
Second Oracle v. Google trial could lead to headaches for developers - gman83
http://arstechnica.com/tech-policy/2016/05/round-2-of-oracle-v-google-is-an-unpredictable-trial-over-api-fair-use/
======
discardorama
_Google petitioned the Supreme Court to hear its case, joined by allies
including Yahoo, HP, Red Hat, and open source advocates, but was rebuffed.
Microsoft, EMC, and NetApp urged the high court to let the Federal Circuit
ruling stand, and that 's what happened._

WHY?? And here I thought Microsoft was coming around. Fuck these assholes (and
EMC and NetApp too). What do these people have to gain by letting the ruling
stand? It just makes interop harder. And here they are tapping into the Linux
API shamelessly[1]. Shame on you fuckers.

[1] [http://arstechnica.com/information-technology/2016/04/why-
mi...](http://arstechnica.com/information-technology/2016/04/why-microsoft-
needed-to-make-windows-run-linux-software/)

~~~
coderdude
I can think of a few good reasons:

\- Microsoft benefits when Google's mobile platform is hurt.

\- Microsoft has many APIs so why the heck would they want to overturn a
decision that puts them in a position of power?

If those weren't enough, Google has poached Microsoft talent for years. Maybe
there are people at Microsoft who just don't like Google and will work to
screw them over. Most likely though it's more to do with the two reasons I
listed above.

Plus, a little too much emotion in your post. Hard to believe you can feel any
emotion about this whatsoever let along being basically pissed off. This is
super boring tech news.

~~~
cle
Microsoft also has a competing platform to Java that might benefit greatly if
Java's open foundations were shaken: .NET

------
nathanaldensr
This whole thing is unbelievable to me. We have Oracle spending who knows how
much money suing Google and claiming that APIs are copyrightable. At the same
time they, along with virtually every software company ever, rely on
documented, standardized, ubiquitous protocols like IP, TCP/IP, and HTTP to
create software that does anything useful. Even the most basic notepad or
calculator application relies on APIs to function. I cannot imagine a world
that forces us to treat every use of an API as a must-be-legally-contracted
integration. Even the most trivial applications would never get completed
because the cost just to agree to all these contracts would exceed any ability
to generate profit from the resulting software.

If Oracle wins then in a way this might actually be _good_ for open source;
software developers would seek out the path of least resistance: APIs that
could be licensed freely. This could simply extend the push of open source
_code_ further to _APIs_.

~~~
ktRolster
There's a strong fair use defense for interoperability ( _Sony v Connectix_ ).
In the hypothetical situation that someone claimed copyright on TCP/IP,
presumably that would be a strong enough defense.

Google is in difficulty here because they didn't use Java for purposes of
interoperability; their version isn't even compatible. If they had, Oracle
would have no case.

The appeals court left open the question of whether Java being _easier for
developers_ because they already know Java counts as a fair use defense.

It might count, and then Google is free.

 _If Oracle wins then in a way this might actually be good for open source;
software developers would seek out the path of least resistance: APIs that
could be licensed freely._

That is why the FSF supported Oracle before the supreme court.

~~~
jkn
It's quite a stretch to say that the FSF supported Oracle before the Supreme
Court. Also you seem to think that the FSF supports API copyrightability as a
means of making free software more attractive to developers. This is not at
all their position. Here is what they said at the time of the Jury verdict in
the first trial[1]:

 _Were it grounded in reality, Oracle 's claim that copyright law gives them
proprietary control over any software that uses a particular functional API
would be terrible for free software and programmers everywhere. It is an
unethical and greedy interpretation created with the express purpose of
subjugating as many computer users as possible, and is particularly bad in
this context because it comes at a time when the sun has barely set on the
free software community's celebration of Java as a language newly suitable for
use in the free world. Fortunately, the claim is not yet reality, and we hope
Judge Alsup will keep it that way._

As for their brief against Google's petition to the Supreme Court[2]:

 _SFLC and FSF take the position that the decision below is wrong, but that
certiorari should not be granted for three reasons: (1) the decision of the
Federal Circuit merely mispredicts what the Ninth Circuit would do if it had
been the Court resolving Oracle 's appeal from the District Court's finding
that the application program interface declarations at issue are non-
copyrightable; (2) the decision rests on narrow factual grounds; and (3) there
is no public interest in continuing to adjudicate this dispute because Google
can now and could have used all material at issue under the terms of the GNU
GPL v2._

What to make of this? It's a bit convoluted. On the general issue of
proprietary APIs, the FSF supports Google's position. But they think the
judgement against Google from the Federal Circuit court carries virtually no
value as precedent, as they say in their brief[3]:

 _Despite the manifestly erroneous character of the decision below, the
petition for writ of certiorari should not be granted. The precedential weight
of a decision so evidently mispredicting the law of another Circuit is
essentially nil._

Now independently of the Oracle v. Google dispute, they would prefer if Google
were using the GPL license for Android. Wouldn't it be nice if the bad Federal
Circuit judgment could incentivize Google to use the GPL, without affecting
other cases? I think that is the tactical advantage the FSF saw in opposing
Google's petition to the Supreme Court. And it might have been a good call, as
Google is indeed switching to the GPL Java implementation[4].

[1] [https://www.fsf.org/news/fsf-statement-on-jurys-partial-
verd...](https://www.fsf.org/news/fsf-statement-on-jurys-partial-verdict-in-
oracle-v-google)

[2] [https://www.softwarefreedom.org/news/2014/dec/08/sflc-
files-...](https://www.softwarefreedom.org/news/2014/dec/08/sflc-files-
against-scotus-cert-google_v_oracle/)

[3]
[https://www.softwarefreedom.org/resources/2014/google_v_orac...](https://www.softwarefreedom.org/resources/2014/google_v_oracle-
sflc_cert_amicus.html)

[4] [http://arstechnica.com/tech-policy/2016/01/android-n-
switche...](http://arstechnica.com/tech-policy/2016/01/android-n-switches-to-
openjdk-google-tells-oracle-it-is-protected-by-the-gpl/)

------
cft
It was a grave blunder for Google not to buy Sun. Besides Java, they would
have gotten MySQL, ZFS and some hardware that would all be useful at Google.

~~~
usrusr
Imagine Google the cloud operator having to tread carefully not to get into
political infighting with Google the SPARC manufacturer. Google had very good
reasons to stay clear of those recipes for disaster.

They could have still done a "Motorola" with Sun, but that's hindsight
speaking.

~~~
spacemanmatt
Pish. Oracle didn't buy Sun for SPARC any more than Google would have. I don't
hear anything about SPARC infighting at Oracle.

~~~
usrusr
Sure. But introducing a hardware division into an organization that did not
have one before can not only be useless, it can be harmful.

Oracle has much less direct investment in datacenter operation that could
suffer from unwanted influence of in-house hardware than Google.

~~~
spacemanmatt
I still find it a bit silly to think Google would have been menaced by
infighting from one of their acquisitions.

------
jakelarkin
I suspect if Oracle's wins the case ...

1) they will win a lot of money in the near term but it will greatly diminish
the popularity of Java/JVM in the long run because most tech companies shudder
at the thought of having Oracle be the slumlord of their core program
language.

2) there will be a painful transition of FUD and lawsuits but open source
languages/libraries will be ultimately become stronger in industry b/c the
licenses can easily be extended to API rights. Restrictively or vaguely
licensed code will be looked up on with greater suspicion.

~~~
snambi
There is no point using java, when Oracle can sue you anytime for any reason.
Time to get away from Java, if oracle wins.

~~~
dragandj
Only if you violate Java's GPL license. Google took a GPL code and licensed it
under a different license - that's why they are sued. So, even if Google
looses, that basically strengthens the open source case AND Java, meaning that
you can not hijack Java (GPL) and make its offshot non-free (in a copyleft
sense).

~~~
icebraining
_Google took a GPL code and licensed it under a different license - that 's
why they are sued._

The only code that was alleged to be copied were a few test files (which
weren't even distributed) and a 9-line function called "rangeCheck".

There was a second copyright claim on the APIs, but Oracle didn't claim the
_code_ was copied, just that the reimplementation had the same "structure,
sequence and organization" (that is, same names and arguments).

------
mancaus
What might this mean for open source platforms that target non-standard Java
back-ends? Take scalajs[1] for example. It reimplements Java API's but not for
the direct purpose of interoperability with standard Java. I believe this will
be the case for Scala native as well.

In both those cases, it allows code to be written that targets both, so I
would think interoperability would be a strong argument. But is that not the
case for Android as well?

In this case the reimplementation is in Scala, but it could be argued that the
"structure, sequence and organisation" definition of copying could apply.

If there is any chance this could be ruled as infringing copyright, then
Oracle would have a powerful platform lock-in, and every line of code
targeting their API's would contribute further to that.

[1] [https://github.com/scala-js/scala-
js/blob/master/DEVELOPING....](https://github.com/scala-js/scala-
js/blob/master/DEVELOPING.md)

------
sandGorgon
This would pretty much projects like Wine or GNUStep would be illegal. For
those who don't remember the days of the Microsoft Empire, this is a pretty
big thing.

Once AWS becomes a monopoly (which should happen anytime in the 5 to 6 yrs),
the only way to challenge the gorilla would be to build an API compatible
competitor.

This ruling would make it illegal.

~~~
ktRolster
No. There's a fair use defense for interoperability. Wine is clearly built for
interoperability purposes, so they are ok.

Google's primary difficulty in this case is convincing the jury that they have
a fair use defense, when their version of Java is technically incompatible.

~~~
farcical_tinpot
No, the difficult is working out what on Earth fair use actually is here.

The fact that what Google has is not strictly compatible with Java is neither
here nor there....because it isn't Java.

~~~
ktRolster
The one who suggested the compatibility defense for fair use was the appellate
judge, so I'd say it has at least some chance of working.

~~~
farcical_tinpot
Who suggested it is neither here nor there. You don't use an API for anything
other than compatibility and code reuse for developers. It's easily
demonstrable. If it isn't the develop tools market has disappeared.

------
Silhouette
*In the United States.

Let's hope that if this goes badly, the rest of the world retains some sense
of sanity and doesn't allow intellectual property laws to be used to restrict
essential principles like interoperability.

~~~
trimtab
That likely depends on what trade agreements exist between your country and
the US. The dominoes could fall quite quickly.

~~~
Silhouette
Indeed, though that is exactly the sort of reason TTIP is starting to attract
attention for all the wrong reasons here in Europe.

------
hexagonc
Maybe I'm thinking about this incorrectly but Google's use of the Java APIs
seem to me to be the quintessential case of fair-use for interoperability.
It's not like Android is shipped with a JDK and is constantly exercising the
Java API internally on Android; they are only used so that I can write a Java
algorithm on my desktop and use the source code to generate Dalvik bytecode
that does something roughly similar to what the Java bytecode would do. The
Java APIs are just a means to an end. The surface area of the copyright
infringement is limited to the desktop Android build tools which convert Java
sourcecode and some bytecode into Dalvik, i.e., interoperability. Now, that is
only one-way interoperability so maybe that is enough to sway the matter away
from fair-use.

------
forrestthewoods
So what would actually happen for reals in a copyrighted API universe? If
someone wants people to interact with their API (such as a website) they will
obviously license their API in such a way. And if they don't they won't.

So, what terrible things would happen? Most programmers agree it'd be
terrible. I trust the masses. But for discussion's sake could someone provide
a concrete example or two?

Somewhat related, I believe ARM's instruction set is protected. Probably by
patents? I've always felt that source code should NOT be patentable but SHOULD
(and is) be copyrighted. Where an API falls and how to draw that line I'm not
sure.

~~~
ktRolster
There's a fair use defense for interoperability.

So despite all the hype, this case is unlikely to have a huge effect on the
software industry.

~~~
farcical_tinpot
_There 's a fair use defense for interoperability._

Which hasn't been defined in this case.

 _So despite all the hype, this case is unlikely to have a huge effect on the
software industry._

Oracle might try and paint that picture, but I'm afraid it will. There can be
no software industry if APIs are subject to copy-write, and if they are,
simply using them always comes under fair use. That's why....you use them.

~~~
ktRolster
Your understanding of the law is really weak. Go read this, and keep reading
it until you have some understanding of it:
[https://www.eff.org/files/2014/11/10/oracle_v_google_13-1021...](https://www.eff.org/files/2014/11/10/oracle_v_google_13-1021.opinion.5-7-2014.1.pdf)

If there are any difficult terms you don't understand, look them up in Google.
Build yourself some understanding and you'll say less stupid stuff.

~~~
farcical_tinpot
_Your understanding of the law is really weak._

Your understanding of how software works is non-existent, and knee-jerks legal
rulings will not change that I'm afraid sweetheart.

------
dragonwriter
One thing to note is that if Google loses, this is going back up the appeal
chain and will no doubt take another whack at the Supreme Court _on the
original issue_. We don't know why the Supreme Court denied cert., but among
the reasons that Oracle said that it should do so was that the appeal was
interlocutory, and there is a preference in appeals courts agains such appeals
-- that is, because the ruling that resulted in sending the case back to the
trial court to decide the fair use issue, the decision was non-final, and, if
the Supreme Court _were_ to hear an appeal on the issue raised (which Oracle
also argued that they shouldn't, for other reasons), they should do so only
after a final decision in the courts below.

Because its possible that that was the reason the Supreme Court declined to
hear the appeal, its certain that should Google lose at trial on the fair use
issue, they'll be back up the appeal chain not only on that issue, but also
attempting to raise the copyrightability issue with the Supreme Court again.
Which may be more inclined to take and decide the issue on a final decision
(and, depending how long things take to get through the courts, and what
happens in the political sphere, may be a substantially different court than
the one that refused the case previously, anyway.)

Also, since the patent claims are now gone from the case, I think the
inevitable (whoever wins) first appeal from the trial court will now go to the
Ninth Circuit and not the Federal Circuit, and its quite possible that the
Ninth Circuit will rule differently on the issue than the Federal Circuit did.

------
tzs
It should be noted that the Court of Appeals for the Federal Circuit's ruling
in this case does not set precedent for future copyright cases. For more
details, see this comment from an earlier discussion:
[https://news.ycombinator.com/item?id=11377318](https://news.ycombinator.com/item?id=11377318)

------
maxlybbert
If I remember correctly, the appeals court did not rule that APIs are
copyrighted, only that they might be copyrightable in some cases. Judge Alsup
had ruled that they couldn't be copyrighted; that if you used the four-factor
test, you would always always come to the "outside copyright protection"
answer in all cases.

~~~
zerocrates
The Federal Circuit didn't remand on the question of copyrightability, it
reversed. In other words, it explicitly held that the Java APIs at issue in
the case _were_ entitled to copyright protection, not merely that an API
_could_ be.

~~~
maxlybbert
I had to dig up the ruling (
[https://www.eff.org/files/2014/11/10/oracle_v_google_13-1021...](https://www.eff.org/files/2014/11/10/oracle_v_google_13-1021.opinion.5-7-2014.1.pdf)
). It looks like my memory was faulty: "Because we conclude that the declaring
code and the structure, sequence, and organization of the API packages are
entitled to copyright protection, we reverse the district court’s
copyrightability determination with instructions to reinstate the jury’s
infringement finding as to the 37 Java packages. Because the jury deadlocked
on fair use, we remand for further consideration of Google’s fair use defense
in light of this decision" (pg. 5).

------
_Codemonkeyism
One thought over the last years MS has seen the light, but they haven't. Maybe
someone will sue them over their Ubuntu on Windows, it's not about
interoperability either.

------
chris_wot
Seriously, when a corporation creates a VM and enforces a standard, and
provides APIs for use in their framework/software ecosystem - just don't adopt
it.

If it is done via a Foundation with an API/ABI that is freely available to use
- then use this.

But never adopt a framework created by a corporation if you can avoid it. And
that includes .NET. While the current corporation may be benign, some other
rapacious and unethical corporation might buy them out - then you are screwed.

------
einrealist
Of course it is a problem with ecosystems that already built around APIs like
JSE/JEE / Java core. It is only a problem, because people did not care much
about licenses or questioned copyright in terms of APIs.

I believe that APIs are copyrightable. It should be up to the creator to
specify licenses that suits his agenda. I believe, if API users care about it
and like to build a business on top, only APIs and standards with Copyleft
licenses will thrive.

------
sunstone
If it turns out that api's are copyrightable then in the short to medium term
this will cause some indigestion. In the longer term though companies and
developers will just insist that api copyrights are put in the public domain
or they won't use them. Lockin avoidance.

------
spacemanmatt
Once again, I just miss Groklaw.

