
Google vs. Oracle: The Supreme Court will decide software development’s future? - tosh
https://www.zdnet.com/article/the-supreme-court-will-decide-software-developments-future-in-google-v-oracle/
======
remarkEon
Here's the SCOTUSblog page for the case. It's got all the related Amicus
briefs, and oral will be posted there once it happens (usually a day or two
after) that will include a transcript and audio. Doesn't look like a date has
been set yet, as far as I can tell. Oyez also usually does an awesome mashup
with the transcript and audio from oral argument. I encourage everyone to
check out that page. A favorite of mine is below.

[https://www.scotusblog.com/case-files/cases/google-llc-v-
ora...](https://www.scotusblog.com/case-files/cases/google-llc-v-oracle-
america-inc/)

[https://www.oyez.org/cases/2013/13-132](https://www.oyez.org/cases/2013/13-132)

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giancarlostoro
I really hope they invite plenty of industry leaders to speak. Especially
relevant ones like Guido who made Python and his languages API is reused.
Theres gotta be others where the API was copied verbatum and the original devs
dont mind. Hell OpenJDK was made cause Sun didnt care about API copyright when
the GNU peeps made their own libre JDK.

~~~
wyldfire
I don't think oral arguments at SCOTUS or other high courts ever work like
that. Guido et al can submit an amicus curae brief. Many have for this
particular case (EFF, Mozilla, Mapbox, Medium, Patreon, Etsy, and Wikimedia
e.g.)

~~~
dave5104
Oral arguments in front of SCOTUS are surprisingly quick and short. I was able
to go and sit in the "audience" one day back in 2013, and it took only about
an hour for each case (got to see 2 of them).

The point of the oral arguments (at least for the cases I saw) was for the
justices to essentially ask clarifying questions to help make up their minds.
They had already thoroughly reviewed the case documents, amicus curae briefs,
etc.

~~~
segfaultbuserr
How do one become an audience of a Supreme Court (or federal courts) trial in
the U.S?

~~~
colejohnson66
In addition to standing in line, you need to get up _really_ early. IIRC, you
probably want to arrive before 5 AM.

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staticassertion
I am somewhat ignorant, so I would love it if someone could fill me in on what
I'm missing.

* APIs are just as novel as implementations. API design is hard, and interesting, and it's code just as much as a library is code.

* While in this case it would be nice for Google to win because it's a case of a Proprietary software being used for Open Source, I see a far more daunting problem. I see massive companies like AWS reimplementing open source projects' APIs with proprietary solutions, and I'm not sure if copyleft licensing would be able to protect them if Google wins. That sounds far more dangerous to me than a company being able to copyright its API.

* People say this would be a disaster. Is it not the case that, if this happened, that _new_ and novel APIs could be copyrighted? Why is that bad? The difference between a free/proprietary API is that you can't use a drop-in replacement, but we already avoid proprietary software, or overly restrictive software, all the time. So wouldn't we just continue doing so?

edit: From another of my posts, to put it this way:

To me, if I write a program under license X, it is strange to me that someone
can reimplement my program's API under an incompatible license Y. To me, that
violates my license, and software licenses are enforced via copyright
protection.

~~~
BurningFrog
> _API design is hard, and interesting,_

OK, fair enough.

But plenty of difficult and interesting things are not patentable.

> _and it 's code just as much as a library is code._

It doesn't execute, so it's not code!

~~~
unlinked_dll
If it's text it's code. The fact that it doesn't do anything doesn't enter the
argument.

~~~
BurningFrog
1\. By that logic this post is code;

2\. I just _entered_ it into the argument!

~~~
unlinked_dll
All text is copyrightable including source code and the comment you just
typed. In fact when you look at TOS for websites you'll notice that you give
an indefinite copyright to works by yourself on their platform including
images, posts, comments etc etc etc.

The fact that the code is never executed doesn't enter into the argument.

The argument is whether a clean room reimplementation violates their IP
rights.

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shmerl
EU courts got it right, and declared APIs non copyrightable already. Time for
US Supreme Court to do the same, and fix the mess lower courts created.

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exabrial
I hope the supreme court understands the significance of this. This decision
will change the direct history of the world.

~~~
AmericanChopper
While I’m really hoping that Google wins this, I also hope that the Supreme
Court applies the law as they see it, without any consideration at all for the
social impact. If you want a law change, you should be hoping to see that come
out of the legislature, not a branch of government that specifically does not
have legislating powers.

~~~
blululu
Something to consider in the case of copyright law is that the copyright is
explicitly justified in the Constitution by the potential benefit to
society[1]. A large part of this case comes down to the meaning of fair use
and whether ownership of API is justified according to the cost/benefit that
it presents to society.

[1] US Constitution: "To promote the Progress of Science and useful Arts, by
securing for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries"

~~~
AmericanChopper
Copyright is not a constitutional right, which you’d see if you hadn’t trimmed
the opening phrase of that section out of your quote

> Clause 8. The Congress shall have Power * * * To promote the Progress of
> Science and useful Arts, by securing for limited Times to Authors and
> Inventors the exclusive Right to their respective Writings and Discoveries.

[https://law.justia.com/constitution/us/article-1/50-copyrigh...](https://law.justia.com/constitution/us/article-1/50-copyrights-
and-patents.html)

All this does is allow for Congress to pass copyright legislation, without
violating the 1st amendment, which it otherwise would.

~~~
wahern
> All this does is allow for Congress to pass copyright legislation, without
> violating the 1st amendment, which it otherwise would.

The First Amendment wasn't even drafted, let alone ratified, before the US
Constitution and its Copyright Clause came into effect.

The Copyright Clause exists because the Federal government's expansive
Commerce Clause powers wouldn't exist for at least another 100 years. Without
an express grant, the Federal government wouldn't have had any power to grant
and regulate copyrights.

Under modern jurisprudence, the Copyright Clause is unnecessary to grant the
Federal government jurisdiction as copyrights are an archetype of a national
commercial domain; even the most conservative rollback of Commerce Clause
jurisprudence would be unlikely to change this. Instead, many legal scholars,
including several justices in uncontended dicta, have opined that the clause
effectively _limits_ the Federal government's powers by restricting the scope
of Federal copyrights (copyrightable subject matter, defenses to infringement,
etc) to what was cognizable under the Common Law in 1789. (Indeed, the
majority said exactly that regarding time limits, though AFAIK it's only in
dicta have they said the clause implicitly limits copyright powers more
generally.)

So, for example, Congress could never completely legislate away a Fair Use
defense. Likewise for doctrines like the Idea-Expression dichotomy, which
Google heavily relied upon in their first trial (less so in their second trial
because of appeal court decisions) to argue that APIs weren't copyrightable in
the first place.

It's true that the First Amendment is used--and used more often--to restrain
the reach of copyright. But that's mostly because the First Amendment has
undergone an expansive reinterpretation similar to the evolution of the
Commerce Clause. The drafters would have perceived little, if any, tension,
between the Copyright Clause and the First Amendment--mostly because of how
they understood terms of art like free speech, but also because times were
simpler then and the flaws and ambiguity in their legal concepts hadn't yet
been revealed by 100+ years of litigation.

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bori5
We always see the anti-Oracle/FreeAPI’s regards this story, but I’m curious
who out there is on Oracles side in this? Are there any other major players or
even small ones that people know of that would like to see Oracle win this
case ?

~~~
unlinked_dll
I'm on Google's side professionally because it affects my livelihood directly.

I'm on Oracle's side dogmatically because I think there's nothing in the law
that says they can't copyright an API.

I'm on neither side personally because I think this whole case is a massive
failing by the law to adapt to new use cases.

~~~
Aloha
Copyright is a grant, not a natural right, which generally means you can only
copyright what the legislature says you can.

~~~
paulddraper
Sure. But if I can copyright a screenplay, what's to say I can't copyright an
API?

It's not clear to me why one copyright would be legitimate and the other not.

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oefrha
One more reason the rest of the world has to up their game so that a bad
decision by a U.S. mega corp or U.S. court don’t leave all of us with no
alternatives.

~~~
TheDong
Unfortunately, almost the entire world signed on to the Berne Convention [0],
and it's basically impossible to change it anymore. It predates the internet
too, so it has silly things like "minimum copyright term must be 50 years
after the death of the author" and makes no allowances for the copyright of
technological content.

The entire world has already handcuffed itself to the bad decision of having
incredibly restrictive copyright laws, so we already are in a pretty bad spot
there.

[0]:
[https://en.wikipedia.org/wiki/Berne_Convention](https://en.wikipedia.org/wiki/Berne_Convention)

------
jolmg
I wonder who has copyright over the file API (e.g. open(), close(), etc.).
Since filesystems are written by implementing this common API, I guess they'd
all be infringing someone's copyright. Also language interpreters and standard
libraries that wrap those OS facilities to make them available in their
language. Linux PAM modules are built by implementing an API defined by PAM.
Language wrappers which allow us to use libraries written in different
languages would all be violating copyright too, I guess. No more using GTK in
a language different from C, for example. How far does this go?

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freepor
If Google wins, does that mean that anyone can make third-party compatible
software without permission from the owner? That third-party Teddy Ruxpin
tapes, for example, which were sued out of existence, would be protected?

[http://docs.law.gwu.edu/facweb/claw/ch5b.htm](http://docs.law.gwu.edu/facweb/claw/ch5b.htm)

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timwaagh
i think Oracle has a very weak case, because i think it and especially its
predecessor have always presented java as an open software, even going so far
as to standardize it so that others could easily implement, resulting in the
many implementations of the java platform we have today. claiming copyright
after all that should never hold up in front of a judge.

~~~
tsimionescu
Java has always been copyrighted, and Sun has already used that copyright
against to shut down an implementation that was not conforming before - see
Microsoft Java (later kept alive for a while as J#).

~~~
pseudalopex
Sun used the Java _trademark_ against Microsoft. The case was settled out of
court.

------
Ericson2314
While fuck Oracle and all that of course, I actually must admit I disagree
that interfaces are trivial and, especially, not creative and thus worthy of
copyright.

I think interfaces are super creative, way more distilled ideation than
implementations which are often bogged down with mundane details. I and work
try to write programs very compositionally, and good interfaces are _the_
keystone that makes this possible and productive. Put in a slogan, I must
rather be forced to replace and rewrite my favorite implementations than
replace and rewrite my favorite interfaces.

Perhaps think a better argument in a better world is a symmetrical fair use
one where if you invite people to consume (re provide) and interface, you must
also allow people to provide (re consume) it. Unlike e.g. a flu vaccine, the
market isn't preexisting but built around the interface. I dunno, I'm still
thinking it over.

Of course, given that's copywrite is insane, it might be prudent to pretend
otherwise!

(lastly a fun fact: harmony alone isn't copywritable while melody alone is.)

~~~
simonh
The reason I dislike API protection is that an API is a description of a
problem, not a solution to the problem. It may be a useful, well thought out
description, but that’s all. It’s the plot, not the story and plots aren’t
protected by copyright.

In principle the plot is simply a byproduct of writing the story. Yes authors
often plan out the plot first, but they don’t have to. If you just write a
story as it comes to you, it will still have a plot. Likewise with an API.

~~~
staticassertion
A novel API can totally be a solution to a problem, though. Hence API design
being an area that we all spend lots of time thinking and learning about.

~~~
simonh
Sure, but equally prospective authors spend a huge amount of work creating
great plots, and a terrible plot can wreck an extremely well written story.
They still can't copyright or otherwise protect them though, for good reasons.

Protecting plots would have terrible negative consequences for creative arts,
just as protecting APIs would have terrible consequences for the software
industry. It's not 100% directly comparable, APIs are often more explicitly
stated than plots, but I think the analogy is close enough to be useful.

~~~
jariel
An API is not a 'plot' \- it's a very specific articulation of information.

An API is more like a set of chapter headings and their descriptions.

It doesn't matter that they are 'not a solution' to anything.

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pasttense01
Remember: Congress always has the ability to change the law.

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webboynews
For once rooting for Oracle. They may be slimy but Google needs to be
dethroned for the tech world to progress.

~~~
nitrogen
If it's Oracle vs. Google, Oracle is the slime king.

Preventing the reimplementation of APIs is not the way to dethrone Google;
this is one instance where we fall on the same side.

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jariel
"While valuable, there's nothing creative about an API."

This quite fundamentally flawed. In many cases, the APIs are the most
important and hardest work, and the implementation is arbitrary.

~~~
dragonwriter
> In many cases, the APIs are the most important and hardest work

Importance and hard work aren't the issue. The particular sense of expressive
creativity protected by copyright, distinct from the kind of functional
invention protected, if at all, by patents, is the issue. APIs are (often not
particularly novel, but sometimes quite nov) functional inventions, not works
of authorship. Yes, API design is _critically important_ to the functionality,
sometimes.the most important and hardest work in building the functional
software. That is not an argument for copyrightability, however. It's more of
an argument against it.

~~~
jariel
I get that 'hard/creative/important work' isn't the core of the legal issue, I
was referring to the statement in the text, which I think is quite wrong.

But APIs are, I think, 'works of authorship'. It seems rational to me that
APIs should have the same copyright protections as code, poetry, music, etc..

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hackerbabz
I can’t understand the practical effect of a copywriting an API.

Why would a company publish an API if they didn’t want people to use it? Paid
APIs exist as well.

Why does copyright stop the example of sharing photos between different
services? What’s stopping Google from rejecting photos from nonGoogle devices
right now?

~~~
staticassertion
AFAIK the issue is not using the API, it's reimplementing it verbatim.

For example, AWS has done this a lot - many of AWS's services are 'drop in'
for open source projects, making it easy to migrate off of, say, RabbitMQ, or
Cassandra, or Mongo, and over to SQS or one of their databases.

If Google loses those open source projects could protect themselves against
this by copyrighting their APIs.

~~~
hackerbabz
Now I’m even more confused. That sounds completely different from copyrighting
an API.

Why shouldn’t a company be able to copyright the implementation? That’s the
work they did.

~~~
staticassertion
Well perhaps I'm the one that's confused then.

> Why shouldn’t a company be able to copyright the implementation?

This is what a software license is - software licenses are, to my knowledge,
just a form of copyright.

The question here is if the _API_ is copyrightable, not just the
implementation. In my opinion it is, the API is, as you say, part of the work
they did.

Honestly I feel like I have to be missing something. Articles like this
exclaim that there is a consensus among programmers that I'm wrong, so I feel
like I've got to have misunderstood.

------
cmurf
The only reason why it's gotten this far, instead of being settled, is because
the two parties are at an impasse. And the conflicting views resulting in the
impasse have been established by their respective boards, as argued by the law
teams.

These two companies failed to voluntarily agree to a compromise. No one made
them get to this point. They fundamentally disagree with each other. Either
they both think they're in the right. Or one side is bluffing, and willing to
take a gambit, hoping the Court will go along with it.

