There is a reason for this: if it were the rule that an appellate court could easily step in and second-guess how a jury weighs evidence, there would be little room for finality with jury verdicts because lawyers are very skilled (and become very tiresome) endlessly arguing why this or that fact is better than another and why a court should weigh things differently than the way a jury did.
In this case, the Federal Circuit Court did what amounted a wholesale second-guessing of what the jury concluded about the facts here.
I am not saying the issues were not complex and that it had absolutely no basis for coming to different conclusions.
But the zeal with which this particular court upholds IP absolutism is truly a marvel.
This is the court that gave us the frivolous patent bonanza dating back to 1990s by which "everything under the sun" became patentable and many suffered for years from the consequent harm.
So too with the way it is handling copyright law in this Oracle/Google dispute. Yes, by all means, let us protect the hell out of APIs and invite endless future litigation that ensures that easy connectivity in the computer world will no longer depend on engineers but on lawyers. And let us say that "no reasonable jury" could possibly conclude that copying even a tiny amount of code could possibly be "quantitatively insignificant" so as to shield the one doing the copying from claims of copyright infringement, all the better to ensure that future lawyers can conjure up infringement claims from all sorts of seemingly quantitatively trivial copying.
I deliberately exaggerate in how I characterize this decision knowing that it glosses over all sorts of fine points that are the subject of profound argument among lawyers. But I do so to capture the spirit of this decision and what decisions like this mean for computing generally.
Yes, a very broad theory of what is patentable can readily be defended in the name of protecting IP rights and lawyers can come up with endless arguments for why this should be so. So too can lawyers make convincing arguments for very broad theories of copyrightability and very narrow readings of fair use. In both cases, the law protecting IP gets an expansive reading.
Well, speaking as one who has tilled this soil for a long time and who very much supports and sees the need for strong support of IP rights, I can only say that the Federal Circuit Court has proven to be a largely counter-productive force in serving as a specialized court dealing with IP among federal courts. This ruling will do what its prior expansive reading of patent law did: it will set up a legal standard that invites lawyers and litigants to engage in endless second-guessing over copyright and fair use in areas of connectivity and inter-operability in the computing world and this in turn, as a standing invitation to litigate, cannot be good for future development.
It's worse than that. They are supposed to be applying ninth circuit law, and they roundly haven't throughout the entire appeals.
They've made a complete mess of it. First in copyrightability, and now fair use. There are even ninth circuit judges who have spoken out about this.
People very often make the mistake of assuming two people with the same data will form the same opinion, and that where people disagree, it must be due to not understanding the data/etc.
In my experience, this is very wrong :)
I've met the ex-Chief Judge of the federal circuit, Randall Rader, a number of times (he also taught a class i took in law school at GWU).
He's definitely not stupid, is cognizant of how people view his decisions (he said "they loved me when i wrote nintendo vs. atari and hated me when i wrote other things"), and really did believe he is making things better.
Of course, i strongly disagree, but like i said, it's not like he doesn't understand the issues.
Technically, this doesn't have any effect on 9th Circuit law because CAFC decisions applying (and I use that term loosely, here) a particular Circuit’s law do not form new binding precedent for courts in that circuit (or even precedent binding on the CAFC itself in future cases applying the same law.)
But, no, the Ninth Circuit can't intervene that way, though tension between Ninth Circuit precedent and a decision, even if non-binding on other courts, in the CAFC presents an issue similar to a conflict between circuits that would ordinarily seem to weigh in favor of the Supreme Court taking the case on appeal, since avoiding effectively having different systems of federsl law applied to different cases is one reason the Supreme Court exercised it's discretion to hear appeals. It seems certain that Google will appeal this.
Just to get this straight, because I think I roughly know the legal system works in the US, from TV and movies, but then when I apply it to a real world case such as this, it seems too ridiculous for words: by "jury" you're actually referring to a group of about 10-12 randomly selected laymen with no background in law whatsoever, and even specifically selected to also have no background in the subject matter (because knowledge equals prejudice /s), and they get to decide on the outcome of a billion dollar case?
Lawyers will never become obsolete until we no longer live in a society that obeys the rule of law.
In reality, "defining the spec" is the entire purpose of having a legal system in the first place. A nation is a machine that is evolving its own state. There's no outside "programmer" who can observe and define the entirety of the desired state. (Unless you believe in an active interested conception of God, perhaps.)
The legislators, lawyers, and judges who tell us what the law is, are part of society too--and that's why the law changes over time. It's supposed to change over time. The law constrains human behavior, but it also reflects human behavior, so the state of what's legal right now exists in a weird state of superposition between the two.
But, the fantasy that one is outside of, or separate from, society is a popular one--seen most clearly expressed in the libertarian creed, but popular in Silicon Valley too, at least from a business perspective. What do most tech companies want from the government? To stay the heck out of their business, stay far away, and don't bother me. That includes lawyers.
So you're going to get downvoted here, but I don't think that means you're wrong.
It indicates there is a large amount of incidental complexity.
Clearly, exterminating lawyers or deleting random files is not a workable solution. But we should invest in reducing the system to essential complexity. If we are successful, the symptoms will subside.
In this day and age, there are far too many laws to both understand and be sure you are law abiding. Ignorance of the law is a given. Ignorance not being an excuse for something like murder makes sense because you should just know better, ignorance not being an excuse in possession of the feathers of a protected animal that you found on the ground should be valid even though this presents an insurmountable burden to prosecution: it shouldn't be possible that picking up feathers you find on the ground is a crime, but it is.
The sentence "a lawyer who represents himself has a fool for a client" should be an indictment of the legal system and not a jeer at the self-represented. Justice should be given to those who deserve it, not to those who manufacture it through technicalities. The fact that a lawyer is necessary to achieve justice implies you are not achieving justice but rather merely a bureaucratic victory.
This state just renders law into bureaucracy and divorces it from the concept of justice. The rule of law is only sensible insofar as it can achieve justice, not as its own end divorced of anything humanly meaningful.
The more common term is "necessary evil".
In the current world, I think it is more common to be seeking loopholes, weaknesses, and exploits instead.
Corporate law? Their job is keep us from getting sued.
Family law? If you're advocating that human perspective for the opposing party, are you failing your duty to your client?
Prosecutors? Not sure they have that discretion.
General legal services, probate, etc. Doesn't seem that applicable.
Intellectual Property? Human perspective? Unlikely, except maybe the "hard-working inventor" angle.
Defense attorneys? Sure. That could be a good angle - along with any possible opening to exploit.
They shouldn't be advocating the opposing party's human perspective in court, but they certainly should be doing it privately to the client. Things will usually work out better for them if they can reach an amicable compromise out of court rather than having to engage in protracted legal battles with their own family.
> Prosecutors? Not sure they have that discretion.
Prosecutors absolutely have that discretion. They don't have to take every case to court and they don't have to seek the harshest allowable punishment for every case they do take to court. They are supposed to be serving the public interest, not seeking to imprison as many people as possible.
I'd love for you to provide countering perspectives from your broader exposure.
I think the core problem is that this misinterpets the phrase "rule of law", which Google defines as "the restriction of the arbitrary exercise of power by subordinating it to well-defined and established laws."
If your lawyer's arguments, preparation, and skill matter, or if it matters whether you have a lawyer or not, then you are being subject to "arbitrary interpretation" of the legal landscape, rather than to well-defined and established (and understood) law.
Your /lawyer's/ actions affect the judgment, rather than just your actions.
Fair use has four factors, lets see how it shook out:
1) Purpose and Character:
Google tried to argue that because android is free that it isn't commercial. Bzzt. Nope. You don't need direct monetization to make something commercial.
Was it transformative? They verbatim copied shit. Google claimed it was transformative because they used it in smartphones, yo. No. You guys who think patents that slap "but use a computer to do it" onto the end of some existing process are bad? Google's trying to say the same thing per computer form factor.
2) Nature of the Copyrighted Work:
Dealt with previously - APIs are copyrightable. Lots of people have an issue with this, but the previous opinions on that point are where you should go for material on that point.
3) Amount and Substantiality:
Bad faith usage came out around neutral; wasn't a huge amount copied but it was important material, as admitted by Google themselves.
4) Effect on Work's Value:
Direct evidence of market harm demonstrated by showing that Amazon leveraged Google's infringement to lower their license payment. Slam dunk.
Overall, I agree with the other posters indicating that once API copyrights were upheld that this was going to be a clear loser for Google. Maybe they'll get cert and have the supreme court take a look at this following the re-trial.
In my entire career you could not copyright an API. There is good reason for this. If you wanted to do business with certain entities, the implementation had to be multisource. The new implementation had to come from a cleanroom, but in this case it came from open source (which seems equivalent). Therefore you have one judge making one decision that is an anomaly. It seems to me that a single judge should not be making a landmark decision.
This is the 2012 ruling:
Alsup indicates that SSO isn't dead law, but finds that APIs aren't copyrightable because they are 'the only one way to write" things to get the key functionality. Copyright doesn't cover purely functional elements and since the expression and the function are the same, copyright bows out.
Note: I like Alsup, but this argument is based on obviously factually incorrect premises which are blown up on appeal.
Here's the appeal in 2014: http://www.cafc.uscourts.gov/sites/default/files/opinions-or...
They summarize the facts as follows: " And, the court informed
the jury that Google conceded that it copied the declaring
code used in the 37 packages verbatim. The court also
instructed the jury that Google conceded copying the
rangeCheck function and the eight decompiled security
files, but that Google maintained that its use of those
lines of code was de minimis. See Final Charge to the
Jury (Phase One), Oracle Am., Inc. v. Google Inc., 3:10-cv3561
(N.D. Cal. Apr. 30, 2012), ECF No. 1018 at 14 (“With
respect to the infringement issues concerning the
rangeCheck and other similar files, Google agrees that
the accused lines of code and comments came from the
copyrighted material but contends that the amounts
involved were so negligible as to be de minimis and thus
should be excused.”). "
Ie: Google copied and admitted it copied. This isn't a cleanroom implementation.
For more details on why they found copyrightability, see the discussion starting on p.17. There's a lot in there, and having a discussion about it (or at least a proper one) requires people to look at the actual text.
Edit: Made the formatting better.
If this holds up, every programming language that was not originally produced under a suitable open source license will need to be dropped because all software written in those languages will be infringing an API copyright.
The case goes into discussing this directly, indicating that Google's cleanroom efforts give it evidence that it proceeded in good faith, but good faith alone does not intrinsically absolve you of admitted copying (which is an infringement) that's found elsewhere.
Now if you did an ACTUAL cleanroom and didn't take chunks that you thought were trivial, the argument to demonstrate infringement in the first place would need to be localized on the SSO level, where single-option design choices would again be exempted through the doctrine of merger, and we'd have a much different set of considerations.
As per the jury award to Oracle, you'll be happy to know they're going back to first instance to have another trial to determine the quantum. Maybe Oracle will get $1 again despite winning due precisely to the mitigating factors you've raised. Who knows. This case wasn't about that. It was about fair use.
There are two things in play here and they are NOT the same. The one the whole world cares about is weather APIs are copyrightable. Weather Google is guilty of copying part of Oracles implementation of the code behind the API is not relevant to API copyrightability. If you can't see the distinction you don't understand software or the real core of the case and should stop trolling. If you do see the distinction, why do you keep insisting on conflating the two?
Whether or not the supreme court agrees with the IPRs affirmed in this series of cases is another question entirely, but until that comes down, nothing has really changed.
It's hard to overstate how difficult it is to separate what you want the law to be from what it is. This is why people do so badly at representing themselves, and even lawyers have this problem.
Oh well. I hope some people found it useful.
I read page 17 and it is clearly written by someone that doesn't understand software. My non-lawyer reading of the justification implies that polymorphism violates copyright law - which is an even deeper issue. This would destroy all modern software development. Yikes! I am now even more confused. Even Oracle would disagree with this point of view.
In your text, you are now making the argument that Google did not have a cleanroom implementation. This is a different discussion that should be on it's own thread.
Regarding your polymorphism point, you've got the cause and effect swapped. The LACK of polymorphism was the basis for Alsup saying APIs are uncopyrightable. Because there's only one way to do something, the words and the function are linked, and copyright does not protect function, ergo copyright wouldn't protect the word either. This line of reasoning doesn't flow in reverse - Polymorphism doesn't indicate that a work is copyrighted or subject to restrictions upon use, or that various safe harbour provisions/copyright exceptions do not apply.
2) There's no need for a separate discussion. I'm not making the argument; it's literally admitted by Google in the context of this case that they straight up copied chunks of code.
> We further find that the district court erred in focusing its merger analysis on the options available to Google at the time of copying. It is well-established that copyrightability and the scope of protectable activity are to be evaluated at the time of creation, not at the time of infringement.
The error is subtle, but crucial: when Sun/Oracle released their API, they gave rise to a new functionality: interoperability with whatever they just created. If someone wants to write a drop-in replacement, they have to read the declarations, copy them all, then write a conforming implementation.
Changing the order of those declarations would still be possible, but one would still have to start from the original files anyway. Assuming those were readable to begin with, any transformation would be a purely legal trick, so they can say "I didn't really copied it".
As far as I can tell the court either ignored or dismissed this interoperability issue. Agreeing with Oracle that Google could have renamed its function names, even though those names are part of the API they were conforming to (the `max` function is obviously part of the standard library), is ignorant at best, dishonest at worst.
I am not arguing that Google has an interoperability exemption. I am arguing that the API is not (or should not be) copyrightable in the first place, because any attempt at interoperability would instantly void it.
I would also argue that interoperability with the training of masses of developers is a thing. Saying it is not only strengthens the relevant network effects, which is bad for competition. I doubt that last one would hold up in court, but still. See how C++ became popular. Not quite compatible with C, but close enough to spur adoption.
And overall, it is very weird that Google's intent matters here. They should be judged on what they did, and maybe whether they did it on purpose. Why they did it should be no more than extenuating or aggravating circumstances.
The court specifically deals with this assertion and does not come to the conclusion that you do.
>And overall, it is very weird that Google's intent matters here.
No it isn't. This case was about Fair use, and intention matters for some of the test elements. A bunch of people think this case is about API copywritability. They're four years too late to complain.
I know. I did read their lengthy conclusion.
> A bunch of people think this case is about API copywritability.
Too bad it isn't. That ruling from 4 years ago is insane. And I recall people did complain at the time, did they not?
I just reread the document, and I think you are referring to page 36. I think Oracle is trying to get around the Sega vs Nintendo case which does protect the API. I believe the Oracle argument is tenuous since you still need to import the Math class to use it. If you don't import it, they you have to specify the Math class every time you use the method. Even if Oracle is correct, then it would mean the Math class is not in the API, it is an implementation detail. Then we are back to the discussion if an open source implementation is legitimate replacement for clean room implementation. Then this becomes an open source discussion and not an API discussion.
The whole Oracle discussion of API seems circular and might be a red herring. The real discussion is at the very end where Oracle says that Google only implemented a subset of the API and not the full API.
One function, rangechececk.
Which premises are you referring to? I am not a lawyer, but I am a programmer, and what you just paraphrased sounded obviously true (at least when "the functionality" means "replacing the old system", a.k.a. interoperability).
Which part of "let's find a small group of the least qualified people to decide on billion dollar cases" ever seemed like a good idea to anyone?
Then there's the judge, who has a background in law but NOT in programming.
Then there's the lawyers, who have a background in both (assuming the expensive lawyers G and O can afford), as well as years and years of practice influencing the decisions of small groups of laymen.
I don't understand how this is never brought up with regard to API copyright. API's are software, software has been deemed copyright-able, thus, API's are copyright-able.
Am I going crazy or missing something?
This is, essentially, the fallacy of division.
Interfaces to software have been rules non-copyrightable despite being an element of software and thr software itself being copyrightable; this is particularly the case for user interfaces (Lotus v. Borland is the landmark case here.)
There have been many comments from the legal community, including, IIRC, judges that sit on the 9th Circuit, that the Federal Circuit (which heard this case on appeal because of the patent claims in it) has misapplied binding Ninth Circuit precedent (which is supposed to control on coypright issues in this case because this came up from a district court under the 9th Circuit, and copyright law is not one of the areas where the Federal Circuit has exclusive subject matter jurisdiction.)
And yeah, I guess that IBM could start suing everybody... this whole situation is so ridiculous.
Other forms of structured metadata use cross-party?
Or IBM could realize if they start doing that, it might show the insanity of the current law, and result in the law changing back to what it was and should be, API's not copyrightable.
(And yes, I know: The overwhelming majority of the work was a clean room implementation, but not all. In retrospect, this was an unfortunate mistake by Google.)
What if I named my function 015342342(String 123949)? How does that change anything?
Without endorsement, there is definitely a line between text in which one can be "creative" and numbers in copyright law as written.
The problem here isn't the line between creative and non-creative, the problem here is the introduction of copyright, a concept created for expressive works, into a field that consists of functional works. It should not be a surprise to anyone, not even lawyers, that this isn't going to "just work". The surprise to me is that it has taken this long for this foundational clash to start emerging at a big scale.
The choice of call name in an API are arbitrary, the reuse of those names to interface with that API is not a creative copy it's a technical requirement.
If I make a toothed belt to fit a pair of gears, that's not an artistic expression no matter the the tooth pitch is an exact duplicate of that on the gears. If the gear is purple and orange spots, in a distinctive pattern, and I make my belt the same pattern then that's a copyright issue.
If the API calls were like "thisIsTheSummerOfOurDiscoTents(banana)" - such that the names are sufficient to be individual works of art, and weren't following a technical function, then perhaps you have an argument that the API is a work of literature, or otherwise an artistic creation.
It just sounds like a wrong decision was previously made and should now be overturned.
The real key point is in the second half, though. Arguing over whether or not a particular micro-decision is "creative" is the entirely wrong track to be taking when we're discussing something that is functional, that performs some real task in a way that a movie or song simply does not. Why would we expect standards based on "creativity" to apply to that in any sensible way?
It's impossible for a collection of letters to be creative but for that collection of letters when represented numerically to be no longer creative. If I make up some BS for how there's a correspondence between these symbols and other symbols (1=alpha, 2=bravo, ...; or 1=sandwich, 2=wellington, ...) - then 1383() is just sandwichBiscuitAppleBiscuit(). Then it's clear the creative aspects of the program, API, or whatever, don't lie in the specific choice of tokens.
Would a judge agree that providing a dictionary/key that says an arbitrary name for each number (easy to do programmatically) makes a program creative that otherwise wouldn't be. It's clearly ridiculous. Not least because it would mean that duplicating a work that was compressed, or represented in binary, would then no longer be a tort, because apparently numerical representation would rule out a work from being creative.
Seems pretty straightforward.
So a Google employee was donating code to Oracle, and they sued them for it. It's absolutely shameful behaviour.
They literally admit to having copied it.
All the hypotheticals trying to find the end of cleanroom dev in this case keep missing the point: They didn't do cleanroom dev. They admit to not having done it. Their defenses aren't organized around them doing it. So what's the furor about?
Alsup: "I have done, and still do, a significant amount of programming in other languages. I've written blocks of code like rangeCheck a hundred times before. I could do it, you could do it. The idea that someone would copy that when they could do it themselves just as fast, it was an accident. There's no way you could say that was speeding them along to the marketplace. You're one of the best lawyers in America, how could you even make that kind of argument?"
David Boies (counsel for Oracle): "I want to come back to rangeCheck."
Alsup: "rangeCheck! All it does is make sure the numbers you're inputting are within a range, and gives them some sort of exceptional treatment. That witness, when he said a high school student could do it—"
Probably about the absurdity of being hit with potentially astronomical penalties for "copying" 9 lines of trivial code that's barely worth hitting ctrl-c for.
Obviously, common sense is - as always - distant from the pedantic nature of law and laywers, but just about anyone sane is gonna look at this and go "well that's just stupid".
IIRC, the literal copying of code was something for which the parties stipulated to $0 in damages; the potential liability is about copying the API, not the one trivial 9-line function.
Obviously that sounds pretty crazy, but if it's true, it would at least be an approach that I could understand.
Uhhh. No. Just no. I don't think you understand the meaning of "clean room" in this context. In this context, clean room means that the person in the room is untainted by any copyrighted information full stop.
The problem I'm describing is that in this case the kind of thing you'd typically want to write in that documentation is exactly the signatures of methods, which would amount to copying the copyrighted material and would taint the whole clean room. I'm trying to think of a way you could even do clean room engineering if the signatures of methods are copyright information. The reimplement from usage examples is the only thing I can come up with.
These $9 Billion dollars will look great on Oracles bottom line. The mega-billions in possible lost trade and efficiency make me think this ruling gets reversed with a vengeance.
There's nothing legally stopping you from doing the same; Disney does not own these stories.
This is ridiculous. An argument supporting a fair use defense in a copyright proceeding is a very different thing from a patentability argument. Google is not trying to claim patent rights to its Android API.
So don't think of Java being in Android. The Android toolchain uses Java, but the Android runtime is not a Java runtime.
For one thing, this makes it different from Amazon using an Oracle Java runtime. But the total set of differences is deep and significant.
Google had little interest in expanding the reach of the Java platform—they wanted to attract Java developers to their “looks like Java, but isn’t” platform while benefiting from the years of work that went into the JDK.
I don’t necessarily think APIs should be copyrightable, but since they now are as a matter of law, I’m leaning towards Google’s actions constituting infringement.
While this may hit on our sense of fairness, it has no relation to legal "fair use". My political parody show owes no profits to the subjects of my derision, IoW.
The same could have been said of Visual J++ but Sun killed that opportunity before it could really flourish.
-) Are Networking protocols copywritable ?
-) Are REST APIs copywritable ?
I am not sure if this is the way open source world should work.
I don’t necessarily agree with the decision but I can see where they’re coming from.
Edit: And particularly there's tons of case law that this stuff isn't copyrightable, see Sony v. Bleem, where a company literally wrote an emulator of a PS1, and courts said that was fine. Even to straight up sell as a competing product, and for running on competitors machines.
Edit2: And the otherwise shitty DMCA even has explicit exemptions for software interoperability purposes.
There is a bit of a "intellectual property" slippy slope going on here. Whether or not something is useful or non-trivial is inconsequential.
You could design an engine to have an artistic structure. What you couldn't then do is stop anyone copying the functional parts of the engine and leaving out the purely artistic elements.
PS: I am not a lawyer. Above piece of knowledge is coming just from what I read, perhaps on HN during the previous ruling on the case.
At the time, though, I don't believe it was open source and OpenJDK originated as a cleanroom rewrite of it, and has since been integrated.
> The Java API is a collection of “pre-written Java
source code programs for common and more advanced
I'm not too familiar with Java, but I believe they are mistaking APIs for libraries there. Did Google infringe on the libraries or the actual API?
Like did Google actually infringe on what Oracle calls the "Java API" (but is actually a library), and are we all talking past each other when discussing "API copyrightability" when Google may have actually been found of infringing a library?
I think the CAFC may be just as confused about which one is which and on which it's ruling.
Additionally, how would this relate to the Java programming language being "free" and why would Google infringe on anything if it was free?
I don't know the actual details of Sun's licensing, though, but even from what Oracle is claiming now, it seems that Oracle's case is quite weak, and I don't see how its license specifically banned Google from doing whatever they think they did.
Finally, the CAFC's pro-patent rulings are almost always overturned by the Supreme Court, and if I believe they wouldn't even have gotten this case if Oracle hadn't also accused Oracle initially of patent infringement. If Oracle had only accused Google of copyright infringement, I think some other court would have gotten the case, maybe a court with less of a bad record in understanding IP law (going by Supreme Court's rulings at least). It's just a shame that Obama's pro-IP laws lawyers got in the way and convinced the Supreme Court to reject the case.
Supposedly, both. They made an API with the same structure, names, etc. They also copied a nine-line function called rangeCheck.
"Free" is not a legal license. Google would have to start from the OpenJDK implementation, and be subject to its license, which they didn't.
Was this a mistake or did Oracle actually accuse themselves of infringing their own patents?
IANAL, but doesn't this contradict case law elsewhere?
Bzzt. You really need to make a citation for that statement. Without it there is no point in considering your other 3. The case law around that issue is exactly Oracle vs Google.
That Federal Circuit decision has not been reviewed by the Supreme Court, does not establish binding precedent outside the context of this case, and is widely seen by outsiders as being in error for not matching what the Ninth Circuit would have ruled.
It is incorrect to make any categorical statement that APIs are copyrightable. That question is still pending. All that's been settled is that this one case is being conducted under the assumption that APIs are copyrightable, until such time as the Supreme Court decides to review this issue.
The Supreme Court need not weigh in in order to make the law what it is.
The 2018 decision is not the same as the 2014 decision or the 2012 decision.
1) AMD chips aren't free and the usage is totally for a commercial purpose.
2) ISAs are an API.
3) While the implementation is probably clean-room, it's still a total copy of the ISA structure and function call/return value.
4) Intel has been directly harmed by AMD competition, which results in them needing to be price competitive in certain markets.
EDIT: Added the second reference and cleaned up thoughts. Included note regarded license as well as pay.
This gets into really critical concerns around APIs. If commercial product A sucks and I'm in a shop where we made our own drop in replacement that implement's A's APIs .. then we open source that drop-in replacement and put it on Github so anyone can use it, are we no violating their copyright just by implementing their API?
This can set dangerous prescient when it comes to interoperability and reverse engineering.
SQL standard and the respective certifications have to be payed for.
Before that, Oracle ripped off Chamberlin and Boyce's work. Which they should be able to do, because APIs shouldn't be copyright-able.
At least Oracle payed something back, unlike Google, ripped off Sun and then stepped on it on their dying breath.
If it wasn't for Oracle we would be stuck porting Java 6 to other languages.
That is certainly an issue if you reverse engineer anything. Google went out of their way to NOT reverse engineer it.
The issue is can a public API be copyrighted. That is the scary issue.
That is not how copyright works. You almost got it right with your comment "anyone reading the manuals to understand the BIOS was tainted and couldn't write a competitor."
Copyright protects against copying. It does not protect against independent development. Hence the clean room set up.
To the extent that it's relevant here, that appears to be untrue. This hinges on the fact that with an API, you have to match it exactly, and there's no reasonable way to argue that someone could sit down and do a clean room implementation of the Java APIs that perfectly matched all 3000 classes and all the public interfaces of all those classes.
You can do a clean room implementation of the Java Platform, but you can't do a clean room design of the Java APIs. The whole point you're trying to solve is to make something that's compatible with Java, and that requires knowing the Java APIs, i.e., it's not a clean room. If we extrapolate that back to IBM and clones, as long as the clone makers must come up with the same external API as the IBM BIOS, then this court would say that IBM absolutely could use copyright law to prohibit clones, because the clones would have to have copied the APIs -- not the code, but the names and types used in the APIs themselves, and IBM holds copyright to those names.
Coypright covers derivative works of copyright-protected works, as well as literal copies. If APIs are copyrightable, there is a very good case to be made that a reimplementation of an API implementation (not an API that serves a similar function, but an actual reimplementation) is a derivative work of the API itself.
The Copyright Act, however, is; if APIs are protected by copyright, than making a derivative work of an API is an exclusive right of the copyright owner.
Which is a key reason why there is widespread concern about the CAFCs ruling on API copyright. (OTOH, Google losing on fair use at the CAFC makes it more likely that the API copyright issue gets to the Supreme Court in this case rather than a later one, so it might be a good thing for resolving that concern.)
No literal copying of text is required for something to be a derivative work. Transforming a work implementing an API into documentation describing the API would produce a derivative work of that API, if the API is protected by copyright. Transforming that documentation of the API into another implementation of that API would also produce another derived work of the API.
I disagree. However, I am not aware of any caselaw on this point. It is an interesting logical twist you have added, but I fail to see how it must be that way in view of the fact that copyright explicitly allows clean-room type reverse engineering.
The legal status of reverse engineering is not at all clear-cut. There are many nuances depending on the circumstances, and much of it is determined by case law rather than statute. There's no clear basis for you to make claims about how this new class of copyright (on APIs) will interact with reverse engineering. However, it is much simpler to state that if APIs are a work subject to copyright, then it must be possible to make derivative works of APIs that are also subject to copyright absent any explicit exception or fair use right.
You have not at all established this point. What makes you think that the API of a reverse engineered implementation is not tainted by the copyright of the original API? It's clear that clean room reverse engineering produces an independent implementation, but it also seems clear that such a technique does not prevent the structure, sequence and organization of the original API from strongly influencing the structure, sequence and organization of the reimplementation's API.
Silly Example: you design a phone book containing all the names and phone numbers of everyone in the city. To the extent that any subjective decisions were made in the design, it is a copyrighted work. I design a phone book. If I copy yours, it is a violation of your copyright. If I collate the underlying information and then make my own phone book it is not copying, even if it looks exactly the same.
If I take your picture of a building and copy that's a copyright violation.
If I take a picture of a building from the exact same angle you did, that's not a copyright violation.
Similarly, if you copy the definitions of all functions/methods/classes/etc from one API, nobody will believe you independently came up with it.
So "add(a, b) returning the sum of the two" is probably not copyrightable by itself, but a whole namespace full of functions might be.
That's not how it works for copyright. Beyond that, how do you independently arrive at an API that you are trying to have an exact copy of? Photography is not programming. I cannot run a bunch of words through a program until it prints out some book I want and then say I arrived at it independently. You honestly need to read the copyright laws as you are missing some information.
[edit: the original premise of all this thread is IBM didn't try to copyright the BIOS API]
Your original post was about IBM not being able to copyright the PC Bios. Which is simply not true in any way shape or form. https://www.allaboutcircuits.com/news/how-compaqs-clone-comp...
Relevant portion "But one problem remained with their IBM-compatible machine. How would they recreate the IBM BIOS without breaching the copyright? Why did they need a compatible BIOS (basic input output system)? . . . Some companies, such as Eagle, copied the BIOS either by reading the IBM manual to understand which interrupt codes did what or by simply copying the hard-coded ROM chip that holds the BIOS. This breached the copyright that IBM had over the BIOS and so did not take IBM long to prevent such companies from selling more of those machines. However, there is a way to bypass these types of copyrights with the use of a “clean room”."
The API of a BIOS is not the whole thing! It just specifies the interface by which the BIOS can be called by the OS.
For a crude analogy, consider the interface specification that most modern cars adhere to: there will be a steering wheel with a certain shape, size, and position relative to the driver's seat; there will be two or three pedals, with the accelerator on the right, the brake pedal to its left, and the clutch pedal, if present, to the left of the brake; etc. etc. None of this tells you whether the car runs on gasoline, diesel, CNG, or electricity, or whether the motor is in the back or the front, how many cylinders it has, etc. — all these are implementation details that do not usually affect the interface much.
The implementation of the BIOS — the code that actually performs its various functions — is clearly copyrightable, and always has been. But the API is just the specification of what those functions are and how they can be invoked. Imagine if one car manufacturer had been able to copyright the steering wheel and pedal arrangement that we're all familiar with!
No, no, no, that is not what I said. I was talking about the API of the BIOS. The BIOS source code is, of course, copyrightable. That is why IBM was able to make it very hard for people to copy it until folks did a proper clean room. Why would I go into detail about the counter measure if it was not copyrightable? That makes no sense.
What "different way" are we talking about here? IBM asserted their copyright quite forcefully against Eagle and shut them down.
Eagle directly copied the source code of the BIOS, they were not sued for copying the API.
Blackbox testing -> API Specification -> Implementation
Copy API Specification -> Implementaton
In the first case, you will come up with something similar but ultimately original. In the second case you are blatantly copying someone else's work.
Copying APIs is strictly necessary for interoperability. Allowing APIs to be copyrightable encourages monopolies by legally prohibiting newcomers' software from being compatible with their competition.
It'd be like if Microsoft were allowed to sue Google Docs and Libreoffice for making their software able to open Word documents. (Except in this case the "documents" are source code.)
How can it "capture" the calls without knowing what it's capturing? It has to know that there's a windows API function called "CreateWindowEx" that takes particular parameters, otherwise how could it possibly "translate" it? And the fact that CreateWindowEx takes particular parameters is precisely the API.
Of course the implementation of that API will be different in WINE, just as Google's implementations of the Java API are different from Sun's (aside from the 9-line rangeCheck which is a separate issue). In fact it would be fair to describe what Android does as "capture the API calls and transform them into a different Dalvik API call that ends up performing the same function".
So... you're saying it needs to implement the Windows API? If APIs are copyrightable, then that's a violation of Microsoft's copyright. You've included a copy of Windows' API in WINE.
To make that more concrete: if Oracle's string concatenation function is called `String.concat` and Google's is called `String.append`, then code which calls `String.concat` isn't going to work with Google's implementation, and code which calls `String.append` isn't going to work with Oracle's implementation. It doesn't matter if the APIs are "similar" or not, they have to be _identical_ in order for code written for one system to be interoperable with the other.
So, barring this case being both heard and affirmed by the Supreme Court, this interpretation of copyright law, while potentially decisive in the outcome of the present case, isn't, substantially, law, so much as an idea of what the law might be.
But, because Oracle v. Google case had an ancillary patent question in an earlier appeal, the appeals are instead going to the Court of Appeals for the Federal Circuit. This court is really only supposed to answer patent questions. The CAFC can't set precedent in these matters, and overwhelmingly defers to the district courts' precedent. Bot for some reason they have chose to ignore all of that this time and make their own, fresh (and super weak) precedent that only applies to copyright cases with patent questions.
That is just not true. According to the well-pleaded complaint rule, the Federal Circuit had jurisdiction.
The Federal Circuit has the right to hear and decide this particular case, but they do not have the right to establish binding precedent on lower courts or other appeals courts in matters of copyright law. This has been explained to you repeatedly.
Not all types of reverse engineering is considered copying. See IBM PC BIOS cases.
That's one of the most important issues with this ruling; it effectively bans even black box reimplementations.
That is why telephone books and others things are not copyrightable. They are lists of facts. API's are lists of facts, a functional specification for use.
There are consequences if this stands and it will not be to our benefit as programmers, developers, designers, etc. Nor will it be to the benefit of society as a whole.
In other words, if it does feature the same selection and arrangement, it is a violation of copyright.
Your statement that APIs are not copyrightable is not true as well.
What if I create my own smart home server that can be a drop in replacement for some commercial product using just what I've gather from their public API? Is that infringement, when the underlying implementation is entirely my own?
It depends on how you create your server. If you go to their website, look at their API, and start typing identical code then that's not ok. It's pretty clearly copying. If you do black box testing and then write your own API that's fine. It's clearly not copying but a new original work.
Take this as an example: https://docs.us-phoenix-1.oraclecloud.com/Content/Object/Tas...
Here is an example of a potential copyright infringer copying the API for another competing service. I'd hope they acquired a license for it, otherwise.
Using this as an analogy for the API would mean anything that was part of the technical implementation could be copied but inconsequential or artistic parts couldn't. This has been interpreted to mean that the actual code is "creative", so you'd have the framework of the code but not the non-essential parts that could be different and still allow the API to work.
In Roman Law there is the principle "In dubio pro reo" (https://en.wikipedia.org/wiki/In_dubio_pro_reo), which means that if there are doubts whether the culprit is guilty or not, he/she may not be convicted.
In the US, it at least seems that something similar does, in so far as we require a unanimous vote by the jury to convict someone in a criminal trial, but a simple majority for a civil.
That's not quite right - Google adopted Apache Harmony (an open source project, and if you want to attribute an organisation responsible for Harmony's success - such as it was - it would be IBM). Apache Harmony would have been 100% API compatible with Java had Sun (and later Oracle) not refused to provide the Technology Compatibility Kit (TCK).
The Android runtimes (Dalvik, then ART) never had compatibility with Java bytecode, instead, Android build-tools use(d) Java bytecode as an intermediate pipeline step; the ultimate executable had 0% compatibility with the Java runtime.
There's no doubt that if it is established that APIs are subject to copyright, then someone owns copyright to the C standard library APIs. It's not old enough for copyright to have expired, and nobody has ever released the APIs to the public domain (because nobody ever seriously thought that such a thing would be necessary). Establishing API copyright as a real thing without broad fair use rights would throw into doubt the copyright ownership of a large portion of all software ever written.
People shouldn't have to write shit code cause judges are tech illiterate.
"In a closely watched 2014 decision in the dispute, the Federal Circuit said the APIs were entitled to copyright protection."
Apparently, header files (which were subject to much discussion in the case) are still a legal minefield.
Aicas, PTG, IBM, MicroEJ, ....
Big difference with Google?
They play by the rules.
Or they will be sued out of existence. Google? probably not. IBM tried Harmony play along with Apache but backed away after legal threats.
Try to sell a device that comunicates with a e.g. BTS station without buying their licenses, to see how it ends.
For the rest there is the 3GPP patent platform.
Most of the patents are the result of a lot of research and cleverness. Some of the patents are the equivalent of looking in another drawer if the first one did not contain what you are looking in.
It's a bit arbitrary that an API isn't protected when some bullshit patents are. There is clearly much thought in some of the java APIs.
I'd like to see shorter protection time for patents thought, especially in areas where there are very low investment costs, like software development.
OpenJDK is GPL. If you comply with GPL, no. This is the problem, Google copied and did not comply with the GPL. Their other option was to pay Oracle/Sun a licensing fee for a commercial license. This is exactly the business model many GPL users follow. Ruling otherwise makes this business model invalid, but it also creates a double standard.
Consider a programming language where you program in types, like Idris. The case is more obvious here. The API is a program. The same applies to Java too, but that seems less obvious. The API is the program that produces compiler output.
I thought the OpenJDK people needed certain concessions to release their VM under the GPL?
GPL users charge money for a license on the implementation, not on the API. Or do you know any charging a license for the API itself?
It was Google's misfortune that through a quirk of the system the case wound up in the Federal Circuit, which has a history of creatively ignoring precedent to fashion new precedent that increases its own importance. (Which is how we have patents on all sorts of crap that the Supreme Court has ruled that we shouldn't.) And it was good lawyering on Oracle's part to throw every possible argument at the case, including the copyright arguments that they knew they should have lost.
That's it. The VMs on the market at the time we're absolutely terrible for phones. John Carmack was commenting on how JavaME gave you worse performance than an original IBM PC, and HotSpot's strategies absolutely destroy battery life.
There are OEMs selling commercial JDKs for embedded use, with their own VM, JIT and AOT compiler variations, and library extensions.
Contrary to Google, they always played by the rules.
Java still exists today thanks Oracle, not Google.
They also offer customized versions fine tuned for their deployment scenarios, doing Java bytecode to either native (AOT) or their own proprietary bytecode format when generating the firmware image.
Or for example, IBM Java running on IBM i mainframe, where Java bytecodes used to be translated into the TIMI bytecodes, just like any other IBM i application.
Firmware does not change during runtime.
Nokia and Sony-Ericsson flagship phones were quite good.
So one either swims or joins the graveyard of companies that tried to fight it.
I'd argue that it's next to impossible. OSes are a commodity now. Even Microsoft is coming around to that idea.
> tech unlawfully taken from other companies.
All of the previous caselaw said that this was fine.
When you create your own USB cable, or electric plug, you aren't copying the API specs, you're implementing them.
I'm not worried about Google in the least, I am however concerned about the precedent this sets.
Licensing costs can scale according to the customers business size and revenue. What is more concerning is that this may create precedent that API specs are copyrightable -- to the degree they are worth billions in damages.
I think some people in this thread are minimizing the issue because they don't like Google but I think it's naive and short-sighted. It's not about Google or Oracle, it's about copyrighting APIs.
It's legal precedential value is limited, because it was a copyright decision in the Court of Appeals for the Federal Circuit (CAFC).
The general principle for a precedent is that precedent for court X is set by the appeals court that hears appeals from X, and the appeals court that hears appeals from that appeals court, and so on.
So, for example, the district courts in the 9th Circuit (which covers the west coast tech companies) gets precedent from the Court of Appeals for the 9th Circuit, and from the Supreme Court. In particular, this is the appeals path for copyright cases.
The appeals path changes for a few special subjects. Patent appeals from all of the Federal district courts, for example, go to CAFC. So, in matters of patents, a district court in the 9th district would look to CAFC for patent precedent, not the 9th circuit appeals court.
Oracle sued Google for both copyright infringement and patent infringement. The parties were OK enough with the outcome of the patent part of the case that no one appealed that, but the copyright decision was appealed.
You might expect that this means the appeal would go to the appeals court for the 9th Circuit, because only copyright issues were being appealed, but that's not how it works. Where the appeal goes is decided by what was at issue in the original case, not by what was at issue in the appeal.
The rule is that if a case has both a special subject, such as patents, that points to CAFC, and other subjects, such as copyright, that point to the appeals court for the circuit the district court is in, the appeal goes to CAFC. CAFC handles the whole thing.
When CAFC gets a subject that normally does not come to them, but got there because it was attached to a case that also had a subject that does go to them, the rule is that they are supposed to follow the precedent of the appeals court for the circuit the district court is in. They don't set precedent in that district.
For example, if two companies sued over copyright in the 9th Circuit, with no other issues involved that would deflect the normal appeals path away from the 9th circuit's appeals court, the district could would look to that appeals court and the Supreme Court for precedent. CAFC opinions on copyright would at most be interesting opinions it might look to for insight, just like it might look to courts of appeals for other circuits, but only it's own circuit's appeals court and the Supreme Court would be precedent it has to actually follow.
PS: I think we'd be better off if CAFC just got the patent appeals. If a case has both copyright and patent issues, send patent appeals issues to CAFC and copyright appeals issues to the circuit's appeals court. At the trial level we merge cases that would normally be in different courts into one (e.g., if a case has both state and federal issues, it goes to federal court and the federal court handles the state issues).
That makes sense at trial court level because they involve examining witnesses, examining experts, and similar. If different issues were heard in different courts, many of those witnesses would have to go to multiple courts. It could be a major hardship on them. You'd want to hold them all in the same area, at near the same time, to minimize travel. That could be hard to schedule.
Appeals courts, on the other hand, just work off the transcript from the trial. The only people needed there are the lawyers arguing the case. The lawyers for appeals are usually more specialized than trial lawyers, so there are quite possibly different lawyers handling the different issues in the appeal.
It would not be much of a hardship, if any, for different issues to go to different appeals courts, as long as a little care is taken with scheduling.
Heck, it might even be less of a hardship. Imagine you are a copyright appeals lawyer in the 9th Circuit. Normally all your appeals court appearances are in the 9th Circuit, and you have a few cases going on there. Then some stupid mixed patent/copyright case comes along, and no you've got a case on the other side of the country to deal with.
The original license for Java said you can create your own implementation just fine, so long as it was compatible with the others (or at least the benchmark one). By not doing that, Google violated the license.
"It's a bit odd to claim that somebody stole your API while at the same time complaining that they did not steal it well enough."
Not if what you want to avoid is people Embracing your API, Extending it with new special bits, and Extinguishing your version.
And specifically, use of a J2SE implementation in mobile devices may have been forbidden.
I'm not sure I follow - Google believed they didn't need a license, just like everyone who used Linux despite SCO offering to license Linux to them.
If Google needed a license, and Sun had not offered one, it would not make a difference; Google would still be liable for infringement. There's no abandonware or compulsory license provision in the laws for this. The question is whether Google needed a license, not whether Sun was willing to offer one and for what price.
Whether or not they knew that someone would come along and sue them doesn't matter if the lawsuit is unjust.
Even if Oracle is correct, and even if APIs can be copyrighted, Google's intent still doesn't matter. The only thing that matters is whether or not they infringed.
I consider this to be a form of victim blaming. You should argue the case on its own merits, not posit that Google was "asking for it."
Google had a responsibility to their shareholders and customers to do the right thing regardless of how stupid they thought the law was, and their attitude here was pretty arrogant. (To avoid beating up on Google, I should point out believing they could take on anything helped them do some work that changed the world for the better.)
Since the attitudes of parties involved in a case are often considered in judging the case, I think it's entirely fair to bring them up.
If you then turned around and argued that the hacker somehow wasn't in the wrong because of the victim's attitude, yes it would be.
Victim blaming has nothing to do with someone's responsibility to others, and everything to do with taking a conversation about whether an attack is justified, and shifting that conversation to instead suggest "well, dumb people like that deserve to be taken advantage of."
Oracle contested that Google infringed their IP. "They should have known we were gonna sue them as soon as we smelled the money" is not compelling evidence for that claim.
Much in the same way, saying "Johny should have turned off his attitude and just given us the money" is not compelling justification for a mob hit.
What's being stated here is that Google's infringement improved Oracle's market position - that fact doesn't bar Oracle from pursuing their remedy against infringement. If you steal my software for making phones chirp every time you get a tweet and widely distribute it to the point that it becomes the de-facto standard in the tweet notification market, it doesn't magically mean that I don't get to come after you for stealing my tweet tech.
Here's the decision itself. Estopple is mentioned 0 times. This isn't because Google's legal team is braindead. It's because the argument that the Google's use was authorized following them walking away mid-licensing negotiation is insane. Google's defense is based on fair use.
Here's some old HN discussion on it: https://news.ycombinator.com/item?id=2806771
In real estate, you can own a plot of land and provide others with permissions associated with the land; maybe they're allowed to walk over a path that runs through your land. That permission is not equivalent to all possible permissions associated with the land - although maybe some ancillary ones are implied in. Maybe people are allowed to bike over the path too, but they certainly aren't allowed to dump broken washing machines there.
Similarly, in IP I can grant you a set of rights related to my product without giving you ALL rights related to my product.
If I hand you a bag of balls and say you're allowed to play with the purple and green balls inside, I haven't given you permission to play with any of the other balls.
In this case, the different balls are the different dismemberments/rights related to Java.
 Jonathan Schwartz: "The strategy was, we agree on these open APIs, then we compete on implementations."
Nothing was stolen (i.e. Oracle still has the software), it was an infringement of copyright (and perhaps patents).
So although you're correct that Google did this themselves, the alternative was fraught with problems also. Better to fight it and lose than implicitly accept the idea and pay.
This was all happening in the context of C#, which people seem to be forgetting about too. It's important to remember that the whole idea of copyrightable API was done under the argument that it was important to protect API integrity from forks. MS provided evidence of a desire to do this (as has Google to some extent since then) but then introduced C# instead.
Anyway, this is a mess because copyrightable API is ridiculous, but Google should have been more careful with cleanroom implementations.
Google probably had to use their implementation and J2ME was and still is a piece of shit.
Yes it was about cost, but the cost would have been far greater then the licensing price ;-)