Well, yes and no. The jury ruled that Google violated copyright if and only if APIs are copyrightable. They have not ruled whether or not Google had fair use (which is kind of fuzzy to me--how do you violate the law when you have fair use, or could potentially have fair use?).
The judge has to determine if APIs can be copyrightable now. If the jury had ruled that Google wasn't guilty of copyright infringement of the API, then the judge wouldn't have to make that decision.
It is poorly stated in the write up. Fair use is what they call an Affirmative defense, you have to have done it before you can claim fair use as a mitigating circumstance to avoid punishment. It is kind of like using self defense as a reason to beat a murder charge. You have to claim to have killed the person before you can claim to have done it in self defense.
If your usage is covered by fair use, it doesn't require the approval of the rights holder and can't constitute a copyright violation.
But this is arguing semantics, the problematic word being copyright violation. It goes against my intuition (and I suspect I'm not alone) to say that a violation of copyright has taken place when a usage is legal within the rules instituted by copyright.
I suppose people who associate a different set of semantics with copyright violation would have to talk about legal copyright violation versus illegal copyright violation. To me, the former is contradicting and the latter is a tautology.
> But this is arguing semantics, the problematic word being copyright violation. It goes against my intuition (and I suspect I'm not alone) to say that a violation of copyright has taken place when a usage is legal within the rules instituted by copyright.
Yes semantics, but in law there is an established convention with reference to these particular semantics. The term "infringement" refers to, in this context, whether or not there was copying. Fair use is a defense, wherein even if infringement is established, liability is not established if the copying isn't the sort that should establish liability.
> I suppose people who associate a different set of semantics with copyright violation would have to talk about legal copyright violation versus illegal copyright violation. To me, the former is contradicting and the latter is a tautology.
That's because the headline using terminology imprecisely. It is using "ruled" when it means "found" (juries find facts, judges make rulings); it is using "violation" when it means "infringement."
It is a semantic argument, but I'm pretty sure US law treats fair use as a limit on copyright rather than as an excused copyright violation.
rgoddard seems to be implying that all copying of a copyrighted work is illegal, which simply isn't the case. His claim is analogous to claiming that driving at any speed is in violation of the speed limit, but if you driving under the posted limit you can use that as a defense in court.
You're mostly right, kind of. I'm going to try and explain this, but it's not particularly easy. The confusion comes from both the nature of the "fair use" defense and the collision of legal vocabulary and common language.
Fair use is an affirmative defense, which means that even if a violation occurred in a strict sense, that violation is excusable. It's not an "I didn't do it" argument, it's an "I shouldn't be punished because..." argument. Self-defense is a textbook example of an affirmative defense -- strictly speaking, I would violate the law by intentionally injuring or killing someone, but I can argue that I was defending myself.
The question of an affirmative defense is not even relevant until there is a prima facie case showing violation, and often the fact-finder (jury or, in a bench trial, the judge) will actually find all the facts necessary for a judgement that infringement occurred before addressing the question of fair use, partly because the answers to many questions of fact for infringement are relevant to whether "fair use" holds.
In the end, you do end up with a judgement that no infringement occurred, but along the way, you often end up with findings of fact that do spell out a "violation".
The instructions themselves look like they'd be tens of pages of text printed out. (And note that the people deciding this are specifically chosen for their lack of background in the technologies involved --- IIRC, two candidate jurors with software experience were excused, for that very reason.)
That's a bit unfair. Oracle objected to two candidate jurors with software experience, yes, but at least not officially "for that very reason".
One candidate was an HP employee and Oracle objected on the ground that Oracle has a separate suit with HP. When asked of opinions about patents, the other candidate said he has his strong opinion about patents. I mean, we all do... But I think objections were justified.
Don't you agree that if you think software patents should be abolished, you should not be a juror in a software patent case?
I don't think that it's the court's job to ignore laws that are unpopular. In that way, anyone who admits to having a strong opinion, which may preclude them from objectively interpreting and applying the laws that do exist to the case at hand, should not be on the jury. We're not polling the population/jury "should these actions should be illegal?" but instead asking "given the laws today, are these actions illegal?"
That seems to be mostly a semantic argument, and I think your proposed usage is not a very common one. Fair use covers things like journalistic coverage of copyrighted works, use of copyrighted works in education, and criticism (e.g. literary criticism). I don't consider those things infringements on copyright. Rather, I consider fair use to be a limitation on copyright. As far as I know, that's also how US law treats fair use.
To address the issue of fair use and if APIs can be copyrightable:
1. Judge Alsup told Google's counsel that Google had to address the Johnson Controls decision with a view to the Java APIs.
On October 3, 1989, the Ninth Circuit held the following in Johnson Controls v. Phoenix Control Systems:
"A computer program is made up of several different components, including the source and object code, the structure, sequence and/or organization of the program, the user interface, and the function, or purpose, of the program. Whether a particular component of a program is protected by a copyright depends on whether it qualifies as an 'expression' of an idea, rather than the idea itself."
On to paragraph 13:
"Here, the district court found that the structure, sequence and organization of the JC-5000S was expression, and thus subject to protection. [...] This issue will no doubt be revisited at trial, but at this stage of the proceedings we cannot say that the district court clearly erred."
2. the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:
the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
Funny Mueller conveniently excises the text that does not support the case of, his employer, Oracle.
13. Here, the district court found that the structure, sequence and organization of the JC-5000S was expression, and thus subject to protection. The JC-5000S is a very sophisticated program, and each individual application is customized to the needs of the purchaser. This practice of adaptation is one indication that there may be room for individualized expression in the accomplishment of common functions. The district court's finding of expression is also supported by the special master's report. Regarding one particular point type, the master indicated that, although it is common for process control software packages to include provisions for collecting historical data, and using various integration and averaging schemes to do so, it is unusual to implement this function as a point type, as Johnson did. This finding also supports the view that some discretion and opportunity for creativity exist in the structure, and that the structure of the JC-5000S is expression, rather than an idea in itself. This issue will no doubt be revisited at trial, but at this stage of the proceedings we cannot say that the district court clearly erred.
Copying APIs leaves no room for individualized expression.
Don't be surprised Mueller misled you. You should expect it from him.
Mueller was correct only because the jury had no other option on question 1A.
The judge instructed the jury that APIs were copyrightable. He did this to prevent the certain appeal of his decision on APIs from forcing another jury trial which would rehash the same testimony.
Mueller was "correct" because he didn't have to make a risky prediction on the jury trial.
In fact, Mueller has been wrong, repeatedly. He predicted Google would settle. He expected the case to be resolved months ago. He gives that as a reason for hiding his employment with Oracle, a blatant conflict of interest while he offered expert commentary on the case.
He predicted the jury would find against google's fair use defense for question 1B, then blames the judge for not issuing the correct instructions.
He's basically a huge anti-google marketing campaign.
Ask him how that Linux GPL infringement issue that was going to ruin the android marketplace has been going? Nowhere you say?
Here's some context, but I regret having to link to his garbage blog to provide it:
I am curious that if apis are solidly found to not be copyrightable, would this have any impact on gpl3's 'anti tivo' exclusions and/or gpl vs lgpl linking exceptions?
It would seem to me that providing an api compatible 'shim' layer would then not fall under copyright if apis are not copyrightable. Although linking is clearly, in my mind, the creation of a derived work.
My understanding of the many facets of copyright law is not very extensive though, so enlightenment is definitely
would this have any impact on gpl3's 'anti tivo'
When taking a GPL v3 implementation and distribute it, there is no license that grants you that right, other then the GPL v3 itself.
You are basically mixing here 2 different things: the implementation and the interface. GPL v3 affects the former, while APIs not being copyright-able affects the later.
It would seem to me that providing an api compatible
'shim' layer ...
As long as your software is distributed along with the GPL v3 module, then the copyright of the GPL v3 module applies and the only way to distribute that module is to respect the GPL v3 clauses, because again, no other license or law gives you the right to distribute that GPL v3 module, other than the GPL v3 license itself.
What you can do is to allow the user to install the GPL v3 module by himself. This works as long as the GPL v3 module is replaceable. For instance, say that your software uses an SQL Database and that the preferred RDBMS recommended to users is a GPL v3 licensed database. You could even provide scripts that automatically install/configure that database. This wouldn't mean that your software has to be GPL v3 compatible, because the database itself is replaceable and it is also not distributed directly with your software.
Another example would be for instance the usage of GNU Readline ... your software could use whatever Readline implementation it finds on the user's system through dynamic linking, and as long as it works with other implementations, then there is no hard dependency and you've got no problems.
However in the case of Tivoization, then direct distribution of the GPL v3 package is involved. And you simply cannot do that, no matter what API layer you've got between that package and your software.
Although linking is clearly, in my mind, the creation of a derived work.
Not necessarily. Linking, either static or dynamic, is an artifact of the way we build software, being basically just a protocol through which different software components can communicate.
The context is very important here. Let's say that MongoDB would be GPL v3 licensed (with no exceptions), there wouldn't be any other implementations and your software couldn't function without it. Because Mongo's APIs are unique (not a standard, no third-party implementations), would this mean that your software is derived from MongoDB? Yes it would, simply because without MongoDB it couldn't function.
On the other hand, if your software relied on MySQL, would your software have to be GPL v2 compliant? No it wouldn't, because you could just replace it ... however, in the case of MySQL the actual client library that gets linked to your software is also GPL v2 and has its own unique API that's relevant to MySQL only, so in such a case you have to find a way to dynamically link to that client, such that your software can continue to function even if the MySQL client library isn't installed.
But even so, this is about "usage", not "distribution". The distinction is important here, because if you want to distribute MySQL alongside your software as a single package, then your software must be GPL v2 compliant, no doubt about it.
Btw, I'm not a lawyer, this is just my understanding of how the GPL works.
'' Because Mongo's APIs are unique (not a standard, no third-party implementations), would this mean that your software is derived from MongoDB? Yes it would, simply because without MongoDB it couldn't function. ''
According to the recent EU ruling your program is derived from MongoDB's API. But to prevent 'monopolization of ideas', MongoDB APIs are not under copyright so your software is not a derived work. In addition the ruling voids license clauses with conditions on how you run the software past normal use, so clauses like 'except you can't clone the API' or 'can only link with approved software' or 'have to publish the signing key' are unenforceable.
Since it's not a derived work and GPL linking restrictions are not enforceable, you simply accept the GPL and distribute the .so and source for that code along with your closed-source program and use it. You still have to publish your changes to the GPL code itself, like LGPL, but that's all.
This is the flip side of the API-copyrightability coin.
This has been discussed on and off over the years. Even if APIs are not copyrightable, it has been argued that using an API whose only implementation is GPL creates a derivative work. Clean-room shim header files sound like an admission of bad faith but they may be legally defensible.
anti-google or not he correctly predicted that the jury would find that Android infringed on Oracle's copyright and that is my point. whether I agree with the jury or not or if I hate or Mueller is not the issue.
Saying that someone is an anti-google marketing campaign, based on them being paid by google's opposition, is an accusation that may or may not be true, but is hardly a personal insult and is not a fallacial argument as it pertains directly to the matter at hand. The actual truth of a statement is not the requirement for it being considered a logical fallacy.
As to calling his blog garbage, his blog is the method by which he is communicating his views and so it is a judgement of quality of his writing, not of him directly.
 also a personal insult, such as calling someone a complete and utter muppet, can be a perfectly reasonable point to make in argument as long as it is particularly relevant. Which judging from your commentary so far, is something you may wish to keep in mind.
Just out of curiosity, how is that different than, say, Rob Weir's (IBM employee) opinion taken pretty much as fact by everyone on the ODF/OOXML conflict, or for that matter why do we accept Pamela Jones' analysis and opinions if she is so clearly biased against Microsoft?
Facts are facts and opinions are opinions. I don't see a reason to confuse them at all.
However, Mueller's opinion has been considered to diverge from reality in very specific ways, always favoring whoever is paying for it at the time and always being presented as an unbiased expert opinion.
Having an opinion doesn't itself discount an opinion. Being biased or unreliable is reason to discount an opinion. It's important to remember that those are separate concepts.
Bias has nothing to do with how strongly you believe something to be true, or how hard you try to spread that opinion. Bias is nothing more than the extent to which your opinion differs from reality. If you consistently and vehemently insist that the earth is round and not flat, you aren't biased, you're right.
And regardless of bias, you have to also take into account the specific evidence and reasoning provided with an assertion. PJ in particular is pretty good about explaining her predictions, so you can't dismiss her solely due to her bias - you also have to find fault with her reasoning.
I tend to agree with you about jury trials, but having the “real” decisions made by specialist judges in the Federal Circuit has dangers too. Many legal scholars believe that the trend toward allowing more software and business method patents in the 1980s and 1990s occurred because of Federal Circuit judges who were too embedded in the patent bar, and that it was allowed to continue without enough review because with all patent appeals coming out of one circuit, there were no circuit splits (disagreements between circuit courts of appeal), which is the usual way cases reach the US Supreme Court.
In any case it would be difficult for the trial judge or the Federal Circuit to ignore jury decisions on factual questions like the ones that were decided here, unless the result was egregiously wrong. Legal questions like whether APIs are copyrightable will almost certainly be reviewed on appeal.
[added] The dangers of judges who are too specialized was actually recognized when the Federal Circuit was set up, so the court was also given jurisdiction over a few other areas, such as appeals from the Court of Federal Claims, to prevent it from being overly specialized. I haven’t seen recent figures, but I do believe that the docket is dominated by patent cases.
It's not just that Federal Circuit judges are embedded in the patent bar, but also that judges are quite intellectual and academic and it is in vogue among academic circles to treat intellectual property like real property. Real property has a very strong right of exclusion (you can't be on my land no matter what you're doing on it, whether it hurts me or not or benefits society or not).
Economists classify goods as being either rivalrous or non-rivalrous, and either excludable or non-excludable.
The ownership of IP is, in a sense, a private good (excludable and rivalrous), just like a car. Take patents - can buy and sell them, they're hard to steal, and only one person can have it.
However, the right to use (not own) IP is not a private good. While the original copyright or patent may be unique (therefore rivalrous) and easy to defend (thus excludable), expressions of it are not.
Non-excludable, non-rivalrous goods (the right to use IP) are a little harder to reason about.
Cars are excludable and rivalrous property based on the fact they are physical objects that are of a size easy to possess and it is very hard in physical terms for them to not be so.
Patents, on the other hand, are excludable and rivalrous only in the tautological sense. They are defined within law as excludable and rivalrous, so therefore they are excludable and rivalrous.
Patents could be redefined in numerous ways that are not excludable and rivalrous, such as including anyone else who can give reasonable proof that they came up with the idea at the same time or independently. Also, it would not be that great a stretch to limit their transferability, so that they cannot be treated as a normal asset.
The cases aren't decided by jury trial. It's not like law and order where the jury returns "guilty/not guilty." The jury makes factual findings used by the judge to issue a ruling.
What this article refers to (using poor, imprecise language in the headline) is the jury's finding that Google copied, in the literal sense of the term, the Java API's. This is something the jury is totally qualified to decide. They can see the snippets of code put forth as evidence. They might not understand how it works, but they can see whether they are similar or not.
From here, the judge will decide whether API's are copyrightable. This is the real show. We know Google copied the API, the real question in this trial is whether that API is protectable under copyright law. The judge will answer this question.
After that, the jury will answer whether Google's copying is eligible for the fair use defense. That is to say, even if they did copy, and even if API's are protectable, was Google's use nonetheless of a kind that qualifies as "fair use." This decision doesn't really involve "nerd esoterica."
Imagine the same statement being made about medical malpractice.
At the end of the day, I'm OK with "random" juries making these decisions. There is quite a bit of apparatus in place to prevent major error, and the law can always be changed (obviously it's not easy to do so, but it's possbile) in response to an undesirable decision.
Arbitration is terrible. Arbitrators have a huge incentive to be biased in favor of the party that will bring them repeat business (the insurance company). Arbitration vastly prejudices the little guy in these disputes.
I think the jury did just fine. They have punted on the hard problem, but I think the rest of their determinations are quite fair. This doesn't look like the case that will impeach the jury system to me.
"After the partial copyright verdict was read, Judge Alsup launched right into the patent phase without even giving a break. Right now, the jury is watching a video about patents and patent lawsuits produced by the Federal Judicial Center, which is commonly shown to patent juries. Court will probably adjourn after opening statements today, and witnesses will begin testifying tomorrow, possibly including a repeat show by Jonathan Schwartz, the ex-Sun CEO. The patent phase is expected to be concluded in as little as one week. "
The Jury isn't actually deciding all that much here, especially considering their non-answer to the Fair Use question. The Judge gave them generous instructions, including the stipulation that APIs are covered by copyright, in order to try and limit the potential for a mistrial. He still has to make the ruling on whether APIs(Or some definition of an APIs SSO...) are indeed covered by copyright, which is the crux of the case.
It doesn't sound like he'll be making that ruling until at least midway through this month.
Edit: I'm not sure mistrial is precisely what I mean. Maybe just re-trial? Any clarification would be appreciated.
Almost any trial that goes to jury is just as over 12 random peoples heads. Anything with forensics, anything that has expert witness. Even just understanding byzantine laws in the US is over everyone's heads. As most of this trial has more to do with copyright law than anything technological.
It's democracy. The purpose of a jury trial isn't to get the most accurate result, it's to give the people direct control over the government. It's just as true, if not more true, to say that elections are a terrible way of fairly selecting lawmakers and presidents.
The tradeoff is between a possibly marginal improvement in accuracy between juries and trained judges and the risk of the entire system becoming unaccountable and systemically unjust. Since the system is already designed to optimize for false acquittals, it's not an entirely bad idea.
> If some law/issue can't be understood by 12 random people and multi-million dollar legal teams [...]
Let me rephrase that.
> If some issue cannot be understood by 12 random people heavily influenced by two multi-million dollar legal teams [...]
And now imagine "issue" being anything you're not intimately familiar with. There are many things in this world that I fail to understand, and probably never will. Law on this level is just as complicated as any other advanced topic, and the effect of a judgement on society can be profound.
I totally don't get the whole jury thing in cases as technical/complex as this (and by that I don't mean the computer science aspect, but the law aspect).
The jury doesn't really understand the subtleties of the law either. They're given a lot of hand-holding, and asked pointed questions about what they determine to be factually true. The judge explains to them the legal implications for their factual findings.
Juries were concocted to make judgments on fundamental moral issues. That's why "12 random strangers" works -- the law is supposed to reflect the common moral standpoint of the society, so selecting any twelve adults of sound mind from the community generally gives you that.
Where deep technical knowledge is required to understand the implications of a verdict, I think that the "community" should be defined as the community whose domain is primarily effected (in this case, computer scientists/software engineers). This doesn't sound too horrible to me.
Perhaps the fact that we need specialized juries should be a signal that our law is too specialized. Most things that should be illegal can be described rather succinctly when it gets down to it, and I think "no way twelve random people could comprehend" could be useful bright barrier line for "Maybe we're losing a little bit of control here..."
This is still a simple moral dilemma. Did ones work was copied or not?
it's less complex than economy when someone have to be judged for debt. it's less complex than forensic medicine when one have to be judged for murder.
stop acting like it's a secret circle only you were able to enter.
the million dollar legal teams will bring in experts, those experts will explain what's their expert opinion on the fact. the 12 average joes will decide, and life will go on. If you think million dollar teams can just pay experts to say anything, the other team's expert will point that out to that other team and other legal mechanism will punish the one lying.
now, if it were Google vs John Doe, then i'd be sorry for poor john.
I agree that basic copyright claims can be reasonably decided by a random jury. Questions like "was this book copied unfairly?" are totally within bounds because everyone is familiar with the objects and context in play. But I think it's a stretch to expect any twelve people pulled off the street to be able to comprehend the concept of "an API" and the other technical things swirling around this case. Maybe this jury was pretty smart, but I know no matter how many times this concept is explained to my grandma, for example, she will not really understand what you were talking about.
I think the fact that you have two opposing teams of "experts" makes it even more difficult for the jury; Oracle surely brings people in that talk about APIs in more concrete terms so that they can strengthen their copyright claim, and Google surely brings in people that say, "No, an API is just a set of concepts that trigger magic in some other code", and I think that normal people would just be more confused after hearing this.
Wouldn't it be better to simply recognize this is a case that requires deep technical knowledge, find software people who do not have a bias one way or the other toward Google/Oracle, and put them on the jury, where they will understand the extreme consequences of ruling that APIs represent copyright infringement, instead of just sitting twelve random people in front of two or three short videos and expecting them to grasp that the outcome of the case here will effect and set precedent as to whether clean-room implementations anywhere are legitimate, and what that means? If this precedent was set way back when it may even have been construed to apply to implementations of protocols like HTTP; imagine the consequences if some early player like Urbana-Champaign was given the copyright to the "HTTP API" and no one except them was allowed to write a browser that used HTTP (without licensure). Also, I hope no one here depends on WINE.
Do we really expect any set of twelve random people to understand this is the kind of decision to which they are contributing?
The CoffeeScript syntax is nicely readable, but IMO the C-like syntax is far more easily 'scannable'.
Quickly scanning over the C-like syntax I can more easily notice the ! and the && than I can make out the 'not' and the 'and' while scanning the more natural-language-like CoffeeScript because of the clear separation between ! and && and the alphanumerics commonly used in variable names. IMO the 'and' and 'not' keywords kind of get lost in the noise of all the other characters.
YMMV here. I've been programming in C-like languages for quite a long time so maybe that's rewired my brain in a way that doesn't hold for people who don't program in C-like languages.
> If Oracle wins what does that mean for java and it's developers.
That's an important question, but the issues are even bigger. This isn't just about Java. If the judge finds that APIs are copyrightable, it affects a lot more.
For example, Microsoft has a promise not to sue over its patents on .NET. But if APIs are copyrightable, is Mono in infringement of Microsoft's copyright? Safety from patents is suddenly not enough.
Another example, Android uses Linux kernel headers, the API needed to access the kernel. The wide assumption has always been they are not copyrightable, so you can implement userspace apps that are not GPL. But if APIs are copyrightable, that might be less clear.
The bottom line is that this judge is going to decide, by himself, whether APIs are copyrightable. It's going to have a huge impact on our industry if he says "yes". It's scary to think about the amount of power he currently holds.
"What is copyrightable is creative expression," said Julie Samuels, an attorney with the Electronic Freedom Foundation "What is not [copyrightable] is functional information. The programming language is not. You can't copyright a language. It's what you make of that language."
This seems to assume that creation of a (computer programming) language does not involve creative expression. (I understand that writing a compiler for this language certainly does.) This may have been right in possibly older times when languages were not explicitly designed; does not sound right anymore.
Also, would you call sizeof(A) to be a part of the language (it is built into C/C++), or is it more like an API?
I'm not so sure it is a bad initial result. It looks more neutral to me.
Given the judge's instructions on SSO copyright and APIs and the realities of re-implementing an API, I don't see how a jury could have reasonably concluded there was no potentially infringing copying. If so, the real question in play was the fair use analysis and that's where the jury deadlocked. Not as good as Google would have liked, but not as bad as it could have been, either.
I think you're right. If you assume that APIs are subject to copyright, then seems clear that implementing a new system that copies only the API of another existing system would be a violation of the copyright on the API. But it seems the judge still has to decide whether APIs are in fact copyrightable, and if he decides that they are not, then I suppose this verdict would be irrelevant.