Oracle-approved Java stdlib
implementations that are at the root of this suit. If you want to argue Kotlin
Native + NDK, sure, but it is very young (though I like it and have used it
myself).

~~~
carussell
Today, Google is using the Oracle-approved form. They already switched Android
from Harmony to OpenJDK in a previous release.

Since then, this suit has been about (a) deciding whether Google is guilty of
wrongdoing in the past, and (b) what the extent of the damages should be for
that historical wrongdoing should be, if any.

The outcome here doesn't really have any impact on the future of Android
(except if Google wanted to factor the suit into their decisionmaking for
their own reasons).

~~~
kodablah
> The outcome here doesn't really have any impact on the future of Android

While most of your point is true, I disagree with this part. Using lawyers to
tackle companies that succeed with only parts of your technology may send a
chilling effect towards future uses. Also, knowing that you are not allowed to
partake certain independent directions in the stack you choose for your
devices is a legitimate reason to fear the continued use of that stack. Some
are OK to them (e.g. conforming to the GPL on Linux) and some may not be (e.g.
not being able to write portions of the stdlib without dealing w/ OpenJDK
stewardship). I don't think these are their own reasons as much as they would
be the reasons used by anyone who fears technologies stewarded by litigious
outfits.

~~~
carussell
So you cut my comment off right at the part where I've pre-emptively addressed
your entire criticism, and then you write out a paragraph detailing this
criticism anyway because your position is contained squarely within the very
part of my comment that you chose to leave out?

~~~
kodablah
> (except if Google wanted to factor the suit into their decisionmaking for
> their own reasons)

> I don't think these are their own reasons as much as they would be the
> reasons used by anyone who fears technologies stewarded by litigious
> outfits.

~~~
carussell
You don't get to define "for their own reasons" to mean something else just so
that you have a something to argue about. Doing something for one's "own
reasons" means that the decision is theirs to make, in contrast to being
legally compelled to act in a certain way. It doesn't mean acting in a way
that nobody else would, nor acting in a way that nobody else would agree with.

~~~
kodablah
Ah, I took "doesn't really have any impact" as "doesn't really have any
practical impact" instead of "doesn't have any legal impact". I thought you
were making a point about it being Google's personal reasons they might
justify moving on as opposed to reasonable ones based on precedence of the
decision.

------
jrpelkonen
I am not a lawyer, but I wonder if Google could counter sue Oracle on the
basis that that Java now implements some methods originally introduced in
Google Guava?

------
didibus
What if this ends up true. Can Google just prefix all namespaces with google.
?

So now the API names are all changed.

Basically, if API are copyrightable, whats the minimal change to not consider
it a copy?

com.oracle.String/lowerCase

Could this become

com.google.String/lowerCase

So now the name is changed? Or does this all now becomes a case of any
similarity can be sued and on a case by case basis courts will jusge if its
too similar or not enough?

------
reacweb
IMHO, Google has stolen a very tiny piece of Java that Google thought to be
free (some judges agreed with this opinion). At the time of Sun, $100M was
really excessive. I think this case should be the opportunity to fix a very
very small punishment so that companies stop these frivolous litigations.

------
sroussey
I wonder if the meaning of this ruling will leak to other areas. For example,
is “boilerplate” in contracts and other legal documents copyrightable? Who
owns them? The lawyers, the law firms, the clients? Will attorneys pay other
attorneys to use the same phrases and paragraphs?

------
kraig911
I've read all the ideas around why or why not Google is liable or Oracle is
being frivolous... Can an "Expert" tell me what would happen to Google(and
Android by Association) if Oracle won full out? Besides the paying out of
billion(s).

------
gaius
I propose a compromise: fine Google billions of dollars, but it goes to the
taxman, not Oracle

------
julienfr112
Could Oracle be sued on the usage of SQL with it's products ? Or did they paid
something to Ibm to use it ?

------
shadowmint
So what now? An appeal of the appeal?

This is the legal drama that never stops giving...

~~~
AnimalMuppet
There are two next steps. One step is a retrial in the lower court, with fair
use no longer a defense. The other is an appeal to the Supreme Court on
whether an API can in fact be copyrighted.

If the Supreme Court appeal happens, it probably puts the lower court trial on
hold. If Google wins the appeal, then (I think) there's no case left to try in
the lower court.

------
onetimemanytime
Non-lawyer: is it over, as in Oracle won and judge must decide only the
payment? Wiki says that Federal Circuit is the final for these things (I guess
SCOTUS might review it...)

------
bitL
What other law stuff is Oracle going to test now? They already know they can
clone AWS/GCE API with no repercussions.

------
DannyBee
Federal circuit decides to not properly apply ninth circuit law again, news at
11.

------
mrbill
What's next? SCO winning an appeal? Sheesh.

------
ebcode
It is time. #deleteoracle

------
romanovcode
I bet google wishes now they'd picked .NET for Android.

~~~
bitmapbrother
Why would Google want to use a language that is encumbered with patent
promises and made by a company that has a history of shaking down Android
OEM's?

------
readhn
Does oracle have a case or not? If you were Oracle, would you be ok not taking
this to court?

~~~
Yetanfou
In this field "having a case" depends not so much on objective truth but on
subjective narrative, having enough money to pay more lawyers for a longer
time than the opponent, finding the right judge, making sure the jury is
stuffed according to plan and more of such skullduggery. If it were about
objective facts the case would have been over and done with in a month with a
definite conclusion, either it being OK to use API's without licensing or it
being a violation to do so. If the outcome were the latter there would have
been some bickering over how much to pay for said violation, add another month
for that.

Alas, this is not about objective truth and "having a case". It is the result
of a free but regulated market being infected by a parasitic organism which
has turned the regulator's defence mechanisms to its own purpose, the which
being the extraction of as much value as feasible while keeping the host
alive.

~~~
AnimalMuppet
The question here is not so much one of _fact_ , but one of _law_. And
stuffing the jury isn't an issue with the appeals court.

------
danjoc
Good. Initially, I thought the API decision was a bad one, but now I think the
courts got it right.

If you've ever wrestled long with getting a program to compile, you realize
it's non-trivial to wrap your brain around complex types. The API is a
language and the compiler is a runtime producing output. I can design my API
in something like Java and return null from all the methods while I do it. The
compiler will still produce expected results when I try to string bits of it
together.

For most languages, this work is hard, because everything is a runtime error
from the compiler. There are elegant and inelegant ways to solve certain
problems. The API determines that. It is itself a creative endeavor.

Google was given the opportunity to license the API. They still can under GPL,
but that means complying with GPL, which they evidently did not want to do.
Ruling in favor of fair use here creates a vague double standard. Business
models like that of MongoDB, who releases their code under GPL for open source
projects and charges a license fee for private projects, would become
questionable. "Well, you give it away already, so it's fair use to use it any
way we like without paying you!"

~~~
pcwalton
Would you apply your reasoning to JavaScript, so that Safari and Chrome would
be illegal due to failure to obtain a license for the JS APIs?

What about Linux? Linux copied the Unix syscall interface.

What about Wine?

~~~
strcat
There's the reverse of Wine now too with Microsoft's clean room (non-GPL2 and
not currently open source at all) implementation of the Linux kernel kernel
<-> userspace ABI.

