
Software Copyright and Innovation After Oracle v Google - sean_hogle
http://epiclaw.net/sean-hogle-articles/oracle-v-google
======
coldpie
This court case is, with no exaggeration, the most important software industry
case in decades, perhaps ever. As the article says, if you're familiar with
Android, Google, Chrome, Firefox, Edge (nee Internet Explorer), OS X, Linux,
and the Internet, it is no exaggeration to say that every single one of those
technologies, products, and companies are in violation of copyright according
to this decision.

Oracle is literally trying to destroy innovation in the software industry, and
they may just pull it off. Their products, their name, and their employees
should be shunned for trying to destroy the single most important economic
invention of all time: innovation in the software industry. This is not OK,
this is not just politics, and they must be stopped.

Read this article, spread the news, write your congresspeople, donate to the
EFF, and cancel your Oracle contracts.

~~~
yuhong
The funny thing is that FSF/LPF actually pushed for such a boycott of Apple
and a few other companies over the GUI copyright lawsuits during the 1988-1994
period. Needless to say, it wasn't effective and Apple etc eventually lost or
dropped the lawsuit anyway.

------
tzs
> Oracle appealed this decision to the U.S. Court of Appeals for the Federal
> Circuit ("CAFC" or the "Federal Circuit"). Because Oracle's case included
> patent claims, the CAFC had jurisdiction over the appeal, and so Oracle was
> able to avoid review by the U.S. Court of Appeals for the Ninth Circuit

I think this needs to be changed. I can't think of any good reason why in a
case like this, where it has both patent and copyright claims, that the
appeals need to go to the same court. Why not have the copyright issues
appealed to the Ninth Circuit and the patent issues appealed to the CAFC?

At trail court it makes sense to join issues that would normally be heard in
separate courts together when they involve the same underlying facts, because
there will be a lot of overlap in witnesses and evidence, and a trial court is
both a trier of fact and a trier of law. Holding separate trials in different
courts would be wasteful, annoying, and could get complicated and troubling if
different courts found different facts.

Those considerations mostly do not apply at the appellate level. The appeals
court does not determine facts. It does not hear witnesses. It just deals with
the record from the trial court and the arguments from the attorneys.

~~~
dragonwriter
> I think this needs to be changed. I can't think of any good reason why in a
> case like this, where it has both patent and copyright claims, that the
> appeals need to go to the same court.

Economy of justice concerns are the biggest reason, though there are other
reasons to keep the case together (e.g., because it is one case between the
same parties and different issues will rely on intersecting sets of
determinations, so splitting it by the domain of the _ultimate_ issues will
open up the possibility of conflicting rulings on the same intermediate
issues, which is not only ugly in and of itself, but especially ugly if the
various parts of the split case are both appealed from the Court of Appeals to
the Supreme Court.)

> Why not have the copyright issues appealed to the Ninth Circuit and the
> patent issues appealed to the CAFC?

I know the theory but has practice actually born out the supposed benefits of
the CAFC as the single Court of Appeals for patent cases? Why not just send
the whole thing to the Circuit Courts whether or not there are patent issues?

> At trial court it makes sense to join issues that would normally be heard in
> separate courts together when they involve the same underlying facts,
> because there will be a lot of overlap in witnesses and evidence, and a
> trial court is both a trier of fact and a trier of law. Holding separate
> trials in different courts would be wasteful, annoying, and could get
> complicated and troubling if different courts found different facts.

You really get all the same issues with splitting questions of law, since the
ultimate legal decision on a patent question may depend on legal decisions on
evidentiary and other questions also raised on appeal, on which ultimate non-
patent counts in the same case may also rely. A clean separation is not
realistic.

> The appeals court does not determine facts.

Yes, it does, though the standard of review for fact questions is usually one
of "clear error".

~~~
throwawaykf05
_> Why not just send the whole thing to the Circuit Courts whether or not
there are patent issues?_

Apparently, because previously different Circuit Courts interpreted the Patent
Act differently, leading to forum shopping as problematic as what happens in
ED Texas today. Except back then there was no recourse -- at least today you
can take your appeals to a more consistent court.

 _> I know the theory but has practice actually born out the supposed benefits
of the CAFC as the single Court of Appeals for patent cases? _

This study partially tackles that question from multiple angles and the
conclusion is mostly favorable to the existence of a CAFC:

[http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2231312](http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2231312)

------
juliangamble
"The software industry, and indeed every industry that relies on software, has
thrived for decades without the encumbrances of proprietary claims over APIs.
Because the Federal Circuit's decision destroys the balance between
copyrightable expression and uncopyrightable ideas in software, it threatens
competition and innovation. The Ninth Circuit should repudiate it at the
earliest opportunity."

BAM!

------
derekp7
When presenting this to someone, is it helpful to use a human language
analogy? For example: In english, when you refer to a "car", you are talking
about a machine that moves people on roads. Whereas when you refer to a
"boat", you are talking about something that floats on water. What Oracle
wants Google to do, is to make up a new name for "car" and "boat", and try to
get all developers to adopt these new definitions when using Google's
products.

~~~
Zikes
That doesn't sound very clear to me. I think a better analogy would be: Google
and Oracle both made cars. Google put the gear shift in the same location as
Oracle.

~~~
thescriptkiddie
I think an even better analogy would be:

Google and Oracle and a bunch of other companies all make cars. All of the
cars have a gearshift with the same pattern, because long ago the company who
built the first car encouraged other carmakers to copy their design. But then
Oracle buys the company who built the first car and tries to sue Google (and
only Google) for copying their shift pattern.

~~~
alok-g
Did Sun encourage others to copy the design though (genuinely asking)? They
allowed others to use their designs. I have been under the impression that
while Java was open-sourced, there was a a specific clause in the license to
prevent what Google did.

~~~
Teckla
_Did Sun encourage others to copy the design though (genuinely asking)?_

My understanding, which may be incorrect, is that Sun intended for their JVM
to be the reference version, and they envisioned a lot of companies creating
their own competing (but compatible) JVMs.

I don't recall any hints or suggestions "copying" the Java API would be a
problem. I believe Sun planned on making money by charging for Java
implementations to be tested against the TCK in order to earn the Java label.

~~~
alok-g
I had read somewhere long time back that mobile devices were explicitly
excluded from this in the license.

------
Twisell
It's also interesting to read the counterpoint arguments of Florian Mueller on
his FOSS patents blog.

[http://www.fosspatents.com/2014/01/api-copyrightability-
to-b...](http://www.fosspatents.com/2014/01/api-copyrightability-to-be-
confirmed.html)

The crucial point being that code written for Dalvik is actually not
compatible with Java runtime. So how can you argue that borrowing code without
consent is good for interoperability... when the product you deliver just
break it?

~~~
Oletros
The same Florian Mueller that never puts a disclaimer saying that he was an
Oracle consultant for the case in the Oracle vs Google posts?

~~~
Twisell
Thats unfair he put a lot of disclaimers in his post. It's just that they
don't appears in the TL/DR that people share afterwards :P

------
ChuckMcM
I explained it to my parents by saying "You can copyright your street address,
and anyone who writes it on an envelope to be mailed to you has just committed
a copyright violation."

They said that sounded pretty stupid, I agreed, but its the current law as far
as I can tell.

~~~
alok-g
Could you explain more please.

Making up a street address would normally not involve creative expression, but
even if it does, its intended purpose is to allow others to use the address
for various purposes, which would then be fair use.

In this analogy, Google did not mail something to this address, rather created
another house with the same address so that anyone sending mail to Oracle is
able to redirect it to Google without changing the address (by posting into a
different mailbox).

Design of an API certainly involves creative expression, so much that many
developers are not able to get it right. So I do not think the analogy is
valid anyways.

------
elevenfist
The basic analogy is that an api is like the pointy end of a drill bit. Google
and Oracle want to help people drill in screws or hex keys. Sun started
selling flat screw bits, and google, in order for handymen (developers) to be
able to use the same skills, also started selling flat bits (or flat head
screws if you prefer).

The one distinction complicating this a little is more thought and creativity
goes into designing an api then designing the interface between a drill bit
and screw.

------
jbandela1
This is a risk of using proprietary languages. Even if the implementation is
open source if a single company actually controls the language you are running
risks. In addition with Java there is the precedent of Sun and Visual J++ so
it was known that Sun would go after people who provided incompatible
implementations. This whole saga is simply a very bad move on Google's part
with foreseeable consequences.

~~~
Oletros
The difference is that Microsoft called the incompatible implementation Java.

Google never called it Java

~~~
jbandela1
I don't see a significant difference. If you look at the Google Android
developer page
[http://developer.android.com/guide/components/fundamentals.h...](http://developer.android.com/guide/components/fundamentals.html)

The first sentence is "Android apps are written in the Java programming
language."

If that is not calling it Java, it is close enough as to be indistinguishable
to the average programmer.

~~~
Oletros
Yes, the programming language, not the platform. Android doesn't run in a Java
Virtual Machine, it only uses the Java syntax

Microsoft was sued because they certified the platform and it was
incompatible.

Google/Apache never certified the platform to call it Java

------
Ace17
The Sega-vs-Accolade times seem so far away ...
[https://en.wikipedia.org/wiki/Sega_v._Accolade](https://en.wikipedia.org/wiki/Sega_v._Accolade)

------
Oletros
The thing I will never understand about the case is why the one accused is
Google when they used the Apache Harmony implementation done by the Apache
Foundation.

------
tomcam
Well reasoned. I still cannot understand how the court chose to ignore the
unusually clear precedent of Lotus v. Borland. That took some contortions.

