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Jury in Oracle v. Google finds in Google's favour (twitter.com)
1832 points by LukeB_UK on May 26, 2016 | hide | past | web | favorite | 393 comments



Law evolves and the law of copyright in particular is ripe for "disruption" - and I say this not as one who opposes the idea of copyright but, on the contrary, as one who strongly supports it.

It is right that the author of a creative work get protection for having conceived that work and reduced it to tangible form. Developers do this all the time with their code. So too do many, many others. Many today disagree with this because they grew up in a digital age where copyright was seen as simply an unnecessary impediment to the otherwise limitless and basically cost-free capacity we all have to reproduce digital products in our modern world and hence an impediment to the social good that would come from widespread sharing of such products for free. Yet, as much as people believe that information ought to be free, it is a fact that simply letting any casual passer-by copy and distribute any creative work with impunity would certainly work to rob those who may have spent countless hours developing such works of the commercial value of their efforts. I will grant that this is a social policy judgment on which the law could come down on either side. I stand with the idea of copyright protection.

Even granting the correctness of copyright as a body of law that protects certain property interests, there are still many abuses in the way it is implemented and enforced. Copyright terms have been extended to the point of absurdity, and certainly well beyond what is needed to give the original author an opportunity to gain the fruits of his or her labor. Enforcement statutes are heavy-handed and potentially abusive, especially as they apply to relatively minor acts of infringement by end-users. And the list goes on.

The point is that many people are fed up with copyright law as currently implemented and, when there is widespread discontent in society over the effects of a law, the time is ripe for a change.

I believe this is where copyright law is today.

The Bono law may have slipped through Congress with nary a dissent in its day but this will not happen again, whatever the lobbying power of Disney and others. And the same is true for the scope of copyright law as it applies to APIs.

Ours is a world of digital interoperability. People see and like its benefits. Society benefits hugely from it. Those who are creatively working to change the world - developers - loath having artificial barriers that block those benefits and that may subject them to potential legal liabilities to boot. Therefore, the idea that an API is copyrightable is loathsome to them. And it is becoming increasingly so to the society as a whole.

The copyright law around APIs had developed in fits and starts throughout the 1980s and 1990s, primarily in the Ninth Circuit where Silicon Valley is located. When Oracle sued Google in this case, that law was basically a mess. Yet Judge Alsup, the judge assigned to this case, did a brilliant synthesis in coming up with a coherent and logically defensible legal justification for why APIs in the abstract should not be protected by copyright. He did this by going back to the purpose of copyright, by examining in detail what it is that APIs do, and by applying the law in light of its original purpose. The result was simple and compelling (though the judicial skill it took to get there was pretty amazing).

Legal decisions are binding or not depending on the authority of the court making them and on whether a particular dispute in under the authority of one court or another when it is heard.

The decision by Judge Alsup is that of a trial judge and hence not legally binding as precedent on any other judge. It could be hugely persuasive or influential but no court is bound to follow it in a subsequent case.

The Federal Circuit decision that reversed Judge Alsup and held APIs to be copyrightable is not that of a trial judge and has much more precedential effect. Yet it too has limited authority. The Federal Circuit Court does not even have copyright as its area of jurisdiction. It is a specialty court set up to hear patent appeals. The only reason it heard this case was because the original set of claims brought by Oracle included patent claims and this became a technical ground by which the Federal Circuit Court gained jurisdiction to hear the appeal. But there are many other Federal Circuit courts in the U.S. and the effect of the Federal Circuit Court decision concerning copyrights is not binding on them. There is also the U.S. Supreme Court. It has the final authority and its decisions are binding on all lower federal courts as concerns copyright law.

The point is that the battle over this issue is not over. It is true that the Federal Circuit decision was a large setback for those who believe APIs should not be subject to copyright. Yet there remains that whole issue of social resistance and that is huge. It will undoubtedly take some time but the law can and does change in ways that tend to reflect what people actually think and want, at least in important areas. No one has a stake in seeing that Oracle be awarded $9 billion in damages just because it bought Sun Microsystems and found an opportunity through its lawyers to make a big money grab against Google. But a lot of people have a stake in keeping software interoperability open and free and many, many people in society benefit from this. Nor is this simply an issue of unsophisticated people fighting the shark lawyers and the big corporations. Many prominent organizations such as EFF are in the mix and are strongly advocating for the needed changes. Thus, this fight over APIs will continue and I believe the law will eventually change for the better.

In this immediate case, I believe the jury likely applied common sense in concluding unanimously that, notwithstanding Oracle's technical arguments, the use here was in fact benign given the ultimate purposes of copyright law. I leave the technical analysis to others but, to me, this seems to be a microcosm of the pattern I describe above: when something repels, and you have a legitimate chance to reject it, you do. Here, the idea of fair use gave the jury a big, fat opening and the jury took it.


> The Bono law may have slipped through Congress with nary a dissent in its day but this will not happen again, whatever the lobbying power of Disney and others.

Copyright maximalists realizing this have moved to circumvent democracy globally by enshrining their most draconian laws into "free trade" treaties. These treaties have the proven ability to overturn the will of national democratic bodies and are almost impossible to remove once imposed.


That used to be the case, but they're not that easy to impose these days. Abuses have been so blatant, and treaties written in such poor manner, that public opinion and media are now "critical by default" of any new treaty. This is particularly true in Europe.


And "free trade" treaties also have the convenient feature that they can be used for far more than just copyright. It's criminal.


> Copyright maximalists realizing this have moved to circumvent democracy globally by enshrining their most draconian laws into "free trade" treaties.

It's globalists and internationalists that circumvented democracy. The copyright maximalists are just trying to take advantage of the opening.


Oh, do treaties no longer need to be ratified?


How many multilateral treaties have been stopped at the ratification stage?


> It's globalists and internationalists that circumvented democracy.

You're usually full of rock solid arguments and facts about how the sky isn't really falling. That was a real bummer to read. :(


People complain about the special interests, but some fail to realize that the major backers of Extreme Copyright (TM) are a special interest that we created.

We, the US public, out of the goodness of our hearts and wanting to foster art, gave up our right to "repeat what we heard" (copying, when what you hear is digital) in return for incentives to create art.

And then bam; decades later the incentives are the de facto baseline, and have been extended with almost no public awareness (let alone debate) using the special interest money that our goodwill created for them.

It is the ultimate checkmate of democracy, and if it weren't so unjust, you would have to hand it to the media industries for playing so masterfully.

Well, good job. You got us. You took the rules we made, and took the public (US, but even more abroad, by exporting your draconian laws via more special interest money) and absolutely destroyed us. You won. Game over.

But wait... not quite. The game is politics. And if you had been content to simply swim in your unimaginable Scrooge McDuck pool of gold dubloons, you would swim until the end of time. But the public is finally starting to notice, and the technorati whose careers and employers (like Google) depend on having a level playing field (even though they try to tilt it in their favor when they can) are starting to notice. I'm not so optimistic that change will come, but if it does, my vote will be for whatever is closest to "burn the fucker to the ground". And some other people feel the same way.

What's the possible consequence of such an extreme change? I guess the risk of fewer Taylor Swifts. Fewer Kany Wests. Fewer Oracles. Fewer Microsofts. Fewer Steve Jobs. Those are such small consequences that, to be honest, they might be additional benefits.

It would be best if the copyright system were reduced to a smouldering ruin, so that the public could better understand exactly what we gave up when the copyright regime was created, and make a more informed decision about which incentives really are needed to make innovation happen. Until we do, the special interests created by those very laws will continue to make us pay for the favor we gave them.


> Fewer Oracles. Fewer Microsofts. Fewer Steve Jobs.

Was it so bad back when you could just buy software for money? Before business models built on eyeballs and data mining instead of copyright?


Like when windows extended Java then started adding incompatibile methods to the windows Java extension that would be on all windows computers? Or maybe when office used a hidden format to store files so no one could share files without buying a license? They were not great times at all...


It's interesting to compare those two examples in the context of the present copyright controversy. In the Visual J++ case, obviously Sun having copyright control over all Java reimplementations would have given them more leverage than just the trademark (though they were able to kill J++ with what they had).

But in the case of proprietary file formats, or really any non-crypto-based attempt to hinder interoperability, the less control, the better. For example, Microsoft could have hypothetically designed their DOC format for the explicit purpose of creating legal issues, such as by having files consist of a series of API calls to reconstruct the document (like WMF!), so that anyone parsing the document would have to reimplement the APIs. To be fair, the need to do so for actual compatibility would weigh heavily in favor of fair use, whereas the story with Android is somewhat weaker (especially because nobody seems to have told the Federal Circuit that Android actually is compatible with existing Java libraries, rather than the API copying being solely for the sake of programmer familiarity...) Also, there is no real need to use copyright for this purpose in the first place: patents have been shown to be quite effective in locking down file formats (c.f. H.264, x86 instructions) - and don't have fair use - so arguably copyright gives offenders nothing they couldn't achieve by other means. But then, patents are limited-duration and who knows, maybe the law with respect to them will be improved some day. No need to hand out extra tools.


> Like when windows extended Java then started adding incompatibile methods

Visual J++ was a very usable Java. Had Sun failed to sue it out of existence, the world would have had a Java with a good UI stack developers actually used, an IDE that was not unusably slow and buggy, AND almost all packages built for Sun's Java would drop right in without problems. Visual J++ would have created the same effect on the use of Java that Android did, but it would have happened approximately 10 years earlier.

Sun's suit was tremendously destructive of a very useful product that would have helped the cause of Java's wide use. Unnecessary, spiteful, and an own-goal.

EDIT: And less VB, and more Windows applications software running in a managed language runtime, years earlier.


> an IDE that was not unusably slow and buggy

Can't argue about the UI stack in general, but IntelliJ is a dream compared to anything Microsoft have ever produced.


I'm talking about Forte, circa 2000. That's when Sun sued Microsoft over Visual J++.

Forte later became NetBeans and today it is fine but it was rubbish back then especially compared to Microsoft's tool chain.


Oh because what microsoft did with the web standards with IE5 and IE6 did so much for the web world - it only took what, 10 years to undo the damage? Think if they corrupted early Java in the same way? C# would not exist, but Java would likely be a steaming pile of crap.


Interactive Java was a steaming pile of crap. Have you ever used an awt UI? Has anyone ever successfully coded a Swing UI? Java IDEs, other than Visual J++, needed insanely powerful machines just to come up in less than 10 minutes.

This is what it took to make interactive Java successful in Android: Subtract cross-platformness, add a runtime designed for a specific OS architecture, add a nice UI stack, and add modularity to apps that makes component lifecycle useful to running apps efficiently. Among other mods. Android "corrupted" the fuck out of Java which was absolutely nowhere as a language for interactive software.

Oracle should have gotten on the bandwagon.


Btw, Java has a great UI stack, it is part of Android.


I'm sorry if I missed the humor. But yeah, interactive Java is Android Java. It might have been WFC. It surely was never going to be AWT or Swing.


Was the hold Office format hidden? It was delightfully obtuse and even obfuscated IMO, no doubt about that, but not impenetrable, and you can find the docs describing the file format on Microsoft's site now. Could you not get them 10-15 years ago?


Nope. The formats were completely undocumented. Nothing outside of Microsoft could properly import the formats. Sure things tried, but they inevitably always failed in rather dramatic ways.

Joel on Software had article about the file formats several years ago. Apparently big chunks of the files are basically just memdumps. http://www.joelonsoftware.com/items/2008/02/19.html


I know a guy who worked at Microsoft and left to create a .doc reader for some other software. He said the .doc format wasn't even documented inside Microsoft and pretty much no-one could tell you how to parse it, apart from trial-and-error.


The prevailing idea seemed to be that if you wanted conversion of Word documents, let's say to screenshots, to match properly in all cases, the only way was a dedicated (or virtual) machine running Windows+Word and some VBS to automate the conversion.

I don't know if this is still the best way. LibreOffice has came a long way for sure, but still doesn't reproduce Word's layout perfectly (which is still the expectation).


Some differences in rendering or printing would be acceptable - what is not acceptable, however, is unintended corruption of existing documents.

E.g. if I open a word document in libreoffice (to do e.g. review and commenting), save it without any changes to the layout, then I'd expect the original author to have the same document layout as before... and that is not so. The same applies to LibreOffice Calc - opening and saving the document produces changes.

Can't you just have a unit test that verifies that reading and immediately writing a document should keep it completely unchanged, except possibly for metadata?


Im guessing the unit test would fail. So what good would it do to add a failing unit test?

I do not envy those who have spent years of their life trying to reverse engineer .doc and .xls formats... those are pretty nasty.


why were those not great times? Every open source project can be forked. Want to make MyC++Haxor3000 just fork LLVM and start adding the features you want. Same with python, JavaScript, and many other languages.

My understanding with Java is MS had signed a contract with Sun so there were other obligations. From a purely engineering POV though it makes total sense to extend. When I embed a language in my app (lua, JavaScript, whatever) the first thing I do is expose all my functionality.


Buying software for money: no problem. But the special interests that it created (MS is a convicted monopolist) were exploited beyond the pale.

Ok. Shame on me. You win. Checkmate.

But you won't fool me twice. No more support for "innovation" and "intellectual property" of any kind.

You can still ask me to pay for it, but you won't have the copyright industry stick to swing at me if I decide I'd rather get it from an unsupported source because your version only comes with digital restrictions.


Your argument works against your position, since that happened right as copyright laws were strengthened (even making DRM illegal to circumvent), not weakened.


> I guess the risk of fewer Taylor Swifts. Fewer Kany Wests. Fewer Oracles. Fewer Microsofts. Fewer Steve Jobs. Those are such small consequences that, to be honest, they might be additional benefits.

Most of the public would consider those pretty enormous consequences.

Heck, I'd be upset if I had to switch away from a MacBook Pro to a commodity-PC-hardware + Linux solution for personal use today, even without any of the other things that group of people and companies you mention have produced. And I'm a-ok with paying for those things, or paying other people for doing interesting things on top of those things.

Maybe you think the risk of that actually happening is pretty small, but as-written, the consequences are actually pretty huge.


You would still buy a Macbook if patents and copyright did not exist, wouldn't you? In fact there are much more powerful designs in the PC world. But you stick to the Apple brand because you've been burnt with everything else, from cheap knock-offs to famous makers who distribute an OEM versions of Windows with viruses and rogue root CA certificates. What saves Apple is being the only make you can rely on. They're not particularly innovative in the products they make. What is the role of patents in that?


Without copyright, anyone could make a knockoff Apple and it would dilute their brand so much as to make it unworkable for Apple to make a quality product and get paid for it. Apple absolutely requires copyright protection of their software to keep their brand exclusive to drive profit to keep making nice products. The PC world that you noted is the epitome of the race to the bottom they would have to participate in otherwise.


I disagree. The race to the bottom you observe with PCs is largely caused by the same lock-in forces enabled by strong copyright.

In your hypothetical example world, Linux would be on equal playing field when it comes to video/hardware drivers. So it could compete as a serious gaming platform. Without vendor lock-in, hardware would have to be more interchangeable, so can select their own choice of hardware, which can be cheap or expensive or powerful or quality or pretty etc and fit it inside an aluminium casing if they like. They could get a matte screen and a nice keyboard ...

Without Apple's market power behind it, nobody would consider using iTunes over a normal mp3 player.

There is demand for pretty computers, powerful ones, durable & sturdy ones, et cetera. That won't change without Apple. Sure it won't offer the exact same things Apple does today, but on the other hand it will provide a whole bunch of things that Apple today doesn't or won't. On the whole it will be neutral or positive.


"We, the US public, out of the goodness of our hearts and wanting to foster art"

I was not part of that, and neither was I part of some minority complaining while the majority did this. I don't think this ever happened. Just because there's a pretense of democracy doesn't mean the general public is actually to blame for everything.


I also had to scratch my head at that, despite an otherwise nicely written comment.

It's not like copyright law is something Presidential candidates run on. I think the author is overstating his case with regards to public perceptions. The first problem with public perceptions is, when laws are forged in the court room (or codified in treaties), they're essentially happening removed from public scrutiny. Not everyone is reading EFF manifestos.

It's even worse because they're technical questions, requiring a certain expertise in IT as a specialized field, meaning a small percentage of people in the U.S. understand much less care about these laws.

Where I may agree about a shift in perceptions is for a different reason. As more people have entered the field, which now has television shows about it and some of the world's largest companies to boot, there are more people with an interest/curiosity or knowledge in IT. Better able to understand the ramifications of rulings about APIs.

But as someone said, we don't really leave in that much of a democracy as we think. Corporations have a louder voice. If they stand to benefit for a position they'll make more noise (in legal efforts or lobbying) in favor of it. And it's no surprise that we're seeing two behemoths battle it out.


Fair enough. My point is only that this is a consensual system at its root.

And when the public votes with there money (the Montgomery bus boycott) and back it up at the ballot box, you could actually effect change.


There's actually a super strong case that the system is not really rooted in consensus, that we have a supply-side system in which people do not have effective "vote" with their money (see this article this thread is on), that boycotts basically don't work (even the story of the Montgomery bus boycott generally overplays the effect of the boycott aspect, see http://freakonomics.com/podcast/do-boycotts-work-a-new-freak... ), and, in the end, I'm not asserting a conclusion here, but there's more evidence against "you could actually effect change" than for it (disregarding the affect/effect spelling issue).


It's US specific and even then it's not true. Whenever I hear people going on about the constitution and how it's such an amazing document a little voice goes "pssst! Slavery!"


> I guess the risk of fewer Taylor Swifts.

Are you straight or ironic? Let's not forget that, in the current system, labels get served first while those artists remain in debt. It works with the system of advances and invoicing, mostly for tours and TV, but in the present situation I've found the example with album sales: https://www.techdirt.com/articles/20100712/23482610186.shtml


I disagree that copyright is a natural right. It is a right that societies bestow to creators to incentive them to create. It has not valid purpose beyond that and is quite unnatural to me.Part of the problem with today's law is that it is being pushed as a natural right and a form of justice. This is a fairly recent development, historically speaking.


Well meaning laws that are in practice nearly impossible to meaningfully enforce should not exist - from the beginning as well as when then this reality kicks in. Copyright shares many traits with the war on drugs.

They were implemented and then continue to stick around way too long in an archaic non-working state - because they were well meaning. But making sure it will actually have the intended effect is not a requirement. The enforcement side is always left to figure it out after the fact. The reality of the law is something that can be delayed, what matters is moral gratification of the policy makers.

This is sadly prevalent in American policy: laws always start with good intentions but often ultimately a) causing net-negative via side-effects or b) not enforcable so a giant money/time sinkhole. Serious scrutiny beforehand could probably detect the majority of this stuff but that's not a requirement in office apparently.


> Well meaning laws that are in practice nearly impossible to meaningfully enforce should not exist - from the beginning as well as when then this reality kicks in. Copyright shares many traits with the war on drugs.

Not really, and this is where I think copyright owners have gone off the reservation with their enforcement strategy. The point of copyright isn't to keep kids from pirating a few songs, just like the point of property right's isn't to keep kids from walking across your lawn. That's not what's going to destroy the value of your property. The point of copyright is to force Netflix and Amazon Prime and Youtube to bargain with you instead of just ripping you off. And that's not hard to enforce.


> The point of copyright isn't to keep kids from pirating a few songs, just like the point of property right's isn't to keep kids from walking across your lawn. That's not what's going to destroy the value of your property. The point of copyright is to force Netflix and Amazon Prime and Youtube to bargain with you instead of just ripping you off. And that's not hard to enforce.

You know, I've never heard this position articulated before, but it seems incredibly, and obviously reasonable. To me, the balanced position of "enforce copyright vigorously when significant value is at stake, but don't harm consumers by obsessively trying to prevent minor infringements" seems the most fair position.


> it is a fact that simply letting any casual passer-by copy and distribute any creative work with impunity would

That's not how facts work. You can't say "it is a fact that [hypothetical scenario] leads to [expected outcome]" except in the case of very well understood mechanisms narrowly applied. I don't think the sociopolitical effects of copyright law are one of those situations.


"hypothetical" assumes this has never happened. Copyright and patent laws came into existence because this exact scenario happened all the time.

Edit: to counter DannyBee's assertion, I'm referring specifically to this statement -- "it is a fact that simply letting any casual passer-by copy and distribute any creative work with impunity would certainly work to rob those who may have spent countless hours developing such works of the commercial value of their efforts." The history of copyright starts with printing restrictions to control the flow of "dangerous" information, but the first modern copyright statute (the statute of anne) deliberately came into existence to protect ideas by granting protections to authors of content for n years. Until this point. Copyright was a grant of a printing monopoly.

https://en.m.wikipedia.org/wiki/History_of_copyright_law

> The Statute of Anne had a much broader social focus and remit than the monopoly granted to the Stationers' Company. The statute was concerned with the reading public, the continued production of useful literature, and the advancement and spread of education. The central plank of the statute is a social quid pro quo; to encourage "learned men to compose and write useful books" the statute guaranteed the finite right to print and reprint those works.

Comments to DannyBee's link address this mischaracterization of modern copyright history. One example: http://questioncopyright.org/comment/8491#comment-8491


This is 100% inaccurate

Copyright law was created as a way to support a nascent publishing industry by granting it a monopoly. It was not created to help artists or whoever. http://questioncopyright.org/promise

(The history here is accurate and can be verified with other independent sources)


That's not a sufficient answer.

The claim assumes that copyright and patents are proven to be beneficial, measurably better than the prior situation. Are they? If so, how?

Not to mention, is there any proof there's no better solution?


I think you're moving the goalposts quite a bit here! The original assertion does not assume that the current implementation and interpretation of copyright law is, as you say, "proven to be beneficial, measurably better than the prior situation."

The complaint was that "that's not how facts work" but the statement in question was in fact verifiable.

If you want to provide proof of a better solution, go for it. Proof that there does not exist a better solution is logically impossible, so clearly not a reasonable request.

Were creative works shared, copied, and appropriated with impunity when it was perfectly legal to do so? Why, yes they were! Did the creatives lose out on monetary gains in those cases? Certainly. And copyright law evolved to solve that problem. You are perfectly free to believe it wasn't a problem in the first place, or that the medicine is worse than the disease, but I think you have to make the case for why creatives should not be paid for their work, or how else outside of market economies we should pay creatives for their work, if you believe that would be a better system.


> Did the creatives lose out on monetary gains in those cases? Certainly. And copyright law evolved to solve that problem.

Problem? Are you sure this is really a problem? We assume by default that it is, but think of this for a second: on the one hand, monetary benefits for a few. On the other, a restriction on the liberty to copy and publish for everyone.

This wasn't always the case: historically, only a few people had the ability to share or publish anything. Copyright wasn't so unbalanced then. Now however we have the internet.

Given this asymmetry, the well being of creative people itself is secondary to the well being of everyone else. The real reason why creative people should be paid is because we want everyone else to be able to enjoy their creations.

It's easy to get caught up in individualistic considerations, such as "I did, it so I deserve a reward", or the opposition between "the" artist and "the" consumer. This can reduce to ridiculous arithmetic errors, such as, the picture of "the" starving artist that lost significant income because "the" consumer didn't pay $5 for a song.

We need to grow a sense of scale.


One could argue whether an API is a creative work however. Are you copyrighting the syntax or the semantics? If it is the semantics, then you are essentially copyrighting a mathematical entity (a type declaration). Are we allowed to copyright mathematics at this point?

Forever unto me, the tuple (Int, Int) shall be mine.


One could argue whether an API is a creative work however.

True, though I suggest a better alternative is that some types of work -- in particular, those necessary for effective communication or for interoperability -- should be explicitly exempt from copyright protection, regardless of any creative element.

Copyright itself is an economic trade-off, sacrificing some freedom in the interests of promoting what is considered a greater good.

In the same spirit, I would argue that the ability of different parties to communicate and work together effectively is a greater good than anything copyright incentivizes and should therefore take precedence.

Curiously, the US legal system already recognises a similar principle in the way it treats typefaces. I submit that analogous treatment is appropriate for APIs, file formats, communications protocols, and the like.


Oracle claimed that their copyright covered "Sequence, Structure, and Organization."


> I think you have to make the case for why creatives should not be paid for their work

you're moving the goalposts. post you responded to was not questioning the right of creators to be compensated for their work.


> The claim assumes that copyright and patents are proven to be beneficial, measurably better than the prior situation.

It looks to me like he's only claiming that copyright protections mitigate a specific harm, not that they're necessarily a net benefit.


Proving that there's no better solution is impractical.

However, the size of the copyright-backed creative industries today, by any reasonable metric I can think of, is vastly greater than the size of the creative industries built around the alternative models that have been tried noticeably often so far. That seems to include all of volunteer-based, crowd-funded, mass donation-funded, traditional patronage where some wealthy benefactor funds an entire work, and pay-what-you-want models.

Likewise, the quality of work produced with the economic incentive of copyright tends to be better, often much better, than what is produced based on other funding models or a voluntary basis, particularly in areas that aren't things anyone is likely to do just for fun. (Some people may disagree, but I consider this point so obvious by now that it's rarely worth engaging on.)

That seems like decent evidence that no-one has found a reliably better way to incentivize creating and distributing new works so far, and it's readily falsifiable if anyone does in the future.

Patents are a different matter. I suspect the pros and cons vary significant from one field of research to another, with the general trend that patents might be useful in fields where the cost of R&D really is prohibitively high without some reliable way to exploit any successful projects, while patents are probably doing more harm than good in fields where they are more often used for sneaky legal manoeuvres than to incentivize genuinely innovative, widely useful, but expensive work.


> Likewise, the quality of work produced with the economic incentive of copyright tends to be better, often much better, than what is produced based on other funding models or a voluntary basis... (Some people may disagree, but I consider this point so obvious by now that it's rarely worth engaging on.)

Sorry you find this tiresome. The history of popular and culturally relevant music can be seen as basically a history of uncompensated outsider art becoming coopted and repackaged into dull derivatives.

You may find, for example, Elvis clearly superior to the mostly uncompensated African American traditions he pulled from, but that's hardly a position so universal as to be obvious.

I know you caveated with especially things people don't do for fun, but basically all art attracts people doing it for art's sake.

> That seems like decent evidence that no-one has found a reliably better way to incentivize creating and distributing new works so far

The overwhelming majority of artists will never see any return for their works. There is such a long tail of garage bands making music for fun that it's hard to imagine the need for financial incentives to encourage greater saturation of that industry.

Financial incentives don't encourage great art, they only incentivize commercial art. There are overlaps, but we can't pretend those are both the same thing.


Financial incentives don't encourage great art, they only incentivize commercial art. There are overlaps, but we can't pretend those are both the same thing.

I don't entirely agree. Appreciation of art is subjective by nature, but the way we usually quantify value in our society is financial. A work that is popular will be more financially successful. A work that does not have such broad appeal but which is worth a great deal to a smaller group can also be successful. So unless you want to make some argument that art that is neither widely appreciated nor strongly appreciated by a few can still be great, I don't think the concepts you mentioned are as independent as you're suggesting.

I would also point out that copyright incentivizes the creation and distribution of utilitarian creative works, not just artistic ones. In some respects this is the more valuable side of copyright, because as you point out, with artistic work there will probably always be some level of creativity whether or not it's compensated. With more practical works, say business accounting software or a high school science textbook, there's much less incentive to create the works without some form of money or other compensation involved.

But even in the case of artistic work, I think it's fair to say that a successful professionally edited and published novel is likely to be better writing on average than most popular fan fiction. There are some impressive amateur video productions on YouTube these days, but no-one is making a hobby show with the production values of Game of Thrones. A few potentially decent games have achieved quite impressive funding through Kickstarter, but some of them still haven't actually been shipped years later, and typically they're multiple orders of magnitude below what the budget for a modern AAA title.

You can draw similar comparisons in most fields covered by copyright, whether artistic or simply utilitarian. Certainly not all commercially produced works backed by copyright are successful. Copyright doesn't guarantee anyone a financial return on their hard work. However, it does provide a direct incentive to produce better works and distribute them more widely, because the more successful a work is, the greater the return it will generate.

The only two fields I can immediately think of where serious money is made from creative works but probably would still be made if those works weren't subject to copyright are live performances and software created to support something else rather than for sale in its own right. Even then, not everyone protected by copyrights would necessarily benefit; for example, a band or orchestra might bring in a lot of money for a live concert, but probably someone else wrote the music or songs. So again, the financial incentive to write the best music comes from wanting as many performances of that music as possible to be enjoyed, and thus to maximise the royalties.


Appreciation of art is subjective by nature, but the way we usually quantify value in our society is financial. A work that is popular will be more financially successful. A work that does not have such broad appeal but which is worth a great deal to a smaller group can also be successful. So unless you want to make some argument that art that is neither widely appreciated nor strongly appreciated by a few can still be great, I don't think the concepts you mentioned are as independent as you're suggesting.

It's good to see different world views expressed clearly, but yours is incredibly foreign to me. For me, the number of dollars that someone else with much more money than I have is willing to pay for an object has almost nothing to with its greatness as art. I instinctively react against the idea as if you were saying "How can love between two people be considered great unless one party is paying the other a large sum to stay in the relationship?"

When 'brownbat' says commercial art, I presume he means art that is created because there is known demand from those with the money to pay for it. And when you say "unless you want to make some argument that art that is neither widely appreciated nor strongly appreciated by a few can still be great", this seems like it is totally ignoring the appreciation those without the ability to pay.

Why should we allow greatness of art be defined only by those who have accumulated a surplus of money? Sure, greatness is subjective, but when it comes to art, does it possibly make sense to restrict greatness to the subset of art appreciated by the rich? I would agree that art cannot be great if it is not "strongly appreciated" by at least someone, but can't it be subjectively great for that someone even if they can't afford to pay much for it?

The difference in our world view might be that I see "appreciative but unable to pay" as the default state of the majority of the world, and thus wouldn't think of restricting great art to that which is also financially lucrative, nor quantifying it by summing the product of the audience member's degree of appreciation times ability to pay.


When I was talking about strong appreciation by smaller groups, I wasn't thinking of the kind of works that only a privileged rich elite can afford. Certainly there are people who go to art auctions and buy paintings for millions, so I suppose that would be an extreme case of the same principle.

However, when I wrote my previous post I was more thinking about products in niche markets. An academic text by an expert in a narrow field would presumably appeal to fewer people than a Harry Potter novel, but to those who are working in the field, it might be very valuable to see the insights of an authority on the subject. Thus it becomes viable to publish texts that cost far more than a novel for each copy, if there are enough people still willing to buy it at that price. There are parallels in other niche markets, say a relatively obscure music style where fans are still willing to pay for recordings by a band they enjoy, or specialist software that is only useful to a relatively small number of businesses but is so useful to those businesses that it can sell for thousands of dollars per user.

Are those specialist texts greater works than Harry Potter because they sell for more? Are those specialist software products greater works than the latest Grand Theft Auto? I don't think that's necessarily the case. To me, a popular work that brings happiness to many people can be great, even if the highbrow brigade would look down on it and say it wasn't very good. When they've brought as many smiles to as many children as JK Rowling, their opinion on that subject will mean something to me. :-)

I want to close by coming back to the idea that value is often subjective. I am certainly not implying that to any given person a work can only be great if it makes a lot of money, just as in your own example of two people being in love, only two people's opinions on the greatness of the relationship really matter. I am just saying that in the large, as an economic matter, judging a product by how much others consider it worth is one of the few relatively objective measures we have available.


Really appreciate the thoughtful reply.

While I think you make a fair prima facie case that financial value could track merit in art, as it does so in so many other domains, I would caution that 'weirdness' in the market for art could easily distort this. ('Weirdness' being the proper technical term, if I recall correctly.)

There are lots of reasons art markets are weird, imperfect substitutes, monopolies, winner-take-all dynamics. But I think the biggest factor here is that consumption of truly great art requires enormous search costs.

You can't be certain if you'll love a work unless you experience it, and no one has time to experience more than a miniscule fraction of all the art humanity produces any given day.

The impact is that producers and distributors can successfully make works of minimally acceptable quality, but then market the hell out of them to drown out other recommendations during our search for new great works.

That's why, while yes, GoT has been great, we are coming off nearly a decade dominated by reality TV with no rewatchability. Commercial art has demonstrated the capacity for perfectly fine returns with either model.

Meanwhile, I'm more frequently finding that some of my favorite works have been released for free online: Down and Out in the Magic Kingdom, John Dies at the End, The Martian, How We Got Here, or Harry Potter and the Methods of Rationality.

This shouldn't be too surprising, the idea that great works are possible without strong copyrights. Shakespeare wrote at a time where copyright protections did not apply to written plays, and you might find, according to critical acclaim, test of time, or market measures that Shakespeare has produced a few superlative plays.

If we look to the median, based on my admittedly informal hunch from working a few summers at bookstores, we have to start looking at things like middle of the road trashy romance novels, which I suspect will be a pretty comparable to median fan fiction (unchecked grammatical errors and all - for a particularly memorable, but not uncharacteristic example: https://www.theguardian.com/books/booksblog/2011/sep/12/shif... ).

So we could go a few rounds where you note great commercial works and terrible amateur works, and I cite the opposite, but I think we both know that could continue forever with no resolution.

What we really need is some kind of impossible study that has amateurs and professionals performing the same works, and then some independent quality rating. Oh, and we also need to compare works with and without copyright protections.

Fortunately there is a test case for this, thanks to how many different versions will emerge of various audiobooks. Buccafusco & Heald used mechanical turk in an interesting way as well, really interesting study design:

http://emilkirkegaard.dk/en/wp-content/uploads/Do-Bad-Things...

Now, studio time and famous actors can make audiobooks incredibly expensive to produce. Production values could range from "microphone in a closet" to extremely high budget.

Even so, the study found no appreciable difference in quality for professional and amateur works, or for works with or without copyright monopolies preventing competition.

Despite all the sound and fury, I suspect you and I are closer than it might appear. I agree the utilitarian works may need help with compensation (I might quibble that copyright is an imperfect vehicle there, but sure). And copyright probably led to some very good stuff that we wouldn't have otherwise.

I really just feel like there are enough counterexamples and indications like the study above to make the value of strong copyrights an open question, I was reacting far more to your apparent certainty than to the position itself.


> However, the size of the copyright-backed creative industries today, by any reasonable metric I can think of, is vastly greater than the size of the creative industries built around the alternative models that have been tried noticeably often so far.

Even assuming that "market size" is the right metric for comparison, that comparison assumes that the existence of copyright law has had no negative effect on those "alternative" models. Numerous readily available examples suggest that it has, however.


Numerous readily available examples suggest that it has, however.

Would you share some of those examples? I've heard this argument made before, and I agree that undermining alternative models is both logically possible and a plausible concern in practice. However, the only examples anyone has come up with so far have been some form of derivative work with questionable added value.

Lacking any more compelling evidence, I tend to come back to balance that copyright is one economic principle that clearly can support the production of many useful works, and there is little empirical data to suggest either greater harms or better alternatives. But of course that position ceases to hold if and when such data is found.


YouTube Content ID and equivalent takedowns of content on other services (including false claims, videos shut down because of incidental music, or actual use of content in a transformative way). Remixers/mash-ups. Romhacks/mods/etc. "Abridged series" (of the humorous variety, not literal abridging). Fan works of all kinds. The entire emulation scene. Tools for reading and rescuing content from proprietary file formats. Drivers developed through reverse-engineering to figure out how the hardware works. Projects (both Open Source and proprietary) potentially threatened by the previous ruling on APIs in this exact lawsuit. The old SCO lawsuit and all the time and money it wasted, plus the harm done by the FUD. Any project that has ever had to defend itself over "fair use" in court, whether successful or not.

That was about 5 minutes worth of examples; plenty more where those came from.


It seems to me that many of your examples are more symptoms of today's often absurd implementations, rather than the basic idea of copyright itself.

As I argued in another post, I don't think copyright should ever become an artificial tool to limit communication or interoperability, and as such work necessary to that purpose should indeed not be subject to copyright. It already isn't, to varying degrees, in various jurisdictions.

False takedown claims and the problems that result are more a symptom of allowing centralised hosting of content than anything else. YouTube and the like have no obligation to continue hosting anyone's content if it causes them trouble, regardless of the legitimacy or otherwise of any complaints. As long as there are also no real penalties in law for malicious or negligent actions by big rightsholders, you're going to get this sort of problem anyway.

There are already supposed to be provisions, under banners like fair use or fair dealing, for various applications of works that don't prejudice the original intent of the copyright. Here again it's clear that regulatory capture is hard at work undermining the system, but likewise here again that's due to weak political leadership rather than an inherent problem with copyright.

The areas you mentioned where I'm not so sure are things like remixes, fan works, and mods. In many cases these derivative works do depend on the original creative assets for most of their value, and as such perhaps they should not be exempt from the normal copyright provisions.

In short, I don't see any of those as particularly compelling examples against the basic idea of copyright as a temporary monopoly on reproduction of creative works, subject to reasonable limitations of scope. Rather, I think they are compelling examples of how badly copyright laws have been captured and distorted over time by powerful special interests, particularly in the US, and to some extent of the dangers of giving up control of our own content to third party hosting or distribution services with their own priorities that don't necessarily match our own.


It seems to me that you've moved the goalposts. I certainly agree that a less broken system of copyright would work better than the one we have. But the question at hand was whether there existed cases in which copyright has harmed works that might thrive more in the absence of copyright, as a part of evaluating whether it makes sense to consider the state of "alternative models" given the current legal system directly supporting the primary copyright model and in many cases harming those alternatives. You've then reasserted that you want the "basic idea" of copyright as a means of dismissing these examples, but that wasn't the question at hand.

In a model without copyright, it wouldn't matter whether a work was derivative, or whether it depended on the "original creative assets"; what would matter is whether people found it useful, interesting, and worth supporting/promoting.

(As for the comment on decentralization of services, I'd agree, but at the same time that particular set of problems also wouldn't exist in the absence of copyright.)


I suppose I did move the goalposts, however unintentional it may have been. Yes, what I'm really defending here is the basic premise of copyright. I have no interest in defending copyright that effectively lasts forever, or that has such wide scope that we see billion-dollar lawsuits over work that shouldn't have been covered by copyright in the first place, or other similarly obvious abuses from the relatively recent past.

However, if the underlying question we're asking here is still whether copyright adversely affects other potential economic models for creating and distributing new works, I think my original point remains valid. How would the scenarios you mentioned support alternative model(s) that would be more attractive to creators than what we have (or at least, should have) under some sort of copyright scheme?


> Patents are a different matter. ... patents might be useful in fields where the cost of R&D really is prohibitively high without some reliable way to exploit any successful projects

You seem to be suggesting that cost should be a deciding factor in whether to protect creative work. I disagree that there is a difference here between copyrights and patents.

1) In the tech industry, calculating the "cost" would be anything but straightforward. What would be allowed and what wouldn't? The players are not even comparable - what would stop a large corporation to include their HR, legal departments, and executive team as part of their "R&D costs"? Whereas, a small software startup with 1-3 members getting paid ramen noodles would be hard pressed to properly chalk up a tiny fraction of the costs the large corporation. The large corporation would have no problem showing that "project X cost $1million+ in R&D costs" while the startup would be in $thousands or $tens of thousands. If anything, one might argue that the OPPOSITE of cost would be better indicator - I see more innovation deserving protection from small startups creating things in a weekend than large corporations pushing some new technology developed over years using teams of people and resources.

2) There exist numerous examples where traditional artists create works in relatively short time. How many times have we read about an artist who wrote a song in an afternoon or even an hour? In those cases, the "R&D" costs of creating the song or painting would surely be considered small (if not tiny) when compared to tech R&D. It's contradictory to suggest that creative works protectable by copyrights at times with lower "costs" should be more protectable than tech protectable only by patents.


You seem to be suggesting that cost should be a deciding factor in whether to protect creative work.

I suppose I am, but only indirectly.

I view both copyright and patents as economic instruments. To me, the argument for temporarily restricting freedom to replicate others' work is based on the "greater good" that comes from incentivizing the creation of that work in the first place. However, that argument only makes sense where such an incentive is actually necessary, and to the extent that it is necessary.

If something really can be created by someone within a weekend, it is unlikely that the work or insights necessary to create it are particularly unique or valuable. There is little need to incentivize creating or sharing such work with years of exclusive control, because probably many others could (and some will) do the same thing anyway within that time, and granting the exclusivity is just an artificial barrier to any greater progress that any of those creators might then make.

On the other hand, maybe identifying a new antibiotic that will save thousands of people from "superbugs" takes several years of expensive laboratory research and then several more years of expensive trials and regulatory approvals, but once identified the marginal cost of manufacture is relatively low and many organisations have the resources to produce the physical product. It seems quite plausible that the research and trials and approvals won't happen in this case unless there is some extra benefit to whoever actually puts in the time and resources to do that work first. Given the likely benefit to society of having access to new antibiotics, I personally don't have a problem with incentivization in this case. (For the same ethical reasons, I also don't have a problem with revoking any exclusivity if whoever holds the rights isn't taking reasonable steps to use them by producing and selling the drug at a fair price; the goal is to promote discovery and availability of a useful drug to those who have a medical need for it, and anyone who isn't actually contributing to that doesn't need special privileges.)

Perhaps it would be more accurate to say that I think the cost/benefit should be a deciding factor in which classes of creative work receive these kinds of protections. It's not so much about the absolute cost, but rather whether it's worthwhile for creators to create already, and if not, whether the value to society of having the creation available justifies offering some extra incentive.


The problem is that proving that copyright as it stands is the cause of the prosperity of the current market is problematic. You don't and can't have an equivalent control.


Indeed, and that will hold in both directions. We can't perform an ideal experiment here.

However, we do know funding work with copyright-backed models has been widely successful for a sustained period. We also know that alternative funding models aren't precluded by copyright and that several have been tried with varying but almost always much lower degrees of success.

As 'JoshTriplett mentioned in another post, one confounding possibility is that something about how copyright works today does in fact inhibit what would otherwise be a more successful alternative model. However, so far I've yet to see any compelling examples of that, either in this discussion or elsewhere, and even then you'd need that confounding factor to cancel out multiple orders of magnitude of benefit from some other model for the most successful alternatives I've seen so far to catch up with the most successful copyright-supported work.

That is certainly possible, but until there's evidence to the contrary, it seems highly unlikely.


Market sizes isn't the same as societal benefit. Just like how a modern society built around horses and carts with all the overhead and work that would require wouldn't be an improvement.

It seems to me that it is very very rare that it is the copyright enforcement and/or necessity (will) to stay within legal limits that itself is the reason any given copyrighted offer stays profitable. People pays because they want to pay for quality, in general.


Market sizes isn't the same as societal benefit.

I'm arguing that copyright-supported creative effort overall produces and distributes significantly more and significantly better works than creative effort supported in other ways.

If that doesn't imply societal benefit to you, what does?


What's the argument based on? Compared to for example software projects under permissive licenses, Creative Commons, etc, can you show that copyright does more than to simply help somebody popularize (through marketing) things that likely already would have existed?


How many AAA games have been created with permissive licences?

What permissively licensed software is available to design ships or office buildings or integrated circuits?

When Adobe created a gap in the market by making Creative Cloud subscription-only, it took just a few years for several quite slick and professionally well-regarded alternative products to appear, with feature sets catering to former users of Creative Suite products in specific areas. Those new products are all commercial and funded by copyright-protected sales. How long have FOSS products like the GIMP or Inkscape been trying to do the same thing, without ever succeeding?


What kernels can compete with Linux in servers and embedded? How many how many network protocols are entirely proprietary? And what about Android, Blender?


> Proving that there's no better solution is impractical.

Logically impossible actually.


I avoided phrasing it that way in case we got bogged down with how we're defining terms and what assumptions are reasonable to make. Of course you can't prove the general negative case, but even if you started trying to work with a more concrete economic model, anything realistic enough to be useful would most likely also be too complicated to analyze completely.


[Citation needed]


> The Bono law may have slipped through Congress with nary a dissent in its day but this will not happen again, whatever the lobbying power of Disney and others.

What makes you think so? This is one of my greatest fears of another Clinton presidency.


You fear that a Clinton presidency will make Congress pass bad laws?


The Clintons are famously close to Hollywood and have been quite bad for anti-copyright causes. One word: DMCA.


The law would come out of Congress. I have no compelling reason to believe at this time that any candidate for this Presidential election wouldn't just sign it and move on with life. (I can read tea leaves and hypothesize as well as anyone else, but I have no real facts that leads me to believe otherwise.) If that is the case, there's very little advantage to the industry getting close to the President; all they can do is sign it, not sign it extra hard or something. Regardless I also find it unlikely that any candidate would burn political capital to push through extra hard, not that it would be necessary anyhow.

The most likely way this is going to go down is Congress is going to pass the extension again and it's going to go to the Supreme Court. I would consider the probability of any other outcome pretty low.


> all they can do is sign it

The US legislative process lives and dies on building alliances and horse-trading. A word from the President and/or his/her promise of future help in other matters is hugely valuable. A law going through Congress and a law going through Congress with support from the President are two very different things in practice, and would be disingenuous to say that's not the case.


> The US legislative process lives and dies on building alliances and horse-trading.

It used to, back in the day. That hasn't been the case for a while in today's extremely partisan environment where compromise is now a dirty word and presidential support for something makes it less likely to pass given the hostile congress that will remain even after Clinton wins.


> today's extremely partisan environment

That's all a big show on wedge issues. On topics that matter to people with money (bankruptcy laws, banking laws etc), it's just business as usual. The DMCA was passed in a similarly "partisan" environment. Don't believe the hype.


It isn't business as usual, this is the most unproductive congress in modern history, it's not hype, it's reality. Anecdotes about oh some things got through don't change the reality that many things that should and used to no longer can without absurd posturing battles and attempted and real shutdowns of the government.


Yes. Copyright is essentially a settled political issue; both sides, as a matter of platform, seem to believe it should last as long as possible and reserve as many benefits as possible to its creators. Of course, this is not what the public believes, but since copyright legislation is usually labeled something emotionally manipulative and dishonest like "The Mickey Mouse Protection Act" and since the media has an interest in presenting that legislation in the most favorable light possible, no one ends up opposing the specific bills.

As such, all current candidates, with the possible exception of Sanders, would probably consider signing a copyright bill routine (Lessig isn't a candidate anymore).


This is not entirely true. Take, for example, No Child Left Behind. Bush made it an executive priority and partnered with senior members of Congress laying out what the law should look like. Same with Medicare Part D.


DMCA passed under a majority Republican House and Senate in 1998. Don't blame the Clintons alone.

https://en.wikipedia.org/wiki/105th_United_States_Congress


> Many today disagree with this because they grew up in a digital age where copyright was seen as simply an unnecessary impediment to the otherwise limitless and basically cost-free capacity we all have to reproduce digital products in our modern world and hence an impediment to the social good that would come from widespread sharing of such products for free.

As a creator, I agree with the idea of copyright, but as a consumer, I think you missed the core problem with this statement.

I think most people can agree that enforcing copyright is fine: that is, creators should be compensated for their work, if they so choose to be. They should especially be compensated if anyone else is making money from their work.

Let's pick on the music industry in particular, because they are particularly big abusers and also the ones that messed the whole thing up.

One of the places the music industry went wrong was in micro-enforcing exact means of consumption. If they had it their way, I'd have to buy 3 copies of every song if I wanted to be able to listen in my living room, car, and portable device. Oh, and another 3 copies each every time a new format came out (Vinyl -> Cassette -> CD -> every various DRM form of digital). Further, they tried to restrict which devices you were allowed to use ("this DRM only works on stuff from manufacturer X or Y, not Z and definitely not your home-built custom rig").

This is where they really overstepped, in my opinion. And they did this at the same time that the technology for digital music (MP3) was becoming practical, affordable and mainstream. (As in: fast internet, fast CPUs, affordable storage, and many portable music player products)

So what was the result? What would have been an underground and niche world of piracy suddenly was offering for free something that was significantly better than what you got if you paid. Many people even downloaded stuff that they owned on CD, because it was simpler than ripping it. It's not a stretch to simply skip the step of paying for the CD initially. Instead of building something even better and easier than Napster (and others), they declared war on their customers.

It's really not unlike the current climate of ads vs ad blockers: it's hard to feel bad for the advertisers after their methods serve malware, obnoxious and intrusive ads, auto-playing video, popups, etc. Most people could tolerate banner ads, just as most people would have been fine paying for their music, but they took it a step too far and ruined it for the whole industry.

If the music industry had been okay with format shifting and unrestricted (non-DRM'd) playback, instead just concentrating on ensuring that their paying customers could listen to the music they bought however they wanted, the industry would probably look quite different today. Sure, there would have been some piracy (both causal sharing among friends and for-profit counterfeits), but there always has been.

Instead, they attempted to completely erase piracy and extract every cent they could from their paying customers by controlling everything, and didn't care about the collateral damage they were doing specifically to the people trying to give them money. In fact, they want to go even further and put people in jail over it.

So to me, at least, it's not about free-as-in-beer, I'm happy to pay for content. But once I pay, I want to be able to listen to it in the ways I want. Forcing me to use a specific manufacturer's product to be able to listen to the content is as offensive to me as only allowing me to listen to certain types of music based on the color of my skin.


That's alright for mere consumption, but what about derivatives? I mean, take a look at fan-fiction - it's practically a violation of copyright by definition, and yet it provides a template for budding authors so they don't have to invent their own characters and world from scratch to start writing interesting interactions - there are an awful lot of major authors that wouldn't have started writing if it weren't for fanfiction, by their own admission. For example, 50 Shades Of Grey was originally a Twilight fanfic, but it's pretty darn popular as its own unrelated thing now.


Derivatives are particularly difficult, that's for sure.

In the software world we have licenses that explicitly lay this out.

The music industry does actually have this sorted out, with ways to license music for covers (mechanical licenses) or remixing -- although the latter is definitely complicated [1] and is similar to fan fiction in that many artists/DJs get started by making remixes.

There's an entire wikipedia page on legal issues relating to fan fiction [2].

It's definitely not an obvious thing. Using your example, how do you decide if 50 Shades of Grey is a legitimate new work or a rip-off of the next part of the story Twilight was going to tell? If a similar story was released by the author(s) of Twilight would it be considered a rip-off of 50 Shades of Grey? What if it was revealed to be in the works prior to the release of 50 Shades of Grey?

[1] http://djtechtools.com/2012/03/25/legal-concerns-for-digital... [2] https://en.wikipedia.org/wiki/Legal_issues_with_fan_fiction


The world would have missed out on Gilbert Gottfried reading this: https://www.youtube.com/watch?v=XkLqAlIETkA


Cooyright protects companies' interest, and companies by default will try to milk as much money as they can from anything, so while your argumentation is very well worded (and I do believe you sincerely mean it in a good way) copyright does very little to protect the author himself but only the corporation that enables him to publish his work in the first place.


When a casual passer-by records, copies, and disseminates, no physical aggression is committed. The enforcement of copyright law depends on a third-party initiating a threat of force against property, freedom, and life to dissuade such actions.

Copying is non-violent, whereas preventing it requires violence. And where does copying end, and thought begin? If I examine source code, or lyrics, or a short story, reflect on them, talk about them, and use what I have gleaned, haven't I copied them to some degree?


Is that your libertarian rationalisation against copyright? Because with that kind of logic we couldn't have contracts either (breaching a contract can be non-violent).

> And where does copying end, and thought begin?

In the same way we decide when a person becomes legally major. We draw whichever arbitrary line seems to make the most sense.


with that kind of logic we couldn't have contracts either

That a false equivalence, contracts are between two parties who both have no grant of violence.


"The Bono law may have slipped through Congress with nary a dissent in its day but this will not happen again, whatever the lobbying power of Disney and others."

Why? What's changed?

"Those who are creatively working to change the world - developers - loath having artificial barriers that block those benefits"

No, developers won't make a single change to the laws as long as those laws protect the rich and powerful from having to work.


> Yet, as much as people believe that information ought to be free, it is a fact that simply letting any casual passer-by copy and distribute any creative work with impunity would certainly work to rob those who may have spent countless hours developing such works of the commercial value of their efforts.

It's the other way. You cleverly switched the "ought" with the "fact".

What is a fact, is that "intellectual property" is not a real, tangible thing, like physical property. We only reason about IP in this way because we say it is. IP is made of words, the concept is willed into existence by copyright laws, and is only real as long all parties agree (or are forced to) to treat it as such, but the way it works is exactly however we collectively decide it ought to work.

That's unlike the concept of physical property, which is simply forced into existence, due to the fundamental properties of matter+energy, being that that what is not destroyed or created, nor goes away when you stop believing in it. Properties that actually apply just fine to information too, it exists in the physical world after all. It just represents such a minuscule amount of energy that it appears almost completely free, even when compared to just the energy required to entertain it as a human thought ...

Information isn't really free, people just get all twisted up about the fact that it's fundamentally worth very little, compared to almost anything else. But the information was never the valuable part. If you offer to clean my dirty kitchen, that's worth some value ultimately based on energy required to perform the service. Note you can only sell me this service once. If you just tell me about a clean kitchen, that's also worth some value ultimately based on energy required to perform the service--roughly the same order of magnitude as the value of the utterance "cool story bro".

We're really still very much haggling over the price of information. And the offers on both sides of the table are not even remotely in the same ballpark. Both sides are playing hard, using all the tricks in the book and out of the box.

And that's possible, all right, I guess. You can force or decide to artificially prop up the price of something way beyond its value. They do that with diamonds and probably many other things. There's some tricks that can make that work for a rather long time, even. But ultimately you're not extracting value from the thing, but a power differential that indirectly imbues the thing with value.

This indirection is a way to create an "ought", but not a fact.

Which is fine in principle, there are many "oughts" I support completely, making up what I believe is good and right. But I accept that I cannot argue those as "facts", but only in other ways, preferably based on an ethical framework (but if you must, any power differential will do).

Now, I believe, and I don't know if this is a fact, that the situation is untenable. Maybe I'm overlooking something, but I doubt even copyright law can artificially prop up the value of information indefinitely. It merely postpones the inevitable crash to its true value. For instance, I am an artist, I can make a beautiful illustration or piece of music, and give it away for free. Not all artists might want to, but enough will to kick the bottom out of the market, if slowly over time.

The only way to prevent me from doing that, is to forbid me giving away my work for free, or forbid/complicate the public domain. What is what would happen if I offer my work to the world, but I lack the control to keep it free, only for some party that will play the game, to swoop in, assume ownership and sell it as IP even though it is against my wishes. Which I hope you agree would be at least as bad a situation as today's content producers crying about piracy=robbery. Yet it is exactly what today's audio/video streaming services are lining up to enforce. Someone has to own your works as intellectual property, or they will own it for you.

And ultimately the content producers get screwed out of their rights, which I hope by now you also see coming from miles away, because the value never came from the content, it came from the power differential enforcing the concept of intellectual property.

As a content producer, I'd MUCH rather get screwed over by piracy (which is available to everybody equally) than giving the large "content industry" corporations the exclusive screwing me, giving them the power to enforce intellectual property rights however they see fit. But don't think for a moment that I, small time content producer, will be in control of my content for anything more than its fundamental worth.

And either way, as an artist, I'll keep producing beautiful things because I enjoy doing so. Regardless.

And either way, if you want to make a living off content production, the only way is to sell the service (commission), not the content. Regardless.


> It is right that the author of a creative work get protection for having conceived that work and reduced it to tangible form.

This is incorrect (and I didn't grow up in the digital age, unless you call 4 function calculators the "digital age"). There is no such right. It is not a human right, nor is it something that you are intrinsically entitled to have.

Copyright is something that is endowed upon you by the government. It is intrinsically owned by society. You are granted a limited monopoly on copying. If society did not grant you this monopoly, you would not have it. This is how it has worked historically and this is how it is written in law currently.

The problem that you may be facing is the "right" in "copyright". It is an overloaded term. It refers to your legal ability rather than your moral entitlement.

Because copyright is not an intrinsic right, but rather a societal grant, it is important that we weigh the societal benefits of this grant. In my opinion, in this case the ability to receive a copyright for an API is counter to the intent of copyright. For example, why can we not copyright recipes or game rules or fashion designs? I won't rehash 100 years of legal debate on the subject, but rather give my opinion that similar criteria should be applied here.


Your parent poster said 'it is right', not 'it is /a/ right'.

You're attacking a statement that didn't exist in the parent post.


Interesting. I definitely missed the lack of the "a". I wonder if it was an intentional lack or unintentional.

So, now I am a bit confused. Do they believe that they are morally entitled to a monopoly, or do they believe that it is simply a good idea? Because in the first case, it doesn't really alter my post. From societal standards, they are not morally entitled to the monopoly. The parent is, of course, free to disagree but they stand against centuries of legal history where this just hasn't been the case. It would be incorrect to state that only those who grew up in the digital age disagree.

If it is the second, then I will agree in general, but I think we should be very careful to balance the benefits. I believe that copyright on APIs will cause significantly more harm than good. So in this specific case, my opinion is that it is not right (as in not a good idea) to do it. It is certainly a debatable issue, though, with many reasonable arguments on both sides.


I'm not so sure about that; I believe "it is right" implies the existence of a moral right. That may not have been the direct intent of the parent comment, but it definitely follows from that claim.


It seems that he was arguing against the sentiment rather than the statement


> There is no such right. It is not a human right, nor is it something that you are intrinsically entitled to have.

I disagree with that. To the extent that any rights are "natural" or "human" (as opposed to all rights being creations of the government), I think copyright is entitled to that status more so than say rights in land. My back yard is something that was here before I was born and will be here after I die. I had nothing to do with its creation, and I just bought it from somebody who bought it from somebody who stole it from the Indians. How on earth do I have a greater, more fundamental, right to that than to something I created out of non-existence?

If you build a business, you build it on the back of government-educated workers commuting on government-built roads, etc. "You didn't build that" and whatnot. But we consider you to have a moral entitlement to own and control your business, without assuming society has any special right to it other than universal obligations like paying taxes. But creative works--while they are influenced by society to a degree--are to a much greater extent singular products of creation. But you want to say you don't have a moral entitlement to it?


For one, it's amusing to see you lean on naturalness of rights, and for another, the term "intellectual property" is a relative novelty, meant to equate the output of the intellect with goods and land, which is resembles not at all.

So, while there is a case for limited (a word which should have meaning) government-granted monopolies on products of the mind, they just don't have the same standing as rights which, if not natural to being a human, have a longer tradition than modern national governments. The word "natural" has meaning at least in terms of precedence, if not bloody in tooth and claw nature itself.

In other words, we could claim and defend a right to our lives and property and freedom to move about long before we could claim such a right to our thoughts as recorded somehow. We had to wait for government granted monopolies for the latter.

Finally, government itself holds copyright away from other rights. It's an experiment. It doesn't claim to be protecting such a right as a basis for legitimacy, but granting a limited protection. It's the difference between acquiring legitimacy and using it.


I don't think natural rights exist. I'm just accepting OP's premise in order to question why your right to something you didn't create should be more fundamental than your right to something you did create.


Copyright is a monopoly. I think that's what is confusing. The human right to own something (not necessarily land) is not a market monopoly, except in the trivial sense that there is only one of them and if you choose not to give/sell it away, nobody else can have it.

When you make a creative work, you own that work. This is a human right. It is yours. If you never show it to anyone, then they can't copy it. So in a way, you have the same monopoly in a trivial sense.

Let's say you have an apple and you eat it. I happen to have an apple to and watching you eat it I think, "That looks delicious. I'm going to eat my apple too". It's my apple. I'm allowed to eat it. I'm allowed to copy your action. It's a basic freedom that I enjoy.

Now imagine that you had a monopoly on eating apples. Well, that's pretty horrible for the world. Even if you were the very first person to think of eating an apple, it would be terrible for us to give you a monopoly on eating apples. There are lots of apples. I'm not depriving you of your human right to own apples (or eat them if you choose). Just because you happened to think of it first is no reason to deprive others.

The important thing is: you have no human right to stop others from eating apples. Even if nobody had thought of it before, your human rights only go as far as yourself and the things in your possession. Similarly, even if I was hungry, I have no human right to force you to show me how to eat an apple. It's your apple. It's your body. You can do what you like.

Let's say you have a piece of canvas and some paint. You paint a picture of an apple on your canvas. I think, "Hey, that's pretty cool". I happen to have a canvas and some paint. They are my canvas and paint and I can do what I want with them.... except paint a picture of an apple that looks like your picture. Because you have a monopoly on painting pictures that look like that.

This is almost as terrible as giving a monopoly on eating apples. However, as a society we have decided that we want to encourage innovative apple painting. So even though it is kind of strange, we grant a limited monopoly to anyone who paints an apple that looks different than apples that anybody else has painted previously.

So instead of a human right, what we've done is get together as a society to say, "Apple painting is an important part of our culture and we like to see new apple paintings. It is boring to see the same picture over and over again." We all agree (collectively, through our society) to abstain from copying other people's apple paintings for a certain period of time.

Now, do we have the right as a society to force you to divulge any new apple paintings you might draw? If there is a sudden famine and the only food we have are apples, do we have the right to force you to show us how to eat apples? I am not an expert in these fields, but I suspect that these examples would infringe on human rights, even if it would help society as a whole.

I hope that makes the issue more clear.


> It is an overloaded term.

That is the most computer-programmery way of saying "homophone" or "different sense of the word."


Wow, your comment doesn't even fit in its entirety into my browser window without scrolling. :) For posterity you may want to edit "No one has a stake is seeing that Oracle be awarded $9", I'm not sure how to parse that. I didn't find any other typos or grammar mistakes which is pretty amazing for a chunk of prose of that length (at least it is for me.)

Don't know why you're being downvoted for giving such a comprehensive and thoughtful comment. Ridiculous really. I say even if you disagree with grellas don't donwvote, please reply and put the same amount of effort into the reply as was put into the comment above.


> No one has a stake is seeing that Oracle be awarded $9 billion in damages just because it bought Sun Microsystems and found an opportunity through its lawyers to make a big money grab against Google

My paraphrase: ~[No one outside of Oracle is overly sympathetic to their money grab against Google. Everyone sees their claims as overly-litigious--based on the simple fact of having purchased Sun Microsystems rather than a legitimate defense of their own creative and value-creating effort.]


Effort for effort is eye for an eye fallacy.

The OP seems to make some mistakes of fact. The decision was not Alsup's, but the jury's finding of fact: Google's use is fair even if API's are copyrightable (Alsup believed they weren't).

For the quote you don't understand, I believe the mistake is only in a single character, 'is' should be 'in' (to which I present Larry Ellison as the central counter-example).


Thanks, I corrected the typo.

As to the first round that occurred 4 years ago, the decision was Judge Alsup's. Here is my analysis of that decision at that time: https://news.ycombinator.com/item?id=4050490#up_4051761

Of course, in the verdict that just came down, the decision was that of the jury's and, yes, Google's use is fair even if API's are copyrightable - that is what fair use means.


These are the statutory fair use factors the jury was required to consider (17 U.S.C. 107):

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

It's a somewhat surprising result, because two of the factors weigh heavily against Google (it's a commercial work, and was important to Android gaining developer market-share). Oracle's strategy going forward, both in post-trial motions and in any subsequent appeal, will be based on arguing that no rational jury could have applied these factors to the undisputed facts of the case and concluded that the fair use test was met.

It's also not a particularly satisfying result for anybody. If API's are copyrightable, then I can't think of a better case for protecting them than in this one, where Google created a commercial product for profit and there was no research or scientific motivation. It wasn't even really a case (like say, Samba) where copying was necessary to interoperate with a closed, proprietary system. Davlik isn't drop-in compatible with the JVM anyway.

That makes Oracle's win on the subject matter issue basically a pyrrhic victory for anyone looking to protect their APIs. They're protectable, but can't be protected in any realistic scenario.

And if you're in the camp that believes APIs should not be protected, this precedent--if it stands--means that you'll have to shoulder the expense of going to trial on the fair use issue before winning on the merits.


As to factor number 1, the purpose and character of the infringing use: In the 2 Live Crew / Pretty Woman case, the Supreme Court held that just because an infringing use is commercial, that doesn't automatically mean it's unfair (although it is indeed an important factor). [0]

As to factor number 2, the nature of the copyrighted work: For the last 20 years or so, courts have been backing away from the expansive approach of Whelan v. Jaslow and instead using a Computer Associates v. Altai "abstraction, filtration, comparison" analysis; in the end, courts typically hold that copyright protection for functional aspects of software is "thin." See, e.g., UC law professor (and MacArthur "genius grant" recipient) Pam Samuelson's 2013 review of the case law. [1]

From what I've read of the facts, number 3 -- the amount and substantiality of the portion used from the copyrighted work in relation to the work as a whole -- might have weighed heavily in Google's favor.

As to number 4, I didn't get a sense whether or not the evidence showed that Android has had a material adverse effect on the market for Java; that weighed heavily in the Supreme Court's thinking in the 2 Live Crew case.

[0] https://supreme.justia.com/cases/federal/us/510/569/case.htm...

[1] http://scholarlycommons.law.northwestern.edu/cgi/viewcontent...


Good point about factor #4. But (in light of dragonwriter's comment below): wasn't Sun making a play at getting JVM into peoples' phones before Android stole their thunder? Or am I misremembering the timing?


Oracle tried to argue that, with seemingly limited success. Bringing up SavaJe didn't help them. It clearly wasn't equivalent to Android in any way.


JavaME had existed for years. There were a few very good apps (Google Maps was great, as was the Facebook app). Given that even the cheapest phones included it I can't imagine Sun was making any money off it.


It was a major source of licensing revenue for Sun, and one of the main reasons why historically they had been reluctant to open source Java. They were making around $200M revenue from it in 2007, which was the major source of income for their software business.


I thought this part of an Ars Technica article[0] on the trial was pretty telling:

"On cross-exam, a Google attorney brought up a graph from an internal presentation by Brenner showing "aggressive" and "conservative" estimates of what would happen to Java licensing revenue from 2007 to 2010. The graph's "aggressive" line showed a decline from around $140 million per year to about $105 million, and the "conservative" line showed a decline from the same starting point to around $50 million.

The graph was created before the launch of Android. Google's point was clear: Java was in decline, Android or no Android—and its executives and salespeople knew it."

It doesn't really matter what the numbers were though. They would have been higher had Google paid Sun for a Java license.

[0] http://arstechnica.com/tech-policy/2016/05/suns-head-of-java...


That's not relevant to fair use analysis. What's relevant to fair use analysis is if Java's market would have been bigger if Google neither bought a license nor produced Android. Obviously, any unlicensed use of a copyright protected work is going to reduce the caller of the protected work compared to the exact same behavior coupled with paying for a license, but that's not what the market effect factor is about.


You miss the case where Google had produced Android with a different platform (LLVM, Objective-C, or their own language). Since Java was in decline on mobile, it should have just entirely ripped Java from the mobile market.


I don't miss that case, I just don't believe it's the relevant one for fair use analysis. Though, if it were, that would weigh even more heavily in Google's favor.


Phones have had Java since 2001.


Google argued that feature phones only had Java ME, which only included a small subset of Java's APIs, in contrast to Android, which includes significantly more Java (SE) APIs, as well as Android-specific APIs. My layperson understanding of that argument was that their use of Java was transformative because feature phones running Java ME were completely different from Android smartphones.


Indeed, Google spent a lot of time making this case to the jury. I could be mistaken, but I fear this is going to be the basis of a reversal on appeal, because what "transformative" means is ultimately a matter of law (indeed, the word itself comes from a Supreme Court decision rather than the text of a law), and to me Android looks completely different from previous things considered "transformative":

http://www.nolo.com/legal-encyclopedia/fair-use-what-transfo...


When you look at Android and then look at previous phones with Java and apps on them it's hard to argue it isn't transformative. The difference between SavaJe and Android is night and day.


It wasn't even really a case (like say, Samba) where copying was necessary to interoperate with a closed, proprietary system.

Samba never copied anything.

The interoperability argument was simple. Google wanted to use a language that was familiar to most and where developers could take existing code and port trivially. There are developer tools on the market that have done that for decades.

Davlik isn't drop-in compatible with the JVM anyway.

Oracle were never going to get away with that crap argument. To say that had Google copied all the APIs and created a compatible JVM that would have constituted fair use is laughable frankly.

Sun also open sourced Java which doesn't help them at all, and Oracle somewhat pathetically tried to backtrack on that.

That makes Oracle's win on the subject matter issue basically a pyrrhic victory for anyone looking to protect their APIs. They're protectable, but can't be protected in any realistic scenario.

The only sensible outcome. Had Oracle won we would have had years of court action in the developer software tools market until someone saw sense and simply ruled fair use in all cases. That may still happen.

And if you're in the camp that believes APIs should not be protected, this precedent--if it stands--means that you'll have to shoulder the expense of going to trial on the fair use issue before winning on the merits.

We'll have to get to a point where if court action is raised then it will automatically have to be thrown out. You can copyright APIs, but you can't tell others how they should be used.


>Oracle were never going to get away with that crap argument. To say that had Google copied all the APIs and created a compatible JVM that would have constituted fair use is laughable frankly.

Besides, how is the argument that Google effectively didn't copy enough at all consistent with the fair use factor regarding the amount of expression copied?


It's not, but Oracle had got themselves into a bind over the definition of 'interoperability'. They did indeed argue that Google hadn't copied enough, in so many words.

The trouble is that interoperability takes many forms and can't be shoved into a neat box like that.


> You can copyright APIs, but you can't tell others how they should be used.

What does that mean? What privileges would such a copyright provide? What could I do with the copyright that I couldn't do without?


It is as ridiculous as it sounds. There is simply no case at all where API use cannot be sensibly argued as fair use. That's why you use an API in the first place........

What privileges would such a copyright provide?

In practice? None.


> There is simply no case at all where API use cannot be sensibly argued as fair use.

An API being used by a client and an API being copied by a competitor to be used by those same clients are two completely different situations.


Nope, they aren't, or at the very least, the difference between them is as to be indistinguishable. That's what the jury decided here.

Using API and the word 'copied' in the same sentence simply doesn't mean anything.


I think you've just started to delve into the problem domain of copyright vs copyleft and why there are legal considerations when you allow people to access your software using an API.


Wave around a piece of legal paper with your name on it, if you file it with the copyright office.

And that's about it.


> Samba never copied anything.

According to this case, they did.


Nope. Not sure where you're getting that from.


Samba is API compatible with Windows file server.

Unless you are arguing that network protocol compatibility is a different thing? It seems to me that there is a lot of overlap, since Samba relies on re implementing the same behavior as a Windows file server.


Copyright doesn't care about the software's behavior, just the text and structure of the code. Samba implemented CIFS without looking at or copying any Microsoft code.


This is such a key point and yet also quite confusing. Obviously copyright is not patents. Copyright is about preventing literal copying of someone's creation.

So.., if you implement an API in a different programming language, such that the text and structure is different, and yet the function remains the same... then have you not infringed any copyright?


Copyright is about literal reuse of someones functional product, not about reuse of the abstract ideas that make up it.

To me an API, is just a formalization of declaring your intention to implement a particular functionality.


That basically used to be true, but this trial was over the "sequence, structure, and organization" of the API.


How can you copy an API without looking at the original API? They might not have looked the implementation, but if the API itself is copyrighted, won't looking at it suffice to be infringement?


If there is one thing I've learnt for sure from all the random forum posts used in this trial, it is that "IANAL" is a good thing to say!

Nonetheless, I don't think the clean-roomness or otherwise of an implementation has an impact on this. Otherwise someone could copy music by listening to it and replaying it.

Like you said: the copyright is on the text, pattern and structure of the code. But it doesn't matter how it was replicated.


Reverse engineering is not a defense against infringement if the subject of reverse engineering is copyright-protected.


It generally is. That's the whole point of clean-room reimplementation. You have one set of engineers that reverse engineers a product to develop a spec, and another set that implements the same functionality from the spec. That's kosher and has been upheld in several court cases.

The trouble for doing that with Java APIs is the spec basically is the class declarations. You don't just need to "do the same thing" you need a tangible source file that has at least in part the same text.


It kind of depends - in some jurisdictions, for example, interoperability requirements is a sufficient defense against copyright infringement, i.e., if you've built your product so that interoperating with it requires [re]using copyrighted parts, then it's okay to do so (up to the extent required for interoperability) even if you explicitly forbid it.

Sane laws such as that automatically prevent issues such as this Java API dispute and also things such as the attempts to block interoperability for coffee machine "pods" by requiring a copyrighted magic string and using DMCA to prevent others from using it.


Samba uses NO Windows APIs.

Please learn the difference between an API and a network protocol, else you end up looking foolish.

https://www.samba.org/ftp/tridge/misc/french_cafe.txt


Please learn the difference between an API and a network protocol, else you end up looking foolish.

I don't believe that the distinction is that clear at all. Hence my comment:

Unless you are arguing that network protocol compatibility is a different thing? It seems to me that there is a lot of overlap, since Samba relies on re implementing the same behavior as a Windows file server.

I think it is pretty easy to argue that the pattern of network calls needed to make calls (eg authentication) is an API.

Is a WSDL SOAP definition an API? I think most would say yes. A REST endpoint and the definition of how to use it? Why exactly is the definition of the HTTP protocol different to the definition of the REST endpoint?

IANAL, etc. Which seems important these days.


A linearized network protocol is not an API. That distinction is very clear. Read the Microsoft protocol specs. They say nothing about API's used to send/receive the protocol - only how the protocol elements are encoded on the wire.

The API's that Samba uses to access that protocol are nothing like the Windows API calls (and are a completely independent implementation).


I don't disagree at all!

I'm just pointing out that it isn't at all clear to me that the strong distinction that software people see between APIs and protocols is as clear under law.


It's not nearly as cut and dry as you're making it. Wiki of all places defines 'API' to be broad enough to include network wire protocols and endpoints. This trial was over "sequence, structure, and organization" rather than literal copying.

And of course Samba isn't built of WIN32 APIs, that's not what we're talking about.


If you automatically throw out cases, what's the point of having a law enabling and encouraging those cases in the first place? Or maybe a better question is: what would legitimate infringement look like, if what Google did is fair use?

I don't know if APIs should be subject to copyright or not. I certainly don't want them to be. But since APIs have been found copyrightable, it's hard to understand how this wasn't open and shut for Oracle.


Thus far, APIs have only been found copyrightable by the court that is specifically about patents. It's highly doubtful that any court capable of setting binding precedent on the matter will agree, especially to the same industry-destroying extent.

It should be expected that when a district court and its jury have their hands tied by a bad appeals court decision, the outcome will look a bit odd. In many ways our system of case law functions like a body of software where patches can only add lines of code, not remove them. Convoluted solutions to work around previous mistakes end up practically set in stone and refactoring is at best a once in a lifetime opportunity.


> If API's are copyrightable

> And if you're in the camp that believes APIs should not be protected, this precedent--if it stands--means that you'll have to shoulder the expense of going to trial on the fair use issue before winning on the merits.

worth remembering that since that decision was made by the Federal Circuit, it has no bearing on the rest of the court system when it comes to copyright. There is no place where "APIs are copyrightable" is binding precedent.

Any lawsuits that don't end up in the Federal Circuit (which pure copyright suits never do) will have to start from "are APIs copyrightable?" before having to make any sort of fair use defense.


> Any lawsuits that don't end up in the Federal Circuit (which pure copyright suits never do) [...]

It seems (based on this case) that you could make that happen by simply throwing in a patent claim, even if you'd get defeated on that point (which happened to Oracle). Not sure if that's a general rule one could exploit, or something that just happened in this case?


This actually gets exploited all the time to get into the Federal Circuit's "arising under" jurisdiction :)


Fair point. I'm reminded why I don't get too familiar with US law in these cases.

Starting from "Are APIs copyrightable" all over again? Great......... More legal fees, court time and nonsense.


Just has to happen once though.


It's always going to be tougher to get a no reasonable jury finding on a factor test like that than an element test. Implicit in a multi-factor test is that the weighing of the importance of the various factors with respect to each other is left to the trier of fact.


Errr, you didn't do factor one properly :)

"Under the first of the four § 107 factors, "the purpose and character of the use, including whether such use is of a commercial nature ... ," the enquiry focuses on whether the new work merely supersedes the objects of the original creation, or whether and to what extent it is "transformative," altering the original with new expression, meaning, or message. The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use. "

Campbell v. Acuff-Rose Music, Inc. 510 U.S. 569 (1994)


Is Dalvik's use of the Java API transformative? My understanding of Cambell is that it's the Google Image Search scenario: where the thumbnail of the copyrighted work is fair use because it serves a totally different function than the original work.


So, i'm not going to express a precise legal view here (i am sadly too involved, i'm just going to stick to answering more general questions and pointing out what caselaw says), just pointing out your analysis of commerciality as the goal of the first factor is precisely what SCOTUS said not to do :)

I will simply point out, as i did in another comment, that the court of appeals in that case did in fact, claim that because 2 live crew took the heart of the old work, and made it the heart of the new work, that it was not transformative, and SCOTUS said that was wrong.


But function is not something to be assessed in isolation. The context is important too, as "the Java API" is not expression for expression's sake and has little intrinsic value. Google argued that they brought a system built originally for desktops and servers (the domain of JavaSE) to smartphones. Whether that's "transformative" is up to a jury.


If anyone is curious to see a summary of Oracle's claims to Google's copying not being fair use, the slides for their closing arguments are available at Ars Technica: http://arstechnica.com/tech-policy/2016/05/how-oracle-made-i...

Disclaimer: I work for Oracle, though not on Java.


Thanks. Quite apart from 'Java' having been open sourced, Schwartz also got up and told everyone this was all OK. Oracle really did face an uphill battle with that since it's nigh on impossible to take back.


And not to mention how difficult it would be to apply Oracle's logic to the innumerable applications that have modified a java version for their own use. I know this is argued in other posts on this thread, but just how in the world can Oracle justify FOSS and its implementation thereof a violation of copyright in these cases as well?


>Oracle's strategy going forward, both in post-trial motions and in any subsequent appeal, will be based on arguing that no jury could have applied these factors to the undisputed facts of the case and concluded that the fair use test was met.

Didn't a jury just do exactly that? I realize Oracle must have an opinion contrary to the ruling else what's the point of an appeal, but will that really be the line of attack? We don't like the outcome, therefore we question whether the jury knew what they were doing?


> We don't like the outcome, therefore we question whether the jury knew what they were doing?

Actually, that's pretty much exactly it. An appellate court is capable of ruling a jury finding as contrary to the weight of evidence. It's basically a mistrial ruling -- that the jury did not perform as required -- and therefore permits a retrial. It's a pretty rare occurrence, though.

EDIT: This seems to be a good review:

http://www.litigationandtrial.com/2012/04/articles/trial/con...

Specifically: "Rather, the role of the trial judge is to determine that notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice."

So, the basic argument from Oracle could go something like, "The jury did not properly weight the fact that the copy was performed for commercial reasons and therefore cannot be fair use."


That's going to get messy. Very messy. It has to be crystal clear really for that to happen, but all you'd end up with is more debate on what parts have greater weight.


I don't see why it would necessarily get messy. Remember that appellate court does not accept new facts. The judges reviewing the case will do so based entirely on the facts found during the trial case and make a ruling. The only thing they would need to rule on is whether a particular fact was weighted properly by the jury. Remember, jury members are not expected to be experts of law; that's the judge's realm. So it's possible for them to misapply the law, and this process is a way to correct that.

I can certainly see an argument here that certain facts, such as commercial use, were not properly considered by the jury. Commercial use is typically a very large factor in fair use, and should receive a correspondingly heavy weighting.

Also, remember that this would merely permit a retrial. It would not be an immediate ruling for Oracle, as one normally thinks of appeal decisions. It would be a big reset button on the whole process.


The only thing they would need to rule on is whether a particular fact was weighted properly by the jury.

Good luck with that here.


You are presenting a very cynical view of the justice system and judges without any reasoning backing your claim. "Good luck with that" is not really a valid debatable response.

There's a huge backlog of fair-use cases for them to base their decision on. I don't think it would be particularly difficult or nasty in this case, given that the ability to copyright APIs was a presumed fact during the trial. Also, the judges do not all need to agree; majority vote wins. So the moment they feel that further debate is unproductive, it's time to vote and move on.


I'm presenting reality I'm afraid.

It is going to have be be very clear and something that can be ruled on in a short space of time. There is no way you can argue at all that anything clear has been missed here, or argue in clear terms how things have been weighted.

Stuff like arguing that commercial reasons haven't been weighted properly is entirely subjective, because it depends on arguing how transformative use is - and that is what has happened here. The jury have already decided on that one. The 'backlog' of fair use cases will simply throw up the same subjective issues.

An application like that to a court is not going to impress any judge one iota. You can't just wander back into court and argue "The jury has been unreasonable" without some totally solid evidence. The jury also ruled unanimously, so it wasn't even close.


And there's almost nothing crystal clear in US fair use law. I agree it seems inconceivable to argue that 'no reasonable jury' could have done just about _anything_ regarding a fair use determination. There are so few clear lines in the established law.

But the federal circuit could surprise us yet.


Thank you for the explanation!


> there was no driving need to interoperate with a proprietary one

That's highly debatable - both the need for interoperability and the proprietary parts. Making the platform attractive to developers is a driving need making it interoperable is a byproduct of that. And Java was open sourced in 2007.


Given the fact that Java is open source and was open sourced in 2006, how does Oracle have a case? I'm asking legitimately not understanding how this even has a leg to stand on.


Google didn't base their implementation on OpenJDK, even if they had they didn't follow the terms in the GPL so (given it was copyrightable and not fair use) this wouldn't be a defence.


This is irrelevant. There was a ridiculous notion going around a while back that if Oracle lost then the GPL would become unenforceable.

The GPL does not depend on copyrightable APIs, and says nothing about what Oracle is trying to argue. Linking to a library and merely using an API are two different things. The GPL depends on the former and says the latter is neither here nor there.


> The GPL does not depend on copyrightable APIs

True in terms of the GPL as such, but the FSFs interpretation that the GPL applies to works that link, even dynamically, to a GPL covered work, which it holds to be derivative works, depends absolutely on the API presented by a library being a copyright-protected element (it also probably can't stand even then without an extremely narrow interpretation of "fair use".)


This is not a much a question of the API as it is of the effect during execution. If the API would be considered to be what was protected then copyleft code can never be cloned in an interoperable manner under permissive licenses.

Instead the idea is that the code linking to GPL'ed code generates a new work during execution that's a derative of it AND the GPL'ed work, inheriting the copyleft license, requiring a compatible license on the linking code.


Where the GPL is concerned the distinction between linking when code has been compiled and the API itself is very clear. Code is copyrightable, but headers and interfaces do not make something else a derivative work. Stallman agrees on this one:

http://lkml.iu.edu/hypermail/linux/kernel/0301.1/0362.html

The code depends on copyrighted libraries, but, this has nothing to do with whether the method of calling a GPLed code library is itself copyrighted.


That is a very surface based interpretation of FSF stance on the subject. What I have heard from members of FSF board members is that the dynamic linking aspect of GPL is a simplified rule that a non-lawyer can use to identify when a derivative work is created.

The primary argument is the simple question: is there two disconnected works or a single work with separate parts, parts that exist either for technical reason or for plain arbitrary reasons. Software that is dynamically linked can't be run without the dynamic library, is dependent on the library, and generally has no purpose if you try to use it without the library. If a judge/jury member will view the complete work as the software+library, then the method of linking the two together is irrelevant.

The "first" case of this was a patch to GCC. The patch would not have much purpose without GCC. A common sense approach would be that the working Objective-C compile had two parts, the patch provided by apple and the compile provided by the GNU project. RMS initial thought like most programmers that since patches seems like separate parts than it was separate and disconnected works. However, it was unclear so he asked a lawyer and thought that a judge would not view it like that. From there the dynamic linking guideline came to be and that is where current thinking has stayed. Nothing about API is needed for this, and GPL would still work tomorrow if someone created a third method to link software together as a single work.

A interesting future case would be a program that is dynamically linked to a library that exist under several different licenses. Such software would have a strong argument to be disconnected from their library, but they would still be incomplete and a judge would likely put a lot of weight on the developers intention rather than any technical aspects.


Why? A license is just a contract, no? Can't the clauses be arbitrary?

I mean, could you have a clause in a license that said "to distribute this work, you need to wear purple shoes on Mondays"? If so, why wouldn't you just be able to say "to distribute this work, you need to distribute works that link to it under the same license", as as arbitrary condition?


> Why? A license is just a contract, no? Can't the clauses be arbitrary?

You don't need to abide by a copyright license if you aren't doing anything for which permission of the copyright holder is required in the law -- a copyright license is only needed to do things which would otherwise be prohibitd as within the exclusive purview of the copyright owner.

As the GPL isn't a sale contract that you must agree to as a precondition for receiving a copy of the software, when you receive a copy of GPL-covered software you can do anything you want with it as long as that isn't legally within the exclusive prerogative of the copyright owner (or contrary to the law for some other reason), and the GPL itself is irrelevant. The assertion by the FSF that particular uses of GPL-licensed software are constrained by the license is, therefore, necessarily an assertion that those uses are within the scope of the exclusive rights provided by copyright law.


The assertion by the FSF that particular uses of GPL-licensed software are constrained by the license

Ah, that's what I was missing. When did they assert that the use by itself (with no redistribution) is constrained by the GPL? That seems to go directly against their FAQ:

  If I only make copies of a GPL-covered program and run them, without distributing or
  conveying them to others, what does the license require of me?

  Nothing. The GPL does not place any conditions on this activity.
http://www.gnu.org/licenses/gpl-faq.en.html#NoDistributionRe...


Sure, you can make arbitrary restrictions for how to distribute a work in a license.

The question at hand is whether you can impose these restrictions in the viral fashion of the GPL, e.g., on code I write that merely makes use of your APIs.

The way that the GPL attempts to enforce this is with copyright law, by not granting you the right to redistribute GPLed software unless you comply with it. By design, it doesn't restrict anything else about how you use the software.


Open source is just a blanket term for a variety of different licenses with different limitations. Earlier court decisions didn't see the GPL license invalidating API copyrights. I guess a poor analogy is that you can use linux code all day long but the Linux trademark is not yours. Nor does Linus personally give you immunity from patents that code might infringe on.


As I see it, only factor 1 clearly weights against Google at all; the other factor you think applied presumably is #4, but Android gaining market is irrelevant to that. The value of or market for Java shrinking compared to what it would otherwise be is what factor 4 is about, and while Oracle no doubt argued this point, it's certainly not indisputable.


The supreme court has repeatedly stated that being commercial or not commercial is not the entire point, and the more transformative the use, the less it matters whether it is commercial or not.

(see the cite to campbell v. acuff rose, etc)

In fact, the precise argument y'all seem to make is disassembled in that case, because it's what the original court of appeals decision was in that case :

"The Court of Appeals reversed and remanded, holding that the commercial nature of the parody rendered it presumptively unfair under the first of four factors relevant under § 107; that, by taking the "heart" of the original and making it the "heart" of a new work, 2 Live Crew had, qualitatively, taken too much under the third § 107 factor; and that market harm for purposes of the fourth § 107 factor had been established by a presumption attaching to commercial uses."

They also explicitly said: " The statutory examples of permissible uses provide only general guidance. The four statutory factors are to be explored and weighed together in light of copyright's purpose of promoting science and the arts. Pp. 574-578."


I'll agree that I was too hasty in agreeing that factor 1 weighs against Google in my rush to make the case that factor 4 isn't a slam dunk.


> That makes Oracle's win on the subject matter issue basically a pyrrhic victory for anyone looking to protect their APIs. They're protectable, but can't be protected in any realistic scenario.

Good. The CAFC ruling is indefensible, like most everything else that emanates from that court. If nothing else this ruling strikes me as a workaround for having an appeals court that is bought and paid for by special interests. For copyright and patents, the courts are so heavily stacked in favor of major rightsholders, and so abused by them, that for those who favor copyright reform it's probably well past the time to hope for rightful justice under the law and better to adopt a "victory at any cost" stance, much like our opponents (i.e. Oracle, etc.) already do.

If Google weasels out of liability because of some lame fair use defense that probably "technically" shouldn't pass muster, I can hardly give a damn given how often the law is twisted in the other direction already.


Would that be like Oracle arguing jury nullification? It seems that the case law on nullification is that the jury's verdict is the definition unless vacated by procedural error. Thoughts?


It's the opposite, in that instead of the jury overruling the judge on law (normally the province of the judge), the judge overrules the jury on the ultimate factual question of liability (normally the province of the jury). The required showing is accordingly exacting (though hardly impossible to meet in practice): no rational jury could have reached the same conclusion.


Do you know where to find the definition of rational that applies in these cases?


In a sense, in that you could view any post-verdict judgement contrary to the verdict as a ruling that the jury attempted nullification of the law where it lacks the power to do so (nullification is only a power juries can exercise to return criminal not-guilty verdicts, other than that, courts may set aside the jury verdict of no reasonable jury could find the facts necessary to the verdict returned on the evidence presented.)


Agreed, it sounds like by the letter of the law Google's use was not "fair use", if you grant the assumption that APIs are copyrightable in the first place.

What recourse does Oracle have now? Didn't the Supreme Court decline to take this issue up last time round? Does that mean this case is closed?


> it sounds like by the letter of the law Google's use was not "fair use"

One of the many things that makes fair use tricky is that the statutory factors aren't exclusive: 17 USC 107 just says that "the factors to be considered shall include" the 4 factors.

The letter of the law for fair use is often not all that helpful.


They've got post-verdict motions at the trial court, if that fails they can speak to the Circuit Court (I think this will go to the Ninth Circuit now rather than the Federal Circuit, but that may be incorrect.) If they fail their, they can petition to have the Supreme Court take up the case (their refusal to take up a different question in an interlocutory -- prior to final judgement -- appeal previously shouldn't be considered a strong signal of whether they would take the same or a different question on appeal of a final judgement.)

At the Circuit and Supreme Court level, expect Google to cross-appeal against the copyrightability issue again (the Ninth Circuit might well rule differently than the CAFC did applying -- in theory -- Ninth Circuit precedent, and in any case I think they'll need to do so at the Circuit level to keep the issue alive for the Supreme Court, which may week take the issue up on a final speak though it declined to do so on an interlocutory one.)


> I think this will go to the Ninth Circuit now rather than the Federal Circuit, but that may be incorrect.

Sadly, it won't. Ars Technica has Oracle's general counsel saying "we plan to bring this case back to the Federal Circuit on appeal"


Yes, it will go back to the federal circuit because they interpret anything that once, ever, had patent claims in the complaint as arising under the patent laws of the united states.

I wish Gunn v. Minton had been more expansive.


Of course. They all want to get paid, and that's really what this is about from Oracle's perspective.


As Rayiner mentions, first they'll be a post-trial motion to vacate or overrule the jury verdict. Regardless of how those motions are decided the losing side will appeal to the Ninth Circuit. Only after a Ninth Circuit panel and perhaps en banc panel rules will one side or the other try for a cert petition to the Supreme Court.


Since Oracle hasn't dropped its patent claims from the complaint (despite the fact that they've already been defeated), doesn't Oracle get to bypass the 9th circuit and vault the case back to the CAFC?


Good point. That's a corner of the federal rules I'm not nearly familiar enough with to give you a confident answer.


It will return to the federal circuit. The patent issues were not even appealed to the federal circuit the first time.

"Because this action included patent claims, we have jurisdiction pursuant to 28 U.S.C. § 1295(a)(1)"

...

"The jury found no patent infringement, and the patent claims are not at issue in this appeal. "

See Oracle America v. Google, Inc. (http://www.cafc.uscourts.gov/content/oracle-america-inc-v-go...)

The federal circuit will, in turn, pretend to apply ninth circuit law.


I wonder whether this time the appeal will go to the Ninth Circuit, or whether instead it will return to the Federal Circuit?


> What recourse does Oracle have now

Your parent already answered that question (although I don't blame you for not noticing):

https://en.wikipedia.org/wiki/Judgment_notwithstanding_verdi...


I wonder what would happen if they try the Supreme Court now.


Well they can't really 'try' the Supreme Court - the Court has to decide to take up the case. Oracle can't demand that they do so.


So, they can try, they just have an additional opportunity to fail that they wouldn't have at the Circuit Court level.


It wasn't even really a case (like say, Samba) where copying was necessary to interoperate with a closed, proprietary system. Davlik isn't drop-in compatible with the JVM anyway.

I have seen this argument a lot but it doesn't make sense to me. Who says it has to be a drop-in replacement at the binary level to have interoperability value? The source-level interoperability is obviously valuable to developers, why ignore it?


> They're protectable, but can't be protected in any realistic scenario

I thought that since the court which ruled that APIs are copyrightable wasn't the court which would normally hear the appeal (due ot the patent issue) their ruling doesn't set a precedent?


(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

1) Is incomplete. There should also be explicit mention of the creation and extension of open software ecosystems, which are of tremendous public benefit in both commercial and nonprofit forms. I guess this is partially covered by (4).


Who thinks APIs should be protectable? That's thought crime.


Oracle, Inc., and the Court of Appeals for the Federal Circuit, clearly.


My favourite part of the trial was when the judge told Oracle that a high schooler could write rangeCheck[1].

[1] https://developers.slashdot.org/story/12/05/16/1612228/judge...


My favourite part:

Movement to a few minutes of terse explanations, including what the acronym GNU stands for: GNU is Not Unix.

“The G part stands for GNU?” Alsup asked in disbelief.

“Yes,” said Schwartz on the stand.

“That doesn’t make any sense,”

http://motherboard.vice.com/read/in-google-v-oracle-the-nerd...


I never realized how entertaining this trial was.

Schwartz: "Back in 2009, Android WAS lame."

Google atty: "Move to strike, your honor!"

https://twitter.com/xor/status/730456825649188865


Yer, it was absolutely hilarious.

They had to get a tech guy in to open Java files on a computer. They didn't have an IDE installed on there and there were complaints that there were too many folders!


Wait till they hear about mutually recursive acronyms like GNU HURD.


Lesson 1: recursion

Lesson 2: See Lesson 1


That was from the first time around in this trial, before it was overturned at the Federal Circuit level and sent back to Judge Alsup for a retrial.


I'd also just like to give huge props to Sarah Jeong for keeping up such a high-quality live stream of tweets over the course of the entire trial. That's reporting done right.


Yep Sarah Jeong @sarahjeong, and Parker Higgins @xor (of EFF) both did great jobs in communicating about the trial. They both provided an account along with some context.

Sarah's reporting: https://storify.com/sarahjeong

Parker's story: https://www.eff.org/deeplinks/2016/05/stakes-are-high-oracle...


> tweets

> reporting done right

I'm not sure. Surely it would only benefit her if she weren't limited by 140 characters, right?


That's one way of looking at it. But using a medium where people expect short, frequent updates rather than a 10,000 word article has its advantages.


There's a wide spectrum between a 10k word article and not being limited.


The realtime feeds I see on other news sites aren't much longer than 140 characters.

So it was okay to choose Twitter, I think.


No. You're allowed more than 140 characters because you can tweet more than once. The real time updates were invaluable.


Not having a limit does not mean you can't post real time updates. But having the limit means you sometimes can't post even a single coherent sentence.


How so? This isn't something where you'll have to decide in a split-second wether to take to the streets in response to this or that development. You could argue that there is some value for stock traders (and tbh, given the result, even for them it's basically the same as it was before), but that's about it.

It's just the "breaking news" frenzy applied to social media. Nothing to celebrate, imho.


Sorry but this was an example of how a real time feed on twitter can be informative in a way that a long form piece could not. A summary of the trial would not be the same as the minutiae that she was able to convey. It was done really well. If all you get is long form from New Yorker or Le Monde, you're missing out.


Well she also publishes stories on motherboard so what are you trying to say exactly...?


Whew, Oracle's lawyers and blind greed doesn't get to destroy interoperability for the entire Tech Industry.

But the fact that Oracle could get this close and spin deceit to a non-technical Jury to decide whether using API declarations from an OSS code-base would in some universe entitle them to a $9B payday, is frightening.


> But the fact that Oracle could get this close and spin deceit to a non-technical Jury to decide whether using API declarations from an OSS code-base would in some universe entitle them to a $9B payday, is frightening.

Yes this was really a close one. I am breathing a sigh of relief now.


They can appeal, but it is going to be very hard for them to get any revenue out of this court action now. That's what this would have been - revenue.


Is it just me, or is this result the worst of both worlds (for the you-and-me's of the world, rather than billion dollar corporates)?

Had APIs been found not to be copyrightable, that would have been great and opened up the development ecosystem for us to use and adapt each other's APIs.

Had it been clear that no this sort of thing wasn't allowed then small developers would have had protection that they could publish their APIs without fear of a deep-pocketed competitor saying "thanks, we're going to muscle you out of the market, using your own design to do it, and ignoring any of that GPL nonsense you've licensed it licensed under, we're just having your API as our own thanks". Not an open world, but at least everyone would be on a level field.

But a "fair use" finding of fact sets no precedent for anything else, gives no protection for the ordinary developer, and essentially means "it turns out you can do this if you're big enough to afford to pay high-tier lawyers for six years". (ie, BigCorp can copy APIs with impunity, but you can't)


If you found Sarah's coverage of the trial useful, she is accepting payments on PayPal since she was doing it with her own money: https://twitter.com/sarahjeong/status/731687243916529665


It costs her money to post on Twitter?


It costs her time, at a minimum, which comes at the opportunity cost of other money-making ventures.


She's strengthening her personal brand and potentially gaining access to new clients for future work. I have absolutely no problem with her asking for donations, but let's not be disingenuous :)


This is the first time I've seen "do it for the exposure" in the wild (http://theoatmeal.com/comics/exposure). And you even called the other person disingenuous (albeit in jest). I'm impressed.


Looks like I missed the part where someone else was making money off her reporting and refusing to pay her, do you happen to have a link?


Ahhhh, yes, the 'giving exposure' argument.


Did you somehow misconstrue my post as an argument that she should not be paid?


Nope. You're arguing nonsense here.


Agreed, but brand doesn't put food on the table!


As I understand it, she was taking unpaid leave from her day-job at Vice Motherboard (despite then producing full-length articles for Motherboard on the topic).


> Are you sure? Maybe her employers allowed it.

Or maybe we can just trust her.

https://twitter.com/sarahjeong/status/732215116465213440


Or maybe she was paid to write an article about the trial for Motherboard.


I think it cost her money to not be working while covering the case.


It costs her money not work while at court.


Are you sure? Maybe her employers allowed it.


She's a freelancer, as are a lot of journalists. She said so herself: takes time away from paid projects.


To the doubters: I'd take her at her word because she's self-brand building and she has a lot to lose if somebody catches her in a trivial lie.

I thought her tweets on the trial were absurd (in the literature sense).

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