[HN Gopher] Google's copying of the Java SE API was fair use [pdf]
___________________________________________________________________
Google's copying of the Java SE API was fair use [pdf]
Author : pdoconnell
Score : 3068 points
Date : 2021-04-05 14:04 UTC (8 hours ago)
(HTM) web link (www.supremecourt.gov)
(TXT) w3m dump (www.supremecourt.gov)
| game_the0ry wrote:
| 6-2 majority decision, which is pretty one-sided and really good
| news for open source.
|
| It's worth noting - the two dissenting justices were Clarence and
| Alito, who are both baby boomers over the age of 70, both old
| school conservatives. Of other two conservative justices,
| Kavanaugh and Gorsuch (who are also on the early end of Gen X),
| both sided with Google.[1] I was not expecting that. I thought
| they would have aggressive views with respect to the possibility
| of copyright infringement.
|
| Funny moment during the case - Clarence compared Google copying
| Oracle to a football team stealing an opponent's playbook. That's
| a really bad analogy and demonstrates a lack of understanding in
| open source software.
|
| Oh, and before I forget - f*ck you, Larry Ellison.
|
| [1] Justice Barrett came in too late to participate in the
| decision, I wonder where she would have sided.
| ccleve wrote:
| I like the outcome from a public policy perspective. The policy
| the court has imposed is good for the industry. But let's make no
| mistake -- this is legislating from the bench.
|
| The wholesale expropriation of an API is _not_ the same thing as
| taking a small snippet of a copyrighted work for analysis,
| commentary, criticism, or scholarship. It is core the value of
| the work.
|
| Indeed, it's the most important part, because it defines the
| functionality of the product. It is what the customer sees and
| interacts with. It is the means by which the customer gets value.
| You can completely swap out the backend behind the API and the
| customer will still get value. Change the API and the value goes
| away.
|
| From a legal perspective, this decision is 100% wrong. The plain
| language of the law makes that clear.
|
| What should have happened here is that Congress should have
| passed an amendment to copyright law allowing for fair use of an
| API. They should have done so after a free and full debate, with
| due consideration to all economic consequences.
|
| It is not for our black-robed, un-elected overlords to make this
| decision.
| mrkstu wrote:
| Let's take the 'on a computer' portion out of it.
|
| If I specify that my company takes orders that only have
| certain header columns and must have specific format in certain
| fields on the bill of goods, is that /specification/ (not the
| full text I wrote, but the facts of the specification itself)
| copyrightable? Why? I don't see that the abstract facts of a
| specification of interoperability should receive any kind of
| copyright.
| ccleve wrote:
| As a matter of public policy, I agree that the specification
| should not receive protection, but under the law as written
| by Congress, it does. Thomas's dissent is correct.
|
| My comment is about _process_ , not _policy_.
| monocasa wrote:
| Under the law, they do not receive protection.
|
| See Baker v. Selden, which despite it's age is still good
| law.
|
| https://en.wikipedia.org/wiki/Baker_v._Selden
| Bluecobra wrote:
| I am glad Oracle didn't win. It seems to me that they bought Sun
| just to sue Google. I'm still bitter over for how they destroyed
| Sun... it's a shame that they didn't have a better steward.
| The_rationalist wrote:
| Oracle is making a lot of innovation in openjdk and graalvm.
| They have much better engineers than if e.g Google had bought
| sun.
| Jonnax wrote:
| Ah yes. The company that forbids people from benchmarking
| their database must be a bastion of good engineering.
| The_rationalist wrote:
| This does not generalize to the openjdk team. Google team
| characteristics tends to generalize more.
| kasperni wrote:
| Sun drove themself into the ground. And at least in the Java
| world they have been excellent stewards. The platform is moving
| forward again.
| _the_inflator wrote:
| Ok, so what is Oracle's next move then?
| dkjaudyeqooe wrote:
| This is the end of the road, unless they can get Congress to
| change the law, of course. But they have 0% chance of that.
| rhacker wrote:
| I don't quite know how to say this but, is it possible to be
| happy about the outcome but have a feeling that it was probably
| legally not quite straightforward. I mean everyone (or most) on
| here is probably pleased with the outcome, but extremely biased?
|
| Also if Sun was still around would people be rooting for them
| instead of Google? Oracle isn't exactly easy to love.
|
| I'm not looking for pound keyboard replies from people that
| disagree, I'm just curious if there are others that have the same
| feeling.
| ve55 wrote:
| I had forgotten about this for quite awhile, given the pace at
| which these cases operate at.
|
| The great sigh of relief I was unexpectedly gifted this morning
| upon seeing this at #1 was a nice surprise. Very important
| precedent, good job.
| curt15 wrote:
| "(e) The fact that computer programs are primarily functional
| makes it difficult to apply traditional copyright concepts in
| that technological world."
|
| So the opinion effectively preserves the status quo in the
| software industry while sidestepping the question of API
| copyrightability.
| Finnucane wrote:
| Was the question of API copyrightability even raised before the
| court? I'd guess Google didn't think it was in their interest
| to go that far.
| andrewnicolalde wrote:
| It was, but SCOTUS declined to rule on it.
| mindcrime wrote:
| True, but it's such a strong precedent in favor of copying
| API's being "fair use" that it at least partly moots the more
| general question of "are API's copyrightable in the first
| place." I think this was a good decision all in all. AIUI, the
| SCOTUS try to limit the scope of their decisions as much as
| possible, to avoid over-generalization.
| Spivak wrote:
| I don't think it moots the point at all.
|
| * Google's API copying can't be fair use if they weren't
| copyrightable in the first place.
|
| * If you do copy an API because of it's beauty and not for
| either interoperability with software or interoperability
| with developers then it seems that you would run afoul of
| copyright.
| bzbarsky wrote:
| That... somehow seems fair? If what you are copying is the
| artistic expression and not the functionality, that seems
| like exactly the sort of thing copyright is supposed to be
| about.
| mindcrime wrote:
| _If you do copy an API because of it's beauty and not for
| either interoperability with software or interoperability
| with developers then it seems that you would run afoul of
| copyright._
|
| That's why I said it _partly_ moots the issue, not
| _completely_. Yes, you could conceivably still run afoul of
| copyright in some cases, but at first blush, this seems
| like a precedent that will make it very unlikely that that
| would happen. I guess time will tell, but that 's my
| initial perception. IANAL, of course.
| CarelessExpert wrote:
| > If you do copy an API because of it's beauty and not
| for either interoperability with developers then it seems
| that you would run afoul of copyright.
|
| So don't do that?
|
| Why would you copy an API save to be inoperable?
|
| If it's just to duplicate someone else's design, I think
| I'm okay with that potentially being a copyright
| violation.
|
| What downside am I missing?
| curt15 wrote:
| Of course fair use is moot if API cannot be copyrighted in
| the first place. But the court seems to say that this case
| would be fair use even if API is copyrighted.
|
| "We shall assume, but purely for argument's sake, that the
| entire Sun Java API falls within the definition of that
| which can be copy-righted. We shall ask instead whether
| Google's use of part of that API was a "fair use." Unlike
| the Federal Circuit, we conclude that it was"
| rossdavidh wrote:
| So not only a good decision, but one that was decided 6-2, with
| the younger judges (left and right) among those 6. It looks like
| it could be a solid majority on the side of sanity on this
| particular issue for a long time (knock on wood).
| protomyth wrote:
| I would imagine if the ruling went the other way, IBM might want
| to talk to all the BIOS companies. Luckily, that didn't happen.
| philjohn wrote:
| and Amazon could talk to Oracle who "borrwed" the S3 API for
| their cloud storage.
| derekdb wrote:
| S3 explicitly changed their license to allow copying the S3
| API. I forget the year, ~2010? I was working an S3 at the
| time and it was a strongly debated decision.
|
| Google's initial launch of their cloud storage copied not
| just the S3 API, but also the error codes.
| winwhiz wrote:
| I think the point is that if this case had gone the other
| way this kind of open licensing would happen a lot less.
| Companies would be obliged to enforce API copyright to
| protect themselves from loss of copyright (share holder
| value)
| oblio wrote:
| IBM would probably want to talk to 99% of computing companies
| out there, not just BIOS companies :-)
| bryanlarsen wrote:
| Including Oracle, since their copying of IBM's SQL API is
| what the whole company is based on.
| jcranmer wrote:
| And Oracle is now copying AWS's API to try to enter the
| cloud market. (This was explicitly brought up in one of the
| amici briefs).
| jpdb wrote:
| Are you referring to the S3 API? I believe the S3 API is
| explicitly licensed under Apache.
|
| Disclaimer: I was previously employed by Amazon and
| currently Google. Opinions are my own, I'm not a lawyer,
| etc.
| gpm wrote:
| IIRC the API is probably licensed under the Apache
| license (by virtue of client libraries being licensed,
| not intentionally) but Oracle isn't complying with the
| requirements of the license, so that would have been more
| or less irrelevant.
| jcranmer wrote:
| And OpenJDK is GPLv2 with a classpath exception. So why
| is Google unable to use Java's API here while Oracle able
| to use Amazon's API?
| iam-TJ wrote:
| Google used the Apache Harmony version as the basis for
| Android (Until Nougat).
|
| Some of the argument was over whether the Apache licence
| inherited by Google from Harmony was valid, or whether
| Harmony itself was in breach of copyright (and therefore
| had no valid licence Google could use).
|
| Once the courts decided APIs are copyrightable the
| argument switched to whether Google's was Fair-Use, with
| a jury saying it was, federal appeals court saying no,
| and thus it ended up at the Supreme court.
|
| Here's a Groklaw [0] copy of an early (April 2012) Oracle
| argument asking for Jury instructions around the licence
| topic that explains it well: "As made
| clear by Apache itself, Apache never had a license from
| Sun or Oracle for Harmony. Apache had no rights to Java
| technology that it could give to Google"
|
| [0] http://groklaw.net/pdf3/OraGoogle-959.pdf
| tephra wrote:
| IIRC (this case has been going on for way to long) they
| didn't cope the GPLed version of the code (oracle/sun had
| another proprietary version).
| jcranmer wrote:
| So the original case had claims against copying more of
| the original Sun JVM code than just the API--the entire
| furor over "rangeCheck" was a key part of the original
| case. By the first appeal, this was reduced to a de
| minimis claim of copyright and Oracle no longer pursued
| claims of copyright on anything but the API.
|
| My understanding is that all of the APIs in question are
| shared between the (now-Oracle) JVM and the OpenJDK
| implementation. (Indeed, I think the actual
| implementation of the Java code in question is the same
| between the closed and open source versions, it's only
| the JVM itself that differs.)
| kaba0 wrote:
| Because it wasn't GPLv2 at the time, and Sun explicitly
| disallowed mobile use?
| fX0rObfoMN4 wrote:
| I thought this case is from back when Android was using
| Apache Harmony?
| mtgx wrote:
| Including Oracle...
|
| Good thing the SC saved Oracle from its own stupidity.
| jariel wrote:
| Now Google, Microsoft and Oracle can go ahead and copy little
| startup's APIs, or even Stripe?
|
| Using Stripe?
|
| You're literally one-click away from our new Google Payments?
|
| Just change this URL, and you're good?
|
| I'm not as keen about the outcome as others.
|
| It's good for open source in a way but I'm wary of big cos just
| wiping out smaller one's.
|
| Also - does anyone with insight have something to say about open
| source APIs being copied, to get around copyleft?
|
| Could GPL'd software now be 're-implemented' without concern?
| throwaway8581 wrote:
| The interesting question is how broad this fair use ruling is.
| According to the Supreme Court's other fair use cases, fair use
| is highly fact-specific and therefore case-specific.
|
| What kinds of actions and motivations by Google could have led to
| a determination that the use was _not_ fair?
|
| Or is Embrace/Extend/Extinguish as practiced by the big tech
| companies now _always_ protected by fair use?
| jcranmer wrote:
| The centerpoint of the analysis is recognizing that declaring
| code is different from implementing code. From this key
| distinction, it pretty much follows that most copying of
| declaring code that does not also copy implementing code is
| inevitably fair use, so it can effectively be argued that
| copying APIs is inherently fair use. Kind of like how we say
| that commentary or parody is inherently fair use--it's always
| case-specific, but there are broad categories where you're
| almost always going to agree that it's fair use.
| kemitchell wrote:
| That's exactly the question.
|
| We see the majority trying to preserve flexibility in fair use
| throughout, even going so far as to head off arguments that
| this decision affects others:
|
| > We do not say that these questions are always relevant to the
| application of fair use, not even in the world of computer
| programs. Nor do we say that these questions are the only
| questions a court might ask.
|
| > The fact that computer programs are primarily functional
| makes it difficult to apply traditional copyright concepts in
| that technological world. ... In doing so here, we have not
| changed the nature of those concepts. We do not overturn or
| modify our earlier cases involving fair use. ... Rather, we
| here recognize that applications of a copyright doctrine such
| as fair use has long proved a cooperative effort of
| Legislatures and courts, and that Congress, in our view,
| intended that it so continue.
|
| We see Thomas leading this question in dissent:
|
| > Because the majority's reasoning would undermine copyright
| protection for so many products long understood to be
| protected, I understand the majority's holding as a good-for-
| declaring-code-only precedent.
|
| Fair use is a mishmash of vague, impressionistic factors and a
| long list of cases from which to argue by analogy. It's not
| sharp-lines law. It's finger painting.
|
| Which is why lawyers so rarely recommend that people rely on
| fair use in any really meaningful way, outside areas where
| there have been a lot of court decisions, or where strong
| industry norms have evolved between repeat players.
| jblz wrote:
| From the dissent: "In the 1990s, Oracle created a programming
| language called Java..."
|
| Sun Microsystems was acquired in 2010... I guess I should give
| Thomas the benefit of the doubt that he intended the statement to
| apply to Oracle's owned IP & not be a historical account of the
| language's creation and creators, but this rubbed me the wrong
| way.
| Sindisil wrote:
| Also from the first page of the dissent: "A different company,
| Sun, created the library. But because Oracle later purchased
| Sun, for simplicity I refer to both companies as Oracle."
| BoDlulu wrote:
| I mean, Android was acquired by Google as well.
| jakewalker wrote:
| He addresses this in footnote 1 on the same page, though. "A
| different company, Sun, created the library. But because Oracle
| later purchased Sun, for simplicity I refer to both companies
| as Oracle."
| jblz wrote:
| Thanks for pointing that out -- I skipped over that first
| footnote. On my screen, it's on the previous page from the
| quote I posted (for what it's worth).
| [deleted]
| zzleeper wrote:
| Not surprised at all the Thomas and Alito are in that dissent..
| danans wrote:
| Why is it that you aren't surprised?
| dkjaudyeqooe wrote:
| Because they tend to take extreme or simplistic positions
| in opposition to any sort of nuanced or interpretive view
| of the law.
|
| In this case it's "Hey, it's Oracle's code, end of story."
| winwhiz wrote:
| Is intellectual surprise caused by anything other than
| bias?
|
| I noticed this when I started rereading the dissent with
| a s/Oracle/Sun Microsystems/g. I felt a bit more swayed
| when I started to recollect all my fond Sun memories:
| blogs, hobbyist customer experience, etc. and stopped
| thinking about my glowing hatred of Oracle.
|
| The dissent does seem nuanced to me even though I am
| quick to dismiss it based on the premise and my superior
| technical knowledge and maybe a bit of my own biases that
| I can't quite completely ignore.
| flumpcakes wrote:
| I was under the impression that a dissent has to be written,
| even if they all agree in the majority opinion/ruling?
| KerrickStaley wrote:
| No, a dissent means that one or more of the judges
| disagreed with the majority ruling.
| thaumasiotes wrote:
| No; in order to write a dissent, you have to disagree with
| the result.
|
| If you write a separate opinion while voting with the
| majority, that's a "concurrence", not a dissent, and those
| aren't mandatory either.
| gjsman-1000 wrote:
| You also forget that a justice might feel more comfortable
| with ruling in opposition so that he/she can write the
| dissent, but if his/her vote was a swing vote, the justice
| might have second thoughts about that. It's easy to vote in
| opposition when you know it doesn't matter - and then, hey,
| you get to write the position for the losing side.
| thaumasiotes wrote:
| > You also forget that a justice might feel more
| comfortable with ruling in opposition so that he/she can
| write the dissent, but if his/her vote was a swing vote,
| the justice might have second thoughts about that.
|
| This doesn't make any sense. Justices vote in the
| majority while disagreeing with part or all of the
| majority opinion all the time. The mechanism for
| complaining about the majority reasoning is the same in
| either case: you write a separate opinion detailing your
| personal analysis of the case. That opinion is called a
| "dissent" if you voted against the majority and a
| "concurrence" if you voted with the majority.
|
| There is no concept of "the dissent". Any dissenting
| justice is free to write one; it is routine for one case
| to have multiple dissents.
| [deleted]
| [deleted]
| jimbob45 wrote:
| Does this mean Fuchsia/Zircon are effectively dead? I got the
| impression Google was keeping them as a backup in case this
| lawsuit went badly for them.
| monocasa wrote:
| Android has already switched to GPLed OpenJDK for the Java
| classes in question. This was about the Android versions from
| before that switch over.
| Sephr wrote:
| Does this mean that frameworks like WINE are now illegal if
| Microsoft so desires?
|
| How about special-cased ad blocker integrations that stub ad
| vendor APIs? I feel like that would also run afoul of these
| increased copyright protections.
| imadethis wrote:
| Page 44 has Thomas's dissent with Alito concurring. Worth a read
| as well, even just to see the opposing arguments.
| shirleyquirk wrote:
| Designing an API is a creative work not unlike that of an
| architect, I see the merit in the dissent pointing out, e.g
| "there may have been only one way for Google to copy the lines
| of declaring code, but there were innumerable ways for Oracle
| to write them. Certainly, Apple and Microsoft managed to create
| their own declaring code."
| joelkevinjones wrote:
| I'm not sure what Thomas was referring to. What does "create
| their own declaring code" mean? Did they do some kind of
| white room implementation where they typed in the contents of
| a javadoc web site? Did they modify the name of parameters?
| petters wrote:
| Swift and C#?
| [deleted]
| _Microft wrote:
| Is this a final judgement? Is it over now?
| thedevelopnik wrote:
| Yes. There is no appellate court above the Supreme Court. The
| only way things could change now is if Congress/President
| passed a new law, and I don't think API copyrights are near the
| top of the list.
| thaumasiotes wrote:
| > There is no appellate court above the Supreme Court.
|
| That is true.
|
| > The only way things could change now is if
| Congress/President passed a new law
|
| That isn't true at all; the Supreme Court is free to change
| the law by itself. Someone could sue over the same question
| and get a different result overruling this one.
| dkjaudyeqooe wrote:
| They are free to change their mind, but are very reticent
| to do so. What compelling reason would there be to revisit
| this that could possibly change the outcome?
| bryanlarsen wrote:
| Suing over the same question wouldn't get very far. The
| best approach would be suing over a closely related
| question. See coomoo728's analogy to Roe v. Wade:
| https://news.ycombinator.com/item?id=26699621
| Der_Einzige wrote:
| And this has happened hundreds of times already
|
| https://en.wikipedia.org/wiki/List_of_overruled_United_Stat
| e...
| nikanj wrote:
| Time for Oracle to pull out the Sun patent portfolio and start
| over.
| dkjaudyeqooe wrote:
| Yeah, before it expires.
| jcranmer wrote:
| IIRC, they lost on the patent portfolio at the very
| beginning. That's how the case went to CAFC instead of the
| Ninth Circuit--there was a patent argument in the original
| appeal, which was dropped several years ago. And having
| already lost on the patent question in the past, any future
| case can point back to that decision and say "can't
| relitigate this point."
| D13Fd wrote:
| I love this outcome. But what are people's thoughts on the
| analogy between a software platform and a "factory floor"? That
| seems wrong to me; the "factory" is more like the IDE, not the
| platform.
| netnewnews wrote:
| Not a programmer.
|
| If I find a service that provides and API and I want the existing
| developers (customers) who use the service to be able to use a
| competitive service and the original API is re-created in order
| to provide compatibility with the second service. Is this OK?
|
| The original API is part of a commercial service, the re-created
| API will be a commercial service, but not the entire service just
| a compatibility layer.
|
| Thoughts?
| tyingq wrote:
| This seems to change part of the debate on "Extracting the
| abstract syntax tree from GCC" that happened here recently:
|
| https://news.ycombinator.com/item?id=26590524
|
| Specifically, this thread about copying the readline API:
| https://news.ycombinator.com/item?id=26606328
|
| Stallman's contention that a judge would look unfavorably on
| cloning the API signature because it could be viewed as
| subterfuge...seems very weakened here, if copying an API is fair
| use.
|
| I suppose this also gives companies like Amazon a green light for
| clones of GPL software exposing an API that's identical.
| monocasa wrote:
| Yeah, but even Stallman's opinion and understanding on the
| matter has changed over time (that was one of the first GPL
| enforcement actions). IIRC, FSF was one of the amicus briefs in
| favor of Google's position. They want to be able to replace
| proprietary software with compatible, open source clones piece
| by piece.
|
| In fact a good chunk of the case law cited today hadn't even
| hit the courts yet at the time Stallman made that statement.
| gigatexal wrote:
| I'm super conflicted because I think I side with Oracle here and
| I never seem to. Java had an established API. It had a license.
| Google could have licensed it and the end result would have been
| the same: Java apps on Android. Weren't there even Google brass
| worried about this in emails? It seems to me Oracle is due
| license fees but SCOTUS ruled otherwise and I guess that's
| overall better for the industry.
| wtallis wrote:
| Copyright protection is not an automatic right that you're
| entitled to for anything you put effort into creating and want
| to make money off of. There are more specific requirements for
| what you need to do to secure copyright protection or patent
| protection, and there are limits on the exclusive rights those
| get you. "They worked hard on it and want to charge money for
| it" is not a sound argument.
| gigatexal wrote:
| Edit: I'm dumb. I need to read all of the ruling and then
| research what fair-use really means.
|
| Again I'm not a lawyer and I know there's nuance and
| precedent in the law I just am having a hard time with the
| seemingly obvious-ness of this case.
|
| Some examples to share how I am thinking of this:
|
| 1. Procuring land, paying contractors, buying materials,
| etc., doesn't entitle you to rents in perpetuity on say an
| apartment you build?
|
| Or 2. if I produce music -- until that music ages out and
| becomes a public good -- and I own the masters and all the
| rights to it having put in the work and the time and the
| money etc., am I not entitled to all the fees from licensing
| it to be played and consumed?
|
| I am having a hard time seeing how it's not a sound argument
| given that it seems very clear that Sun Microsystems put in a
| lot of work and effort and time and money to get Java off the
| ground and here Google comes and copies it even when there
| was an easy way to get a license.
| jeffbee wrote:
| Makes me wonder how much Goldstein & Russell get paid to win a
| case like this. Worth every cent, I assume.
| f-serif wrote:
| I don't understand why people uses such stupid font style -_-
| jraph wrote:
| uBlock origin has a convenient font blocker, for what is worth.
| Saves many kilobytes, and readability.
| kube-system wrote:
| It's not going to do much for a PDF :)
| jraph wrote:
| Oh, shout. xD
|
| Actually, I've seen uBlock Origin's font blocker actually
| break font rendering on PDFs in Firefox in the past (maybe
| still today?).
| shmerl wrote:
| That's good for practical purposes, but they still didn't rule on
| APIs being copyrightable or not to begin with? It's a bit weird
| to say _" it's fair use"_ but not say _" it's not copyrightable
| in the first place"_.
| splithalf wrote:
| This will be great for developing nations.
| webreac wrote:
| I am not a lawyer. Is it finished ? Has Oracle completely lost ?
| I really do not like very much Oracle.
| victor106 wrote:
| I love how the Us supreme court judgements are written using low
| level terminology that most anyone can understand with little
| prior knowledge. Some countries use legal and complicated jargon
| that its hard to follow.
| coldpie wrote:
| We're getting pretty far off topic, but I love this article:
| https://loweringthebar.net/2017/02/octopoid-embrace.html
| bitwize wrote:
| Supreme Court decisions are the next-best thing to black-letter
| law. It is important to clarify what the law has been decided
| to be, once and for all. Lower-court rulings have no shortage
| of legal jargon and terms of art with meanings that conflict
| with everyday meanings of those same words, because they're
| just part of the sausage making that is drafting and
| interpretation of the law. SCOTUS rulings can have these too,
| as the other responder indicated, but there's just fewer of
| them (and more clarifying language where necessary) because
| again, a SCOTUS ruling is a proclamation to the people, once
| and for all, of what the law has been settled to be.
| kemitchell wrote:
| > It is important to clarify what the law has been decided to
| be, once and for all.
|
| > because again, a SCOTUS ruling is a proclamation to the
| people, once and for all, of what the law has been settled to
| be.
|
| That is not how our common-law legal system works. Even
| setting decisions that the court has later explicitly
| overruled aside, when the court announces a new rule, that
| rule is not totally complete and set in stone. Later
| decisions frequently flesh out, revise, or reinterpret prior
| decisions.
| openasocket wrote:
| Based on my conversations with my wife, who is a lawyer, that
| plain language can be a little bit deceptive. While lawyers
| love their jargon and latin phrases, there's also a lot of very
| specific terms of art that sound like regular language. Terms
| like "reasonable" carry a lot of connotations and context in a
| legal decision that you don't get from the word alone. But
| yeah, I agree that these legal decisions are really easy for a
| layman to understand, even if I might miss some of the nuances.
| minusSeven wrote:
| So does this ruling actually mean anything or can Oracle
| challenge this too somewhere else?
| flyingfences wrote:
| It's the Supreme Court of the United States; there's no higher
| court for this case to go to -- it's final.
|
| Oracle could launch a new case but it would have to rely on
| entirely different merits. If Oracle did have such other
| grounds for a suit, they would have included them in this case.
| thesuperbigfrog wrote:
| Had the ruling gone in Oracle's favor I can imagine some greedy
| company trying to procedurally-generate every API and copyright
| them all similar to this project which tried to copyright all
| musical melodies:
|
| https://www.independent.co.uk/life-style/gadgets-and-tech/ne...
|
| In the case of the music project, it was for the protection of
| the community, but I can imagine such a system being used
| selfishly for software APIs.
| asien wrote:
| > Had the ruling gone in Oracle's favor I can imagine some
| greedy company trying to procedurally-generate every API and
| copyright them all
|
| It would have officially mean businesses and the US governments
| are locked by vendors and have no right to copy API in order to
| provide compatibility towards other systems.
|
| Making << VendorLocking >> legally valid in favor of the
| vendor.
|
| Not gonna lie I was scared by the outcome of that judgement and
| the catastrophic defense of Google.
|
| I'm now relieved !
| luckylion wrote:
| Can you copyright generated things? You probably could
| copyright the way you're generating it, but I doubt you have a
| legal standing about the generated text or melody itself.
| thesuperbigfrog wrote:
| I am not a lawyer, but I don't see why not.
|
| Have you ever used code generation as part of software you
| have built?
|
| Is there any reason why generated code could not be
| copyrighted as part of a larger system?
|
| For example, suppose I define a data model for a public-
| facing API and then generate SDKs in various popular
| programming languages to interact with the public-facing API.
|
| If I were a major corporation that owned such a public-facing
| API, then I would expect that the generated SDKs would carry
| the major corporation's copyright.
|
| edit: Another example of generated code would be the code
| generated by lexer analyzer generator and parser generator
| tools such as lex
| (https://en.wikipedia.org/wiki/Lex_(software)), flex (https:/
| /en.wikipedia.org/wiki/Flex_(lexical_analyser_generat...),
| YACC (https://en.wikipedia.org/wiki/Berkeley_Yacc), and bison
| (https://en.wikipedia.org/wiki/GNU_Bison).
|
| If you create commercial software that includes YACC-
| generated code, wouldn't the generated code be copyrightable?
| pvorb wrote:
| > as part of a larger system
|
| I think this is the key statement that will make a
| difference. If you want to copyright a larger system,
| generated code is not a problem. If you want to copyright
| an individual, generated piece of code, I doubt you'll get
| copyright for that. But IANAL either.
| CydeWeys wrote:
| > I am not a lawyer, but I don't see why not.
|
| The involvement of actual human creativity is required for
| a work to be copyrightable.
| coldtea wrote:
| The generator has been run by someone.
| thesuperbigfrog wrote:
| In my code generated-SDK example, a human defined the
| data model and a human created the code generation
| algorithm, but an algorithm generated the SDK code
| itself.
|
| So human creativity is involved, but is not the direct
| creator of the SDKs. Does that count? I am not really
| sure.
|
| I bring up the generated SDK example because I have used
| just such a system when I worked at a major corporation:
| I created a data model in Web Services Description
| Language (https://en.wikipedia.org/wiki/Web_Services_Desc
| ription_Langu...) and used a company-owned tool to
| generate SDKs in various programming languages. All of
| the generated SDKs had the company's copyright notice in
| the generated code.
| eqvinox wrote:
| IANAL, but:
|
| The code generated SDK is a derivative work of the human-
| defined data model - just like the binary for any piece
| of software is derivative of the source code. (Otherwise
| where'd the copyright for the binary come from?)
|
| The generator's copyright (or the compiler's) doesn't
| directly flow in. (But if the generator/compiler
| incorporates pieces of itself, like a support library,
| that does. Also, the generator/compiler might have terms
| of use...)
|
| If you write a generator that just generates random APIs,
| those are basically machine generated garbage and
| wouldn't be copyrightable. The human input to the
| generator is missing.
|
| [FWIW, I had to research this due to an "ill-behaved"
| community member on an open source project a few years
| back; I'm not _completely_ making this up out of thin
| air. That still doesn 't make me a lawyer though ;)]
| ghaff wrote:
| My understanding is that the copyrightability of binaries
| was something of a gray area for a time even after the
| copyrightability of source code was established. Apple v.
| Franklin is probably the most relevant court case.
| ghaff wrote:
| A more obvious example is that, if you write a program that
| generates music based on some algorithm, that work is
| presumably copyrightable.
| hctaw wrote:
| We already do this, binary is generated and copyrighted.
| hetspookjee wrote:
| Sometimes I fantasize about generating methods for creating
| copyrights, such that you can copyright the process of
| creating the copyright - for the commmunity, obviously.
| However, they explicitly forbid that, unfortunately. If only
| it worked, you could file a claim for anyone that created a
| copyright to your disliking, given that you probably make
| strong stance.
|
| While I'm at it, in a similar vein though entirely unrelated,
| i sometimes think of ways to create jurisprudence in your
| favor: You try to emulate a situation to your disliking -
| e.g. aggresive data hoarding - and file suit to yourself, try
| to argue the arguments that your target would probably file,
| but just crappy enough that you actually lose. Do this often
| and stealthy enough and voila, you might have generated
| enough jurisprudence to actually file your final claim based
| on your previous "lost" lawsuits. I do think that this
| actually does happen at times, though.
| Someone wrote:
| Humans create works, not copyrights. Copyrights spring into
| existence from nothing every time an original work is
| created.
|
| And IANAL, but I think that strategy could fall under
| https://en.wikipedia.org/wiki/Frivolous_litigation.
| simonh wrote:
| You can't copyright a procedure or process, but you can
| copyright the text of the instructions for the procedure.
| That doesn't stop someone writing an original text of
| instructions for doing the same thing though. That's how
| come there are clones of Monopoly.
|
| https://boardgamegeek.com/boardgame/20311/horse-opoly
| shagie wrote:
| Board games are protected with patents. For example, with
| Khet ( https://boardgamegeek.com/boardgame/16991/khet-
| laser-game ) there is
| https://patents.google.com/patent/US7264242 which was
| upheld - https://www.generalpatent.com/professor-s-
| company-wins-1-6-m...
|
| The patent for Monopoly is
| https://patents.google.com/patent/US2026082A/en which
| expired in '52
|
| There is also issues of trademark on the '-opoly'
| games... which was settled in '83 with https://www.americ
| anbar.org/groups/intellectual_property_law...
|
| > Finally, in 1983, the Supreme Court let stand an
| appeals court ruling that the word "Monopoly" had become
| generic, because purchasers associated the name with the
| product rather than with the source.7 Specifically,
| evidence showed that purchasers of Monopoly were
| motivated by their knowledge of the game, and not by its
| association with Parker Brothers. Directly as a result of
| this case, Congress amended SS 14(c) of the Lanham Act,
| which addresses cancellation of a registered mark, later
| that year. Congress added language clarifying that a mark
| becomes generic only if its "primary significance . . .
| to the relevant public" is as the generic description of
| the particular goods or services, and that purchaser
| motivation is not used as the test.
|
| ---
|
| There are clones of Monopoly because the patent expired
| long ago and the trademark was lost in 83. ... Which is
| also why McDonalds did its Monopoly game in '87.
| joombaga wrote:
| > Which is also why McDonalds did its Monopoly game in
| '87.
|
| Are you saying McDonald's needed to wait for the
| trademark to expire? Or that they had to wait for a new
| trademark to be established? Wasn't the promotion
| collaborative?
|
| Looking at McDonald's Monopoly commercials from 87 [1]
| and 88 [2], there's a Parker Brothers TM in both years.
|
| [1] https://youtu.be/F737BVBKMCE?t=4
|
| [2] https://youtu.be/KmV5O06McZk?t=14
| shagie wrote:
| The Parker Brother's trademark they had to license...
| probably to get specific imagery. However, the suffix
| "-opoly" as it refers to games was lost.
|
| McD's probably waited until the trademark on Monopoly was
| sufficiently weakened for them to go out, license the
| other parts of it (as it was Parker Brothers(TM).
|
| https://tmsearch.uspto.gov/bin/showfield?f=toc&state=4803
| %3A...
|
| In particular - https://tmsearch.uspto.gov/bin/showfield?
| f=doc&state=4803:qp... is likely the one that they're
| referring to which covers the trademark on the board and
| game pieces - which is different than the game name.
|
| Also note that many of those (now dead) trademarks were
| all filed in '85 - '87... after they lost the trademark
| in '83.
| jcranmer wrote:
| My understanding is no. Copyright requires human authorship
| (the case of the monkey selfie found it to be public domain
| because a monkey did it, e.g.), and code written by a machine
| is likely to follow similar precedent and be uncopyrightable.
| simiones wrote:
| Since compiled binaries are copyrighted, and this has
| already been tested in court, I believe the matter of
| generated code being copyrighted should be pretty clear:
| yes, generated code is copyrighted.
| sriram_sun wrote:
| Well if it's your monkey (or program) that generated it
| (music or art or whatever) _and_ the monkey can 't talk,
| what's to prevent you from copyrighting it?
| analognoise wrote:
| Yeah, have an AI do the work and just say nothing about
| it.
| [deleted]
| jcranmer wrote:
| You can certainly try to copyright it, but if the person
| who slavishly copies the case can demonstrate that you
| didn't write it yourself, you lose the copyright
| protection because you're not the author. There are
| copyright cases which turn heavily on who the actual
| author of the work in question is--the Happy Birthday
| song being perhaps the most famous.
| sitkack wrote:
| This whole thread could be true wrt the Monkey Selfies,
| but _I_ am someone else 's paid monkey and they can
| definitely copyright the work I do at work.
|
| So does this case really boil down to the Monkey being
| free and not owned in that you can't take _their_
| copyright away, but you could if you owned the monkey?
|
| I feel like the structure of our civilization is not
| stable, the focus and balance of capital power, the law
| and the ecological direction we are headed. I saw this
| play once and I didn't understand a bit of it.
| jcranmer wrote:
| > This whole thread could be true wrt the Monkey Selfies,
| but I am someone else's paid monkey and they can
| definitely copyright the work I do at work.
|
| That is "work for hire." You are the creative author of
| the code, but since your creativity is being applied at
| the direction of another, it is that person who owns the
| copyright instead of you. The Copyright Office has a
| document to explain how to decide whether or not your
| work is a "work for hire."
|
| As applied to monkey selfies, it's possible that the
| human photographer who set the situation up owns the
| copyright instead, but this wasn't argued in court.
| raldi wrote:
| That law is not quite settled: https://en.wikipedia.org/wik
| i/Monkey_selfie_copyright_disput...
| jcranmer wrote:
| All of the appeals courts that heard appeals in that
| situation agreed that animals could not hold copyright,
| and there are no appeals still pending since then. That's
| pretty settled--there's no courts with binding precedent
| arguing for animals being able to hold copyright.
|
| (Appeals courts can still settle case law, even if SCOTUS
| doesn't hear the case. There are several precedents that
| are set by appeals courts and not SCOTUS itself.)
| coldtea wrote:
| > _Can you copyright generated things? You probably could
| copyright the way you 're generating it, but I doubt you have
| a legal standing about the generated text or melody itself._
|
| What would be the difference between a "generated text or
| melody" you present to copyright, to one you've written
| yourself?
|
| What would be the mark of "automatic generation" that would
| be used to identify them as such and disqualify them?
| luckylion wrote:
| > What would be the mark of "automatic generation" that
| would be used to identify them as such and disqualify them?
|
| None, but you wouldn't get copyright, much like you can
| present the works of others as your own but won't actually
| get the copyright if you're not the creator.
| coldtea wrote:
| Huh? For one, nothing stops you from saying you are the
| creator, and nobody would have any way to say you're not.
|
| Second, even if you have used a generator tool,
| regardless of if you wrote it or just run it, you're the
| creator of the works it produced, and you can trivially
| get copyright for it, unless somebody else copyrighted
| the same work.
|
| Half of Brian Eno's output is generated works, where he
| sets some rules on a music synthesis system, and lets it
| create a work. Never had any issue copyrighting them...
| luckylion wrote:
| > Huh? For one, nothing stops you from saying you are the
| creator, and nobody would have any way to say you're not.
|
| Sure, just as nothing is stopping you from walking into a
| store, taking something, and walking out without paying.
| It's when you get caught doing so that the trouble
| beings. _If_ you get caught, not only do you not get the
| copyright, but you 've likely committed fraud.
|
| Proving that you're not the creator is another issue,
| which would probably make for an interesting case.
|
| > Half of Brian Eno's output is generated works, where he
| sets some rules on a music synthesis system, and lets it
| create a work. Never had any issue copyrighting them...
|
| That's somewhat different though. Setting rules makes it
| a predictable process, and you have a one-way system: you
| set the rules and you always get the same result. A
| generator that would generate all possible results isn't
| the same.
|
| If you sifted through all those randomly generated
| things, found one that you like, and published it, things
| get fuzzy, I guess. Maybe the curation would qualify as
| the creative input.
| coldtea wrote:
| > _Sure, just as nothing is stopping you from walking
| into a store, taking something, and walking out without
| paying._
|
| Well, there is. If you get caught you get to jail.
|
| Whereas if you get "caught" saying this generated melody
| is your melody, nothing happens. It's a totally valid
| thing to copyright. (And even if it wasn't, unlike the
| store theft case, there's no way for anybody to tell and
| prove it's not yours anyway).
|
| But in any case, you appear confused as to this.
|
| Whatever tool you can use to create a melody, the melody
| is still yours to copyright (unless somebody else came
| with it first and copyrighted it). You don't have to
| "think" of the melody or write it on the piano, or
| something.
|
| In fact tons of melodies nowadays are written partially
| or wholly by compositional tools.
|
| People using those tools have the regular claim to the
| output melodies, regardless of whether the tool is some
| DAW utility or "random melody" button (all of which
| exist), a music synthesis algorithm with some params and
| seed, or even an exhaustive, minimally creative tool to
| iterate over all possible melodies.
|
| (Actually some musicians/coders did exactly the latter:
| https://www.vice.com/en/article/wxepzw/musicians-
| algorithmic... )
|
| There's no rule "you can't copyright a generated melody".
| daniellarusso wrote:
| For video and photography, there has to be a human element
| involved.
|
| A fixed, CCTV feed of a beach with a daily sunset is not
| copyrightable, nor is a non-human using a photo camera.
| myself248 wrote:
| But a photographer who travels to the beach and sets out a
| camera on a tripod to capture a timelapse of the sunset
| DOES have copyright over those photos.
|
| What's the difference if they leave the camera there for
| longer? They still chose the placement and the angle and
| the lens. In either case, the camera's electronics are
| deciding the minutiae of the image acquisition.
| daniellarusso wrote:
| Intent. It is non-permanent and done by the photographer,
| not a third party.
| salawat wrote:
| The human still made the decision to place the camera just
| so. You're not travelling through enough layers of
| intentionality.
| daniellarusso wrote:
| Which human?
|
| The installer or the owner of the equipment?
| salawat wrote:
| Look through the contract. Guarantee the installer
| assigns all IP rights to the client if theres anything
| else softwarewise going on with the feed, and if not,
| litigation would probably clear it up.
| Natanael_L wrote:
| Independent copyright when a work was independently created is
| a thing in most jurisdictions, as copyright covers _copying_
| and is not like patents in that regard.
|
| However, that would indeed require a ton more work to prove
| that you did not copy any of the generated work and truly did
| create yours by yourself.
| szhu wrote:
| Great line:
|
| > _Unlike many other computer programs, the value of the copied
| lines is in significant part derived from the in- vestment of
| users (here computer programmers) who have learned the API's
| system._
| chmod600 wrote:
| From the dissent:
|
| "Instead of creating its own declaring code--as Apple and
| Microsoft chose to do-- Google copied verbatim 11,500 lines of
| Oracle's declaring code and arranged that code exactly as Oracle
| had done."
|
| I didn't read the whole opinion, but what is Google's excuse for
| this? If there's one way to do it, I don't think copyright should
| apply. But when there's more than one way, why should copyright
| not provide some protection? I guess just because it's tiny and
| contains little expression?
|
| Regardless, it seems like very poor judgement to not do a
| cleanroom implementation here.
| mjw1007 wrote:
| The bits where they emphasise that the copying was
| "transformative" as part of the "Purpose and Character of the
| Use" analysis are interesting:
|
| << Google's limited copying of the API is a transformative use.
| Google copied only what was needed to allow programmers to work
| in a different computing environment without discarding a portion
| of a familiar programming language. Google's purpose was to
| create a different task-related system for a different computing
| environment (smartphones) and to create a platform -- the Android
| platform -- that would help achieve and popularize that
| objective. >>
|
| << Here Google's use of the Sun Java API seeks to create new
| products. It seeks to expand the use and usefulness of Android-
| based smartphones. Its new product offers programmers a highly
| creative and innovative tool for a smartphone environment. To the
| extent that Google used parts of the Sun Java API to create a new
| platform that could be readily used by programmers, its use was
| consistent with that creative "progress" that is the basic
| constitutional objective of copyright itself. >>
|
| This suggests to me that someone who copies a set of function
| declarations for the purposes of, say, creating a free-software
| clone of an existing product might not be able to rely on this
| decision.
| bitwize wrote:
| > This suggests to me that someone who copies a set of function
| declarations for the purposes of, say, creating a free-software
| clone of an existing product might not be able to rely on this
| decision.
|
| They wouldn't need to rely on this decision.
|
| The courts tend to frown on using IP law as a weapon against
| interoperability or legitimate competition outside the scope of
| what the IP law covers. If you get sued for copying Yoyodyne's
| API in order to develop an otherwise original piece of software
| whose purpose is to interact with other software that expects
| Yoyodyne's program, the appeals court is likely to smack the
| suit down citing _Sega v. Accolade_ and _Sony v. Connectix_ ,
| and the SCOTUS (assuming it gets that far) is likely to agree.
|
| One of Oracle's major arguments was that Android was _not_
| interoperable with regular Java, and in Oracle 's position the
| fact that Google copied Java's declaring code just to screw
| Oracle over put Android outside the bounds of interoperability
| fair-use protection.
| javajosh wrote:
| Does anyone have a good estimate of what this case cost Oracle
| and Google, especially in terms of legal fees, and where that
| money went ultimately?
| dkjaudyeqooe wrote:
| I don't know, but it was money well spent and we should thank
| them for causing this important point of law to be clarified.
| AnimalMuppet wrote:
| It was money well spent for Google. For Oracle, it was money
| thrown away for nothing but bad PR.
| pm90 wrote:
| The money goes into lawyers fees.
|
| Because of the way this decision went, I'm sure Google
| considers it a worthy investment and Oracle considers it a
| temporary setback as it pursues other extortion schemes using
| Sun's Patents. I wouldn't be surprised if they have a specific
| division of lawyers dedicated to finding novel ways of
| extorting wealth using Patents; this would likely just be one
| of the cases they were working on.
|
| Come to think of it, from Oracles perspective it was definitely
| worth a shot, to throw a few millions (if that?) with a chance
| of winning billions.
| danans wrote:
| > worth a shot, to throw a few millions (if that?)
|
| Teams of high end lawyers over about a decade? Probably at
| least 10s of millions.
| upbeat_general wrote:
| It was definitely more than a few millions. Still might have
| been worth it but lawyers are expensive.
| phonon wrote:
| > as it pursues other extortion schemes using Sun's Patents.
|
| They bought Sun 12 years ago...not much time left to pursue
| that...
| lisper wrote:
| Although I applaud the effect of this decision, I can't help but
| agree with Clarence Thomas that the reasoning behind it is not
| sound. It waffles back and forth between arguments for fair use
| and arguments that APIs are not (or at least should not be)
| copyrightable in the first place. You can't have it both ways. If
| APIs are copyrightable (and a plain reading of the text of the
| law appears to indicate that they are) then Google's copying was
| clearly not fair use. The purpose was clearly commercial, not
| educational or a parody. The API was not merely a fact or an
| idea, it was a specific embodiment that required effort to
| produce. And the copying clearly had a negative impact on the
| value of the original.
|
| What really happened here is that the Supreme Court did an end-
| run around the law to paper over a major fuckup by Congress. On
| the one hand, I'm glad that they fixed the problem. But the way
| that they did it fills me with dread for the future because it
| undermines the rule of law.
|
| For the record, I absolutely despise Clarence Thomas and
| everything that he stands for. But in this case I think he has a
| valid point.
| dpifke wrote:
| _The purpose was clearly commercial, not educational or a
| parody._
|
| This is addressed in the decision on page 27. The Court wrote:
|
| _The text of SS107 includes various noncommercial uses, such
| as teaching and scholarship, as paradigmatic examples of
| privileged copying. There is no doubt that a finding that
| copying was not commercial in nature tips the scales in favor
| of fair use. But the inverse is not necessarily true, as many
| common fair uses are indisputably commercial. For instance, the
| text of SS107 includes examples like "news reporting," which is
| often done for commercial profit. So even though Google's use
| was a commercial endeavor--a fact no party disputed, see 886 F.
| 3d, at 1197--that is not dispositive of the first factor,
| particularly in light of the inherently transformative role
| that the reimplementation played in the new Android system._
| lisper wrote:
| > news reporting
|
| Sure, but what that means is that I can do (say) movie
| reviews for profit and include clips from the film. It does
| not mean that I can re-broadcast the CBS Evening News with my
| own commercials.
| shadowgovt wrote:
| IANAL, but there is definitely such a thing as commercial fair
| use. The music industry is rife with "they stole my riff" cases
| that hinge on whether the copying was transformative and the
| amount that was copied. I wouldn't go so far as to say this
| undermines the rule of law (rather, the Court's precedent-
| setting power is _part_ of the rule of law. It may undermine
| rule _by Congress_ , but nothing about the US system makes
| Congress a king, and if they want to take back their power on
| this topic, they need only craft a clearer law addressing these
| issues directly).
|
| I think reasonable people can agree with Justice Thomas on this
| (sidebar: this is why I love reading SCOTUS rulings - they're
| generally wise people and both the majority and dissent sides
| are usually reasonable takes). The tests of "is it
| transformative" and "how much was taken" are probably the most
| subjective tests in the copyright precedent.
| jacques_chester wrote:
| > _It waffles back and forth between arguments for fair use and
| arguments that APIs are not (or at least should not be)
| copyrightable in the first place._
|
| The precedential parts are unambiguous: Google's actions were
| fair use, _as a matter of law_ (this is code to lower courts to
| not fuck around). The majority opinion did not answer whether
| APIs are copyrightable in the first place because it was
| unnecessary to settle the dispute.
|
| The rest of it is _obiter dicta_. Thomas 's objection, as is
| usually the case, is irrelevant.
|
| IANAL, TINLA.
| kemitchell wrote:
| > The majority opinion did not answer whether APIs are
| copyrightable in the first place because it was unnecessary
| to settle the dispute.
|
| They didn't answer it. They _assumed_ it. They couldn 't
| reach the fair uses analysis any other way. No copyright, no
| infringement, no need to assert affirmative defenses like
| fair use.
|
| > In reviewing that [lower court] decision, we assume, for
| argument's sake, that the material was copyrightable.
|
| > We shall assume, but purely for argument's sake, that the
| entire Sun Java API falls within the definition of that which
| can be copyrighted. We shall ask instead whether Google's use
| of part of that API was a "fair use."
|
| You can call all dissents irrelevant if you like. But Thomas'
| dissent addressed the issue of the case, and arguably more
| directly than the majority's. The Federal Circuit decision on
| copyrightability, for which the Supreme Court denied cert,
| still stands. Its importance, not its rule, is called into
| question today.
| mumblemumble wrote:
| >You can't have it both ways. If APIs are copyrightable ...
| then Google's copying was clearly not fair use.
|
| You seem to have misunderstood the idea of fair use. Fair use
| is a specific doctrine covering the acceptable ("fair") use of
| _copyrighted_ works. Fair use of a non-copyrightable work would
| be, technically speaking, a contradiction in terms.
|
| See, for example, the US copyright office's explanation:
| https://www.copyright.gov/fair-use/more-info.html The first
| sentence is "Fair use is a legal doctrine that promotes freedom
| of expression by permitting the unlicensed use of copyright-
| protected works in certain circumstances."
|
| Furthermore, there is no requirement that fair use be non-
| commercial. It is more likely that the courts will find that
| non-commercial use is fair, but that is not a hard and fast
| rule. An easy example here is book reviews quoting passages
| from the text.
| kemitchell wrote:
| The point of much of Thomas' dissent, as I understood it, was
| precisely that the court is muddying the rules by taking
| concerns that properly belong in copyrightability into fair
| use. They've carved out a subset of copyrights---copyrights
| on "declaring code"---and made them difficult or impossible
| to practically enforce. But they did so under one vague fair
| use factor, not the rules about copyrightability. Because, as
| Thomas sees it, there's no dignified argument for exclusion
| or second-class status under the copyrightability rules, most
| of which come from statute, rather than the courts.
| bostonsre wrote:
| Does oracle have any moves left to counter this decision? Or are
| we finally clear of this litigation that has been hanging over us
| for so long?
| lolinder wrote:
| The Supreme Court is the court of last resort. They'd have to
| start over with some new argument, and if they had a better one
| I imagine they would've pulled it out by now.
| hacktember wrote:
| I'm sooo relieved that this is over!
| Andrex wrote:
| Just exhaled the biggest sigh of relief I've ever had when
| reading the title. Holy cow. Thank fucking god.
| pjmlp wrote:
| Now while I eat my hat, I am waiting to see what will be the next
| excuse for not updating Android Java to latest versions.
| monocasa wrote:
| Oracle's newer VM patents.
| pjmlp wrote:
| Cleverly forgetting those from IBM, Intel, Microsoft, Amazon,
| Azul, SAP, Alibaba and everyone else that works on Java?
| monocasa wrote:
| No, because the core patents behind the features you're
| asking about are very much in Oracle's possession, as those
| class library improvements were overwhelmingly written by
| Sun/Oracle engineers. Those other actors you're talking
| about absolutely contribute, but not in as nearly a
| fundamental to the implementation of the library and
| runtime definitions kind of way.
| pjmlp wrote:
| Are you now asserting that Sun/Oracle has pattents
| regarding Azul's GC implementation, PTC real time
| threading and AOT compiler, Aicas hard real time GC, IBM
| mainframe implementations of their own JVM and WebSphere
| Real Time VM?
| monocasa wrote:
| No, I'm asserting that those (while being extremely
| valuable additions to the field) have nothing to do with
| a newer version of Java which is what you were asking
| about.
|
| > the next excuse for not updating Android Java to latest
| versions.
| tibbydudeza wrote:
| A good ruling.
|
| Re-implementing an API is how we got clone PC's when Compaq
| cloned the IBM BIOS interface and associated ISA bus logic which
| made Intel based DOS home computers cheaper and affordable for
| ordinary people.
| mikevm wrote:
| So what does this mean for the future of Java, now that Oracle
| won't be able to milk Google with licensing fees?
| eric_fib wrote:
| Really interesting!
| marcodiego wrote:
| Great! This could open a very dangerous precedent.
|
| Time to end this one now:
| https://news.ycombinator.com/item?id=26692575
| curt15 wrote:
| "The record also showed that Java SE's copyright holder would
| benefit from the reimplementation of its interface into a
| different market....the jury also heard evidence that Sun foresaw
| a benefit from the broader use of the Java programming language
| in a new platform like Android, as it would further expand the
| network of Java-trained programmers...and because there are two
| markets at issue, programmers learning the Java language to work
| in one market (smartphones) are then able to bring those talents
| to the other market (laptops)."
|
| The benefits of reimplementing APIs always flow both ways. I'm
| glad SCOTUS recognised this point.
| kaba0 wrote:
| Except that Android is a fkup of "Java" that is so old that
| repositories have to create an android and a normal version.
| Kotlin spread into android development pretty much because
| android java is so bad.
|
| That is exactly what was the "damage" Oracle sued for.
| smsm42 wrote:
| I kinda doubt Oracle sued for 9 billions damages because
| Google tarnished Oracle's image with their bad Java
| implementation.
| tpush wrote:
| The comments on this case always seem a bit confused to me.
|
| APIs have been copyrightable (in the US) since 2014(or 15, not
| sure). This ruling only affects the fair use judgement, and makes
| no further statement on the question of copyright; meaning APIs
| are still subject to copyright.
| jcranmer wrote:
| The copyrightability of APIs goes back to the "structure,
| sequence, and organization" being copyrightable decision back
| in (checks Wikipedia) 1986. The application since then has been
| inconsistent. Essentially, there's a concept called "thin
| copyright" which recognizes that some copyrightable things only
| receive minimal protection. The canonical example here is a
| phone books--phone books _are_ copyrightable, but they mostly
| contain non-copyrightable information (lists of phone numbers),
| so most copying will essentially be fair use or free.
|
| Breyer's decision explicitly avoids deciding whether or not the
| SSO being copyrightable is good law, but it does essentially
| provide that it provides only thin copyright.
| nashashmi wrote:
| I have a workaround. I was thinking that an adapter socket can be
| patented. And use by others cannot be made declared under fair
| use.
|
| So what if APIs were also patented?
| flowerlad wrote:
| This has impact beyond APIs. The Supreme Court says copying User
| Interface is fair use.
|
| Excerpts:
|
| _The nature of the work at issue favors fair use. The copied
| lines of code are part of a "user interface" that provides a way
| for programmers to access prewritten computer code through the
| use of simple commands. As a result, this code is different from
| many other types of code, such as the code that actually
| instructs the computer to execute a task. As part of an
| interface, the copied lines are inherently bound together with
| uncopyrightable ideas (the overall organization of the API) and
| the creation of new creative expression (the code independently
| written by Google). Unlike many other computer programs, the
| value of the copied lines is in significant part derived from the
| investment of users (here computer programmers) who have learned
| the API's system. Given these differences, application of fair
| use here is unlikely to undermine the general copyright
| protection that Congress provided for computer programs._
| dkjaudyeqooe wrote:
| You're reading too much into that. The user in this case is the
| programmer using the API, or even the code that uses the API.
| It's doesn't generalize to end user interfaces.
| flowerlad wrote:
| The same principle applies, and for the same reasons
| mentioned in the portions I excerpted above.
| eric_fib wrote:
| aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
| aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
| aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
| aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
| aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
| aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
| aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
| aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
| aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
| aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
| aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
| aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
| aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
| aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
| aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
| aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
| aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
| aaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaaa
| d3ntb3ev1l wrote:
| Can I copy one line from the Beatles catalog "she loves you yeah
| yeah". I represents such a small % of their overall lyrics.
| pkulak wrote:
| > In this way, the declaring code's shortcut function is similar
| to a gas pedal in a car that tells the car to move faster or the
| QWERTY keyboard on a typewriter that calls up a certain letter
| when you press a particular key. As those analogies demonstrate,
| one can think of the declaring code as part of an interface
| between human beings and a machine.
|
| I love this analogy, and I'm going to use it to describe this
| case from now on. If I have a great idea for a new keyboard,
| maybe great new clicky keys or something, I have to make it
| QWERTY. I can't just come up with some random key ordering. And
| it has nothing to do with how good or bad QWERTY is as an idea.
| It's just that QWERTY happens to be what people have skills in.
| anonymouse008 wrote:
| Actually, I find this a bit underpowered. The whole idea is
| that the invention (in this case the API design or QWERTY in
| your example) is so powerful that it becomes a 'utility' - so
| Java's implementation was so powerful it really should have
| been 'patented' not copyrighted. Then after 20 years, you can
| take the true 'utility' of the API design from Java to the
| commons.
|
| And yes, if ease of use will be a differentiator why people
| like Apple (whether it's right or wrong), then so is the
| ability to learn is an attribute to be protected from theft.
|
| I say all this seeing exactly where Swift is heading, and
| probably why Apple _created_ the language that will run their
| unified APIs... because there 's no other way to join except
| through their Swift gates.
| baq wrote:
| Was following this on slashdot. Kids grew up in the meantime.
| AshamedCaptain wrote:
| For better or worse, the same arguments ( "API is copyrightable"
| ) is what was used in the past to prevent 98's Microsoft from
| doing embrace-extend-extinguish to Java with their "JavaVM with
| P/Invoke'd Win32 API".
|
| The idea in that case was that when you try to implement
| something identical to the Java language and standard library, it
| doesn't matter if you call it Java or "Visual J++"; you are still
| implementing Java and thus in order to be able to do that you
| need to agree to Sun's terms (in that time, it was that your
| implementation needed to pass a testsuite and among other things
| needed to be "write once run everywhere", something the MS one
| definitely didn't as it was offering lots of non-portable
| extensions).
|
| Now to my understanding the opinion here is that literally Sun
| was trying to do the same to Google (forcing them to ensure their
| implementation was compatible with Sun's, including being able to
| run Android software under Sun's JVM), which would have quite put
| a setback to Android at least as it was at that point (could you
| imagine Android forced to go with Swing?).
|
| If I try to be fair, I find that in fact Android did succesfully
| pull the embrace-extend-extinguish strategy that MS was prevented
| to by legal reasons, and as a consequence basically killed Java
| on the mobile space (though Oracle has a lot of blame to share
| here). Perhaps the tides turned and now Google is seen as the
| lesser evil when compared to Oracle, while in the past Sun was
| seen as the lesser evil compared to MS. But is there any
| objective reason why the two rulings should have gone
| differently?
|
| I am actually completely undecided about how I would have liked
| this ruling to go. I can see some of the repercussions of being
| able to copyright "header files" way too dangerous to ignore, but
| on the other side I have already seen the consequences of not
| being able to, and they are also bad.
|
| Alien vs predator...
| kerblang wrote:
| If I recall correctly, Microsoft licensed java and Sun sued
| them for violating the terms of the license. Google never had a
| license; they were sued for violating copyright. Neither
| lawsuit determined that embrace/extend/extinguish is
| illegal/unethical/immoral; they were concerned with the means,
| not the ends.
| whoisthemachine wrote:
| I immediately thought of Microsoft Visual J++ as well. I will
| add that the Android Runtime/Dalvik did not really add such
| extensions to the Java language, only an additional library, so
| it isn't quite the same embrace/extend/extinguish approach, but
| the change in opinion is curious, and perhaps more a sign of
| the times than anything else.
|
| I wonder if Microsoft's actions could have been ruled at the
| time as violating antitrust laws instead, if the copyright
| interpretation had fallen flat? Perhaps upcoming antitrust
| investigations into Google will look at their re-implementation
| of Java interfaces in the same light?
| esturk wrote:
| You say the alternative is bad but stop short of evaluating how
| bad. There's clearly a difference here and you don't seem to
| shy away from giving an opinion yet you also claim to be
| undecided for a court case that had lasted 10 years.
|
| I'm sorry, but this smells like a bad faith argument.
| stickfigure wrote:
| I led the development of a large GUI app using J++ in the late
| 90s. This fear you describe is unwarranted.
|
| It's worth pointing out that the list of examples of "Embrace,
| Extend, Extinguish" on the wikipedia page of that name [1]
| contains _zero_ actual successful examples of it working.
| Perhaps you have noticed that you aren 't reading this page in
| an ActiveX control.
|
| This is a boogeyman. Don't be afraid of it.
|
| [1]:
| https://en.wikipedia.org/wiki/Embrace,_extend,_and_extinguis...
| 1-6 wrote:
| I don't want to speculate but Microsoft's embrace of Linux
| and Github has been frightening to me.
| TheRealDunkirk wrote:
| > the wikipedia page of that name [1] contains zero actual
| successful examples of it working.
|
| I will also point out that this page does not contain the
| letters "Novell" anywhere within it.
| marcosdumay wrote:
| > It's worth pointing out that the list of examples of
| "Embrace, Extend, Extinguish" on the wikipedia page of that
| name [1] contains zero actual successful examples of it
| working.
|
| Looks like the successful examples were successful enough for
| everybody to forget about the originals. There is basically
| no other YP/Kerberos/SMB implementation in use that didn't
| follow from the MS copy. Netscape was successfully lead to
| bankruptcy. All the EEE days platform independent dev-tools
| were successfully lead to bankruptcy. All the EEE days
| competing office suites were successfully lead to
| bankruptcy...
| stickfigure wrote:
| SMB seems alive and well? I don't see an "Extinguish"
| there.
|
| You seem to be conflating "beat in the marketplace" with
| EEE. Netscape didn't fail because of ActiveX. They failed
| because web browsers and web servers became free.
|
| Competing office suites struggle not because Microsoft
| extended some underlying protocol. Like it or not (and I
| personally don't), Office delivers an incredible amount of
| business value to its users.
|
| Platform independent dev-tools were, and are, still around.
| But like the browser, it's tough to make a living selling
| dev tools when they are generally free.
|
| Microsoft has been a very successful company for many
| reasons. It's not clear that "Embrace, Extend, Extinguish"
| is one of them.
| Natanael_L wrote:
| Their failure to take control over those markets is not the
| same as a failure to cause damage. They slowed down
| development of web standards by many many years, as one
| example.
| AshamedCaptain wrote:
| As a contractor I have been a victim of _all_ the examples in
| that website (yes, even Interix. A company I used to work for
| immediately tried porting their software to Interix the
| moment it was released for free (I think XP?), and I still
| have nightmares to this day. God bless that guy who used to
| have a website with more recent GNU utilities for Interix).
| They only really succeeded in some of them (e.g. MSN,
| browser, email) but they definitely tried. Sometimes it was
| legal reasons that stopped them (e.g. Java) and not just
| their incompetence.
| MichaelMoser123 wrote:
| Microsoft extended the JDK with VisualJ++, by introducing their
| COM based version of JNI. They claimed that the result was the
| same thing; now Google reimplemented the JDK while keeping the
| same API. that makes a subtle difference. I wonder what would
| have happened if Microsoft were to have sold VisualJ++ as
| 'Microsoft JDK'.
| sn_master wrote:
| The problem was, code written for J++ wouldn't run on
| "regular" Java outside of Windows, effectively killing the
| cross-platform aspect of Java and turning it into another
| Visual Basic.
| AnthonyMouse wrote:
| The issue is that what Sun was trying to do to Microsoft was
| equally wrong, but people didn't care as much because Microsoft
| was more obviously the villain.
|
| The real answer is that copyright is the wrong tool to go after
| what Microsoft did and the correct tool for that is antitrust.
| EEE is anti-competitive even if copying an API is fair use.
| jeswin wrote:
| There's a huge difference. Microsoft was already a monopoly on
| desktops (and was relying on that dominance to EEE) when that
| happened, while in Google's case the smartphone industry was
| nascent.
| Edman274 wrote:
| I think the difference here would be that the "point" of Google
| copying the API was not to make Oracle's Java be irrelevant,
| but rather to get a pool of developers that already knew the
| platform. Whether Oracle's Java stayed as popular or even got
| bigger was irrelevant for their purposes. The "point" of
| Microsoft's copying of the API was to make it so that
| eventually, people would only use their version, like they did
| with MS-DOS. The Supreme Court was considering the "point" when
| they were applying a test on "what kind of economic impact does
| the copying have on the original" and "does this act as a
| substitute for the original", which is on pages 32 and 33,
| where they're saying "Oracle / Sun tried to get into the
| smartphone space but couldn't hack it, Google entering that
| space didn't meaningfully affect them".
|
| On the flip side, if Microsoft had been judged by the same
| standard, they might determine that Microsoft's
| reimplementation of an incompatible Java would have too much of
| an economic impact on the original to be fair use.
| fncypants wrote:
| The 1990s Microsoft issues were antitrust. They tried "embrace-
| extend-extinguish" because they were in a monopolistic
| position, and this tactic was viewed as anticompetitive.
|
| But Google (at least with respect to phone OS) was in the
| position of the startup, and Sun was the big market player.
| Now, Google had with ridiculous resources at its disposal, of
| course, but at the time not using a monopoly position to twist
| arms of carriers, for example. It's not anti-competitive to
| spend a lot of money to win.
|
| Of course, things change....
| randomifcpfan wrote:
| The different case results had nothing to do with the relative
| size of Google vs Microsoft vs Sun.
|
| Microsoft lost because Microsoft had signed a contract with
| Sun, and was found to have broken the terms of the contract.
|
| Google never signed a contract with Sun, so was free to act in
| ways that Microsoft was not.
| BoDlulu wrote:
| I seem to remember that the 98 case was a trademark violation.
| Microsoft used the Java brand even though their implementation
| wasn't compliant (it was a derivative) - which was a big issue
| for Sun since one of the main point of Java is compatibility
| ("Write once, run everywhere").
|
| Google however made sure to always be clear about "the Java
| Programming Language" or such safe phrase that makes clear that
| they're not the official thing.
| AnimalMuppet wrote:
| Correct. Microsoft could make J++ or whatever; they just
| couldn't call it Java.
|
| The particular issue was that Microsoft was extending some of
| the Java language (and maybe com.sun?) classes. If you used
| any of their extensions, then you had code that could only be
| compiled with Microsoft's compilers, and you were locked in.
| (The "extend" phase, which is then leveraged for the
| "extinguish" phase.)
| o_nate wrote:
| I'm not sure the "API is copyrightable" argument was relevant
| in the Microsoft-Sun case. Keep in mind that case was settled
| privately. Since it was never decided in court, it's hard to
| say what the most relevant claims were, but I don't see Sun
| making much of the copyright claim. They had a licensing claim
| because they claimed Microsoft had licensed the Java trademark
| but was not implementing it fully according to the spec. That
| seems rather different than this case.
| AshamedCaptain wrote:
| Good points. Though I thought the J++ naming was precisely to
| avoid the Java TM.
| lvass wrote:
| So does this mean one can already interface with a GPL
| program/library and ignore it's license? Is this the end of the
| GPL dual-license business model?
|
| https://github.com/JoshCheek/clisp/blob/master/doc/Why-CLISP...
| ajayyy wrote:
| No, only if you write your own implementation. Google rewrote
| the Java API from scratch* except for using the same method
| signatures.
|
| * Some small functions were directly copied, but nothing major
| suhail_saifi929 wrote:
| Gjb
| [deleted]
| strenholme wrote:
| I am very glad to see this. Having a "you can abuse copyright to
| have proprietary control over an API" precedent on the books had
| a chilling effect for programmers.
|
| Let me give you one example as an electronic musician. Once upon
| a time, Steinberg created an API for connecting programs which
| simulate musical instruments and musical effects (think reverb,
| echo, flanger, etc.) called VST. This API was _always_
| proprietary but everyone ending up using it, including the open
| source Audacity program which uses an open source re-
| implementation of the VST API, allowing it to use professional
| effects when editing tracks.
|
| Well, Steinberg decided that VST2 -- the one everyone has been
| using -- was out of date and removed all downloads to the VST2
| API, since they wanted users to upgrade to VST3. While a lot of
| professional music making tools have updated to VST3, others have
| not, and a lot of tools will never be updated. Steinberg no
| longer has a copy of the VST2 SDK available for download; they're
| really trying to get everyone to update to VST3.
|
| Now, with this horrible "Google vs. Oracle" precedent looming
| over everyone's head that a company was allowed to copyright an
| API, Steinberg could had, in theory, said "VST2 is copyrighted,
| and Audacity is not allowed to use their own independent
| implementation of that API" (they didn't in practice because they
| know it's bad business; indeed VST3 is dual licensed, where GPL3
| is one of the license options).
|
| With this precedent, the Audacity team can more easily retain
| their independent implementation of VST2 knowing the legal
| precedent saying re-implementing an API is fair use.
| pyrale wrote:
| > I am very glad to see this. Having a "you can abuse copyright
| to have proprietary control over an API" precedent on the books
| was a chilling effect for programmers.
|
| It was always possible to release APIs as open-source. There's
| as much chilling effect about proprietary software as there
| ever was being careful about using licensed work, and that was
| never a problem.
|
| On the other hand, the hunting season on companies providing
| software is now open. You're a startup providing a new
| database, or a well-thought library? Shit, you better take the
| VC money before someone else does and puts you out of business.
| And when a company like Amazon comes with an offer, you better
| not be in a bargaining mood.
| greg7mdp wrote:
| Thomas and Alito dissented - these two are always on the wrong
| side of history.
| softwaredoug wrote:
| Judge William Alsup learned to code for this case, and was
| therefore able to avoid a lot of the BS being peddled around the
| significance of some of the code:
|
| > The argument centered on a function called rangeCheck. ... It
| was in Oracle's interest to play up the significance of
| rangeCheck as much as possible, and David Boies, Oracle's lawyer,
| began to argue that Google had copied rangeCheck so that it could
| take Android to market more quickly. Judge Alsup was not buying
| it.
|
| > "I couldn't have told you the first thing about Java before
| this trial," said the judge. "But, I have done and still do a lot
| of programming myself in other languages. I have written blocks
| of code like rangeCheck a hundred times or more. I could do it.
| You could do it. It is so simple."
|
| https://www.theverge.com/2017/10/19/16503076/oracle-vs-googl...
| distribot wrote:
| I just took a look at the rangeCheck:
|
| https://majadhondt.wordpress.com/2012/05/16/googles-9-lines/
|
| Is this example correct? Can someone explain to me how this: if
| (toIndex > arrayLen)
|
| is correct?
|
| If the array length is say 5, and toIndex is 5, that should
| still throw an index out of bounds exception, right? But it
| would be acceptable here.
| jameshart wrote:
| The upper bound of the range is intended to be exclusive,
| while the lower bound is inclusive - basically, the same s
| array indexing convention. It allows the case where fromIndex
| == toIndex to represent the empty range (note that this check
| does permit fromIndex to equal toIndex, but never to exceed
| it), and the number of entries in a given range is always
| defined by toIndex - fromIndex.
| asgeir wrote:
| This is correct for a half-closed interval
| https://mathworld.wolfram.com/Half-ClosedInterval.html
| mikevm wrote:
| toIndex is defined to be the index after the last element of
| the range (a half-closed interval).
| Jabbles wrote:
| The example is correct. toIndex is exclusive.
|
| Here is Dijkstra's opinion on why:
|
| https://www.cs.utexas.edu/users/EWD/transcriptions/EWD08xx/E.
| ..
| tomsmeding wrote:
| Aside from the questionable inequalities, there's a missing
| closing parenthesis after the arguments on the first line,
| too.
|
| EDIT: as has been pointed out, the inequalities are correct.
| The original code can e.g. be found here, including doc
| comments showing the intended meaning of the arguments: http:
| //www.groklaw.net/pdf3/OraGoogletrialexhibits/2012-04-2...
| (all the way at the end)
| distribot wrote:
| Thanks this makes sense. So the toIndex is literally
| defined as "the index after the last element in the range".
| orangecat wrote:
| _Judge William Alsup learned to code for this case_
|
| He learned Java for the case, but he was already an
| accomplished developer:
| https://www.theverge.com/2017/10/19/16503076/oracle-vs-googl...
| garaetjjte wrote:
| >David Boies
|
| _That_ David Boies? I guess law firms will represent whoever
| will pay, but it seems somewhat funny that he also represented
| The SCO Group in their litigation against IBM...
| mlindner wrote:
| That judge had no part of this decision though.
| Spooky23 wrote:
| This stuff is very nuanced, especially when the stakes are
| high.
|
| SCOTUS rules on the legal and fundamental matter, not the
| subject. So if the attorneys for one side or the other are
| able to manipulate the judge into making a weak ruling (even
| one not in their favor), the appeals courts rulings will be
| impacted. In this case, the trial judge went above and beyond
| to avoid that kind of bullshit.
| chmod600 wrote:
| This is not a Constitutional issue. This is a purely legal
| decision based on a federal statute passed by Congress.
|
| Constitutional issues are somewhat of a mix of the political and
| legal. SCOTUS tries to be apolitical, but by its nature it can
| override Congress on Constitutional matters, and therefore it's
| at least somewhat political.
|
| But cases like this are legal. Political credit and blame for
| this decision should go to Congress, not SCOTUS.
|
| Of course, those interested in the legal process itself may give
| credit or blame to the justices for their legal positions.
| gjsman-1000 wrote:
| Oh my God. What a relief.
| mrkstu wrote:
| Yep. This case was an existential threat to multitudes of
| industries and the assumptions they were built on.
|
| The weird thing is it would of hurt Oracle as much as anyone. I
| have no clue how anyone w/any technical merit didn't understand
| that this was a footgun of the largest possible magnitude for
| them.
| thedevelopnik wrote:
| I had the opportunity once to talk to an IP lawyer for Oracle
| and brought this up. I specifically brought up the S3
| compatibility of their cloud storage among other instances.
|
| His reply was "without admitting anything specific, how do
| you know we haven't purchased private licenses for anything
| you just mentioned?"
| kaba0 wrote:
| Isn't S3 under the Apache license?
| throwaway3699 wrote:
| It's still silly. Imagine if you needed to purchase a
| license for the shape of plug that fits inside a standard
| plug socket - to build any appliance.
| thedevelopnik wrote:
| Oh yeah he and I still fundamentally disagreed, but it
| gave me some insight into Oracle's position.
| bobmalone123 wrote:
| Imagine if you had to pay a software developer 300K a
| year to design that API that you think it's cool to
| steal.
| [deleted]
| throwaway3699 wrote:
| Someone had to design plug sockets too.
| rodgerd wrote:
| Plenty of good, cheap DACs built in China (e.g. Topping)
| have an HDMI-shaped plug (IIS) that supports PCM-over-
| not-HDMI which happens to be compatible with HDMI
| sources, but don't dare mention HDMI because they don't
| want to pull in an interlocking, price-gouging nonsense
| from the US entertainment industry.
|
| So you don't _quite_ need a license for the shape of the
| plug, but you _do_ need to pretend it 's not something
| that it is.
| coldpie wrote:
| I'd really like it if we could kill Oracle somehow. They are
| easily the worst player in the technology industry.
| kaba0 wrote:
| Based on what?
| gjsman-1000 wrote:
| In my own mind, when CentOS died Oracle was saying you should
| move to "Oracle Unbreakable Linux"... which is a downstream
| clone of RHEL, just like CentOS was. Just one example of the
| hypocrisy.
| [deleted]
| bryanlarsen wrote:
| Even more egregiously, Oracle's whole existence is based
| off of copying the SQL API from IBM.
| throwaway8581 wrote:
| It is uncontested that Oracle cloning RHEL is allowed by
| the license that RHEL is released under. They don't need a
| fair use ruling from the Supreme Court because they
| literally have a license that allows exactly what they did.
| The same could not be said for Google's actions in this
| case.
| jcranmer wrote:
| A summary for those who don't want to read the entire thing:
|
| This case was originally granted back in 2019. It was scheduled
| for oral argument in March 2020, but was postponed at the last
| moment until October because of the pandemic. Being postponed at
| the last moment, it was fully briefed well over a year ago, and
| the justices likely knew how they would rule in the case for a
| long time. (It's unclear how much of an impact oral argument
| actually has on influencing the decisions). That it took so long
| for a decision to come out--this is the last October hearing to
| get an opinion--strongly suggested to me that this would be a
| messy case with several overlapping concurring and dissenting
| briefs.
|
| It is not. It is a simple 6-2 decision, with a single majority
| opinion and a single dissenting opinion. I'm reading between the
| lines here, but it seems pretty clear that Breyer (the majority
| opinion author) does not believe that APIs are copyrightable in
| the first place, but doesn't argue that point as he probably does
| not have enough other votes to agree with him. It's plausible
| that Breyer had a lengthy section on why APIs weren't
| copyrightable but that was pulled due to the other justices in
| the majority rejecting it. We can't know what the voting would
| break down as, but a 3-3-2 breakdown of "API is uncopyrightable;
| API is copyrightable, but this is fair use; API is copyrightable,
| this is not fair use" does not strike me as implausible. (There's
| not much in favor of this breakdown, note: that I lay it out like
| this is as much wishful thinking as anything else).
|
| Thomas's dissent--I'll focus on that first--essentially makes two
| main arguments. The first is that API is copyrightable in its own
| right (Breyer's opinion assumes that it is for the fair use
| analysis but doesn't say that it is). The second argument is that
| Google's copying of the API cannot be fair use. A lot of that
| argument appears back-reasoned from "Google copied so much of the
| API and they made so much money off of it, how can it possibly be
| fair." In a broader sense, however, it's a different mode of fair
| use analysis than Breyer argues for. Thomas essentially views
| copyright as a property interest, and fair use is a narrow
| limitation on property interest. The API is an entity in and of
| itself here, so even though the API is a tiny fraction of both
| the original and reimplementing code, you need to look at the
| amount of the API itself that is being copied to judge how
| substantial a portion it is. Although when he turns to consider
| the impact that an independent implementation has on the market
| for the original, it's not the market of the API itself that
| matters but the market of the entire implementation.
|
| Now going back to Breyer's opinion, he treats fair use rather
| differently. First, Breyer essentially invokes the idea that
| different kinds of copyrighted material deserve different amounts
| of protection. He draws a distinction between declaring and
| implementing code, and notes that since only declaring code is
| being copied, it pushes the factor analysis much more towards
| being fair use than otherwise. In contrast to Thomas, Breyer
| notes that commercial use isn't automatically non-fair use, and
| lists a few examples of where commercial use can indeed be fair
| use. Also, Breyer pushes hard against the idea of copyright being
| about property interests, noting that the Constitution expressly
| provides that copyright is for the progress of science and arts.
| Whereas Thomas places primacy on the importance of the effect of
| the market, Breyer instead contends that it's the least important
| factor here.
|
| All the way back at oral argument, Thomas surprised me with the
| most insightful question: the fair use factors in the law are
| very explicitly a nonexhaustive list, so what other factors might
| exist to sway fair use analysis? At opinion time, Thomas is
| instead the one to declare that none other exist, while it's
| Breyer who rather strenuously comments that fair use analysis is
| not exhaustive, although he does not include any other factors in
| his analysis.
|
| What's the overall impact, then? APIs may or may not be
| copyrightable--SCOTUS does not decide. But Breyer essentially
| suggests that APIs have at best "thin copyright"--a lot of their
| use may be inherently fair use (the same analysis Breyer does
| here can reasonably be copy-pasted for a lot of API
| reimplementation cases). What's more radical is the effect it has
| on fair use analysis. Breyer states that appeal courts have to
| reconsider fair use on appeals if juries find a use to be fair or
| not (that's an easy part of the opinion to miss). Breyer upends
| the traditional notion of how to balance fair use factors yet
| again. Essentially, he suggests that the analysis of fair use is
| dependent in large part on what kind of work is being copied, and
| the balancing is dependent on the kind of work. He also rejects a
| lot of the traditional emphasis on market or potential market
| analysis for fair use. This is somewhat disclaimed for wider
| application to non-code cases, but you can bet there is now going
| to be _a lot_ of appeals surrounding fair use over the next few
| years.
| whatshisface wrote:
| Google's an LLC?
| gjsman-1000 wrote:
| After a restructuring, Google is an LLC owned by Alphabet Inc.
| (the publicly listed organization).
| bsimpson wrote:
| It's interesting to me that they ruled that APIs are
| copyrightable, but that copying them is a fair use.
|
| In what circumstances would non-fair-use copyright then apply?
| mlindner wrote:
| They didn't actually say whether APIs are copyrightable, just
| that they would assume it for sake of argument and test to see
| if the fair use test was sufficient. They found the fair use
| test sufficient so they didn't investigate whether it was
| copyrightable or not.
| bsimpson wrote:
| > In 2014, a federal appeals court ruled that the APIs could
| be subject to copyright in a controversial decision
| overturning a ruling by Judge William Alsup. (The Supreme
| Court declined to hear Google's appeal the following year,
| letting the appellate ruling stand.)
|
| - https://www.theverge.com/2021/4/5/22367851/google-oracle-
| sup...
| tyingq wrote:
| The HN discussion from 2016 (Jury finds for Google):
| https://news.ycombinator.com/item?id=11781053
|
| From 2018 (Oracle revives matter via appeal):
| https://news.ycombinator.com/item?id=16688521
|
| Edit: Fixed, had written "Jury finds for Oracle", which was NOT
| what happened in 2016. Argh.
| caf wrote:
| As both that thread title and the Supreme Court opinion say,
| the jury found in favour of Google.
|
| They were then overruled by the Federal Court, which has now in
| turn been overruled by the Supremes.
| xxpor wrote:
| Federal Circuit, not Federal Court, just to clarify.
| tyingq wrote:
| Edit: Heh, yep. I was blind to it, fixed, thank you!
| orra wrote:
| You misunderstand.
|
| It is a change in decision from the appeals court, not a
| change from the jury's decision.
| caf wrote:
| I think you maybe typoed your comment then, it says the
| jury found for Oracle.
| [deleted]
| politelemon wrote:
| I'm unfamiliar with the legal system (judicial system?). I had
| thought that the jury's findings were final. Am I understanding
| correctly that the case still went to the Supreme Court of the
| US, and now that court finds in favor of Google.
|
| What happens after this, more appeals or is this like a proper
| static const readonly final?
| gjsman-1000 wrote:
| In the US, the Supreme Court is the static const readonly
| final. It's over. There is literally no route of appeal or
| any way Oracle can keep this case going without a whole new
| lawsuit. The Supreme Court can elect to make a ruling and
| then send it back to a smaller court _if they choose_ for
| final assessment, but they did not do that here, making this
| ruling definitive.
| sircastor wrote:
| > In the US, the Supreme Court is the static const readonly
| final
|
| This made me laugh out loud. Thanks
| bzbarsky wrote:
| Well, more precisely: they definitively ruled that (a) a
| judge can decide whether a use is fair use and (b that this
| is fair use. Then they remanded the case to lower courts to
| decide what that means in terms of what happens next in
| this case.
| cowmoo728 wrote:
| Oracle (or some other company) can bring another case. It
| has to be different enough that it isn't immediately struck
| down based on precedent, but similar enough that a ruling
| would require appealing to the Supreme Court and force them
| to overturn or invalidate the Oracle v Google precedent.
| The chance of this happening is negligible, but this is
| basically the conservative plan for getting the Supreme
| Court to overturn the Roe v Wade precedent.
| jcranmer wrote:
| Sometimes SCOTUS explicitly suggests in an opinion that
| it's time to overrule precedent but they don't want to do
| so in that case.
|
| Most recently (that I'm aware of) is South Dakota v
| Wayfair. SCOTUS previously held that states couldn't
| impose sales tax on out-of-state companies. Subsequently,
| many states imposed "use taxes" which are essentially
| sales taxes paid by consumers on purchases they didn't
| pay sales tax already to get around this. Colorado passed
| a law which required out-of-state companies to
| essentially provide sales tax computation information to
| Colorado (but not sales tax itself), and Kennedy noted in
| his concurrence that maybe it was time to revisit the
| sales tax precedent. So South Dakota went ahead and
| passed a sales tax on out-of-state companies in direct
| violation of previous precedent, and SCOTUS promptly
| overturned that precedent when it heard the case.
| holtalanm wrote:
| IANAL, but I believe what the US Supreme Court says is final.
| There isn't any appellate court for the highest court in the
| land.
| nikanj wrote:
| Realistically, both Google and Oracle are 800lb gorillas and
| the battle will continue via lobbying legistlators, if not
| court appeals. It's very hard to believe Oracle would just
| keel over and give up.
| gpm wrote:
| Congress can't make retroactive laws, this case is
| basically done and Google won't have to pay for their use
| of Java that occured/occurs prior to the passing of a new
| law. Oracle doesn't have a vested interest in ruining
| copyright for everyone in the future if they can't get past
| damages out of it. That would hurt themselves as much as it
| would hurt everyone else.
|
| I'm pretty confident that Oracle rolls over on this issue
| permanently.
| DiabloD3 wrote:
| Generally, the Supreme Court finds narrowly on a specific
| point of friction in the case of a lesser court, answers the
| question, and kicks it back to that court, as a final answer
| for that very specific thing.
|
| The point in this case was, can Oracle overturn the "phone
| books cannot be Copyrighted" concept baked into tech law by
| the IBM v Compaq BIOS case. Seems the Supreme Court finally
| told Oracle the collection of method signatures from the Java
| base API are, indeed, a phone book.
| throwaway8581 wrote:
| You are just totally wrong, the majority did not issue a
| ruling on copyrightability. It just said that _even if the
| API is copyrightable_ Google 's actions were "fair use,"
| which is a legal doctrine allowing some use of copyrighted
| works without a license.
| abrodersen wrote:
| A jury's findings are final only in determining the facts of
| the case. The actual legal implications of those facts can
| still be appealed, reviewed, and modified.
| bxparks wrote:
| I think the question about overturning the jury is directly
| addressed in the linked PDF, whose Syllabus is surprisingly
| easy to read:
|
| > Re- viewing courts should appropriately defer to the jury's
| findings of un- derlying facts, but the ultimate question
| whether those facts amount to a fair use is a legal question
| for judges to decide de novo. This approach does not violate
| the Seventh Amendment's prohibition on courts reexamining
| facts tried by a jury, because the ultimate question here is
| one of law, not fact. The "right of trial by jury" does not
| include the right to have a jury resolve a fair use defense.
|
| I'm not a lawyer so I don't know exactly what this means,
| other than the SCOTUS saying that it can override the jury
| decision.
| voxic11 wrote:
| The jury is final on questions of fact. On questions of law
| the appellate and supreme courts can overrule the trial
| court.
| curryst wrote:
| You understand correctly. The jury's decision isn't final
| (and I thought this was ruled on by a judge directly, instead
| of a jury, but I could be wrong). You can appeal pretty much
| any case to a higher court. I don't know the order, but it's
| not uncommon for cases to appeal to a higher court several
| times. I.e. a verdict is rendered in a county court; you
| don't like it, so you appeal to the state court. State court
| still doesn't give the decision you want, so you appeal to
| the Supreme Court.
|
| It's worth noting that the higher court can reject your
| appeal. You're not entitled to be seen by the higher court,
| and if you can't come up with good grounds for why the lower
| court was wrong, the appeal will be rejected. The Supreme
| Court rejects a fair number of appeals (I think the majority
| of cases).
|
| This is final though. There is no higher court than the
| Supreme Court to appeal to. At this point, the only reason it
| would change is if the laws change, or the Supreme Court
| reverses their decision later. It's extremely rare that they
| whole-hog reverse a precedent that they set, though.
| jcranmer wrote:
| > The jury's decision isn't final (and I thought this was
| ruled on by a judge directly, instead of a jury, but I
| could be wrong).
|
| The idealized rule is that the jury is the final arbitrator
| of matters of fact, while judges (and appeal courts) decide
| matters of law. Ideals don't match reality cleanly,
| especially on matters like fair use which is "mixed fact
| and law." But additionally, you can sometimes appeal
| matters of fact by arguing that no reasonable jury could
| have reached the facts as it did (these are very rare, as I
| understand it, except in situations where mixed fact/law
| comes into play).
|
| Some other points you're missing. First, you have to appeal
| on particular failures of law; you can't just appeal that
| you don't like the decision. In particular, if you try to
| appeal past the appeal court to a higher court, you can
| only make arguments that you made to the appeal court.
|
| Another important thing is that appeal courts can push the
| case back down to the lower court to redecide based on
| clarifying law. That's what happened here, essentially.
| Google won on the trial, Oracle appealed saying that the
| judge incorrectly ruled that the API wasn't copyrightable
| (and the appeal court agreed with Oracle), which told the
| lower court to try it again with the correct ruling on API
| copyrightable. Google tried to appeal SCOTUS, who refused
| to hear it. Lower court had another jury trial, which found
| Google had fair use. Oracle appealed again to appeals
| court, which found that the jury couldn't have thought it
| fair use. Google appealed to SCOTUS, which just now
| disagreed with the appeal court.
| bzbarsky wrote:
| This does not match my understanding of the situation
| (though note: I am not a lawyer; take everything that
| follows with a grain of salt).
|
| My understanding is that a jury's primary task of deciding
| on the facts is final. The facts in a case like this seem
| to me to be things like deciding whether Oracle in fact
| holds the copyright, and whether Google's copy of the API
| is sufficiently similar for that copyright to apply to
| Google's copy.
|
| Now as far as appeals go, you can appeal whether the trial
| was done properly, such that the jury was able to do its
| fact-finding job correctly. You can appeal what was then
| decided based on those facts (e.g. sentencing). You can
| appeal meta-questions, like whether a particular decision
| is a "finding of fact" or not to start with.
|
| The question of whether "fair use" is the sort of thing
| that is decided by judge or jury is apparently somewhat
| contentious in this case; I just found
| https://www.law.uw.edu/wlr/print-edition/print-
| edition/vol-9... describing some of the issues there.
| Today's decision refers to this as well: it's (c) under
| "Held":
|
| > (c) The fair use question is a mixed question of fact and
| law. Re- viewing courts should appropriately defer to the
| jury's findings of un- derlying facts, but the ultimate
| question whether those facts amount to a fair use is a
| legal question for judges to decide de novo. This ap-
| proach does not violate the Seventh Amendment's prohibition
| on courts reexamining facts tried by a jury, because the
| ultimate question here is one of law, not fact. The "right
| of trial by jury" does not include the right to have a jury
| resolve a fair use defense. Pp. 18-21.
|
| which sure sounds like the Supreme Court effectively
| decided that the final determination of whether a use is
| "fair use" or not should be made by a judge, not a jury.
| Then they proceed to make that determination in this case
| in holding (d).
| thedevelopnik wrote:
| The latter. Once the Supreme Court rules, that is the law of
| the land, unless Congress/President pass a new law
| substantially changing things, which could then have
| challenges go back through the judicial process.
| isanengineer wrote:
| I didn't understand that either, but I found a good
| explanation on page 2:
|
| "The fair use question is a mixed question of fact and law.
| Reviewing courts should appropriately defer to the jury's
| findings of underlying facts, but the ultimate question
| whether those facts amount to a fair use is a legal question
| for judges to decide de novo. This approach does not violate
| the Seventh Amendment's prohibition on courts reexamining
| facts tried by a jury, because the ultimate question here is
| one of law, not fact. The "right of trial by jury" does not
| include the right to have a jury resolve a fair use defense."
| pm90 wrote:
| They could file a new lawsuit but this specific complaint is
| effectively over.
|
| Considering that the votes were not close, I don't think
| Oracle would try again. Likely they will pursue a
| substantially different strategy to try and extort Google.
| marc__1 wrote:
| Oracle's response[1]:
|
| "The Google platform just got bigger and market power greater --
| the barriers to entry higher and the ability to compete lower.
| They stole Java and spent a decade litigating as only a
| monopolist can. This behavior is exactly why regulatory
| authorities around the world and in the United States are
| examining Google's business practices."
|
| - Dorian Daley, Executive Vice President and General Counsel,
| Oracle
|
| [1]https://www.prnewswire.com/news-releases/oracle-statement-
| re...
| xxpor wrote:
| Oracle is very clearly banking on their political ties with the
| GOP to save the company. Regulatory capture in its most
| disgusting form.
| gundmc wrote:
| "Only a monopolist would have the resources to fend off our
| blatant shakedown attempt."
| [deleted]
| AnimalMuppet wrote:
| Here, Oracle, let me break out the world's smallest violin...
| scriptproof wrote:
| The alternative would have been not using Java at all. That
| would have made attracting programmers more difficult at the
| beginning of the Android platform, but then, Java would have
| disappeared on mobiles, at least. I do not discuss why Oracle
| thinks is entitled to have of big chunk of the revenues of
| Android and the work of Google.
| Crontab wrote:
| Thank goodness.
| jxf wrote:
| While the result is a big relief, I think it's not as decisive as
| I'm noticing some headlines (and commenters) are claiming.
|
| One of the big open questions is "are APIs copyrightable?" The
| court skirted that question, and instead focused on whether it
| was fair use:
|
| > To decide no more than is necessary to resolve this case, the
| Court assumes for argument's sake that the copied lines can be
| copyrighted, and focuses on whether Google's use of those lines
| was a "fair use."
|
| That said, this case does establish a precedent that if your
| copying of an API is primarily for purposes of matching an
| interface so that developers can reimplement it, you're in fair
| use territory:
|
| > Google copied these lines not because of their creativity or
| beauty but because they would allow programmers to bring their
| skills to a new smartphone computing environment.
|
| I'll count that as a win, on balance.
| marcosdumay wrote:
| > That said, this case does establish a precedent that if your
| copying of an API is primarily for purposes of matching an
| interface so that developers can reimplement it, you're in fair
| use territory
|
| Well, if you can an API for any primary purpose that not making
| software compatible with the one you are copying, then it's not
| really an API. It's perfectly fine if you can't frame it and
| sell around as a painting.
| shadowgovt wrote:
| I'm not sure why it's claimed they skirted the question... If I
| understand correctly, the Court answered the question when they
| issued bench instructions that APIs _were to be considered_
| copyrightable.
|
| Is the difference that there's no SCOTUS precedent on the issue
| because it wasn't addressed in this case? Because (IANAL but)
| I'd assume the bench direction is itself precedent... In that
| if another circuit court tried to run a case as if the question
| was in the open, the Court would again ruler-slap them and say
| "No, assume APIs _are_ copyrightable, plain language of the
| law. "
| gpm wrote:
| They did not say that APIs were copyrightable, they said that
| if "we assume, for argument's sake, that [APIs are]
| copyrightable, [...] the copying here at issue nonetheless
| constituted a fair use".
|
| From page 1 of the opinion, i.e. the actual ruling, which
| follows the "syllabus" in the pdf. The syllabus is basically
| just a summary. It's page 5 of the pdf.
| shadowgovt wrote:
| I see; the difference is SCOTUS vs. circuit court of
| appeals precedent. I was referring to the decision of May
| 9, 2014 that overrulled the Alsup court assertion that APIs
| are not subject to copyright. But that decision was not
| from SCOTUS but from the appeals court for the circuit.
|
| Current status, if I understand correctly, is that SCOTUS
| has not weighed in on whether APIs may be subject to
| copyright, and precedent in (Edit: Ninth Circuit) should be
| that they are to be considered copyrightable (and, I
| suppose, "no precedent in this circuit or from the Supreme
| Court" in all other circuits).
| gpm wrote:
| I don't think federal circuit rulings on non patent
| matter are binding precedent anywhere? I could be wrong
| about that. I certainly doubt there binding precedent on
| just one federal district (and not either all the
| district courts in the relevant circuit, or all district
| courts period).
| monocasa wrote:
| Yeah, the CAFC rulings aren't precedent in the circuit
| courts were this would normally be appealed.
| grumple wrote:
| I think the focus on fair use is even better. It means that
| EVEN IF you can copyright the API, it doesn't matter because
| others can reimplement it. So not only can corps not stop that,
| but courts might rule later that the copyrights are totally
| invalid.
| jhanschoo wrote:
| > That said, this case does establish a precedent that if your
| copying of an API is primarily for purposes of matching an
| interface so that developers can reimplement it, you're in fair
| use territory:
|
| >> Google copied these lines not because of their creativity or
| beauty but because they would allow programmers to bring their
| skills to a new smartphone computing environment.
|
| It's even weaker than you think. It was important that Google's
| use of Java's API was on a non-competing product. It's still
| quite up in the air what happens if you provide a generic
| library using your competitor's API without licensing it from
| them.
| extropy wrote:
| How is J2ME not competing?
| [deleted]
| monocasa wrote:
| Because
|
| A) J2ME targeted feature phones.
|
| B) Google isn't accused of copying J2ME when you get down
| to it. The parts that make ME distinct from SE weren't
| reimplemented in Android's Harmony fork (looking strongly
| at javax.microedition), and a lot of packages that SE
| implemented that ME didn't were present in Android.
| sesuximo wrote:
| The dissent point out "non-competing" is a bit of a stretch
| as this affected contracts oracle had.
| notsureaboutpg wrote:
| The dissent really made me think that, as the law stands,
| Google is in the wrong here, and what everyone is really
| trying to do is figure out how to allow copying /
| reimplementing APIs since that probably makes business /
| programming / innovation easier.
| pfdietz wrote:
| Making APIs copyrightable is a GOOD thing. It means they aren't
| patentable.
| sn_master wrote:
| What does that even mean?
|
| Algorithms and logical constructs like computer code aren't
| patentable under US law if that's what you're talking about.
| extropy wrote:
| I'm not buying it. What you patent is a bunch of text that is
| clearly copyrightable.
|
| If you patent a method how to organize APIs, that would be
| perfectly reasonable. In fact we have a bunch of patents like
| that for networking stuff.
| ekianjo wrote:
| It's not an either/or.
| CogitoCogito wrote:
| Could you explain your line of thinking here a bit more?
| pfdietz wrote:
| https://patentlyo.com/patent/2017/05/overlapping-
| protecting-...
| wtallis wrote:
| Generally, a comment such as this should also include
| some words from _you_ about what kind of point you 're
| trying to make by referring to the longer work. I _think_
| you 're trying to use this blog post as evidence that
| patent and copyright protection are mutually exclusive,
| but from skimming this post it seems to only say that
| they _should be_ mutually exclusive, while the Federal
| Circuit apparently disagrees. So at the very least, you
| would need to also point out how this Supreme Court
| decision reaffirms the blog post 's position and strikes
| down the Federal Circuit on that question. But that seems
| to be far beyond the subject matter that the Supreme
| Court has actually ruled on today.
|
| And you still haven't addressed why anyone should prefer
| APIs to be covered by copyright rather than patent law,
| when patents have much shorter duration and are more
| easily challenged.
| pfdietz wrote:
| The blog post presents legal arguments why (with existing
| SCOTUS rulings) they should be considered separate. I
| could repeat all that, or just ask you to read it.
| williesleg wrote:
| The bigger story is Justice Thomas is saying Big Tech needs to
| be regulated like utilities.
| bobbyi_settv wrote:
| > One of the big open questions is "are APIs copyrightable?"
| The court skirted that question, and instead focused on whether
| it was fair use:
|
| Doesn't deciding that it's fair use specifically mean that they
| think it _is_ copyrightable? The fair use doctrine specifically
| refers to the use of copyrighted material.
| dragonwriter wrote:
| > Doesn't deciding that it's fair use specifically mean that
| they think it is copyrightable?
|
| No, deciding it _would be_ Fair Use _even if_ it was
| copyrightable means you can cutoff the process considering
| copyright.
|
| (Its perhaps useful to think of legal cases as consisting of
| a set of parallel questions connected by logic operators--
| once enough of them are resolved to reach a decision which no
| resolution on the others will change, the process is free to
| conclude without waiting for the others to be resolved.)
| AnimalMuppet wrote:
| No. "Assume it's copyrightable. It's still fair use." That
| means you don't have to answer "Is it copyrightable?" The
| Supreme Court generally prefers to not answer questions that
| they don't have to answer.
| shemnon42 wrote:
| So in programmer speak if
| (!isFairUse(workUnderInvestigation) &&
| copyrightable(originalWork)) {
| bigCopyrightPayout(); }
|
| Short circuit on the and operator. It's fair use, so
| copyrightable will not be evaluated. Evaluating
| copyrightable has an obervable side effect of creating a
| precedent.
| AnimalMuppet wrote:
| Yes, exactly that. Why do the && in that order? Because
| isFairUse(workUnderInvestigation) was a much less
| expensive operation than copyrightable(originalWork) for
| this particular value of originalWork.
| shemnon42 wrote:
| That is the order scotus considered it.
| AnimalMuppet wrote:
| Right, and that's _why_ SCOTUS considered it in that
| order. Deciding API copyright was a much bigger decision
| than deciding fair use.
| btilly wrote:
| _While the result is a big relief, I think it 's not as
| decisive as I'm noticing some headlines (and commenters) are
| claiming._
|
| It is even less decisive than you're saying.
|
| The fact that the Supreme Court decided not to overturn the
| decision of the Court of Appeals for the Federal Circuit that
| APIs are copyrightable means that binding precedent on every
| court except the Supreme is that they are. And for fair use,
| one of the statutory factors is the "effect" of the copying on
| the "market for or value of the copyrighted work."
|
| _That said, this case does establish a precedent that if your
| copying of an API is primarily for purposes of matching an
| interface so that developers can reimplement it, you 're in
| fair use territory:_
|
| The fact that one statutory factor points one way doesn't stop
| another from pointing the other. And part of their decision is
| the conclusion that Google's copying increased the value of
| Java. That will generally not be true when APIs get copied.
|
| In particular if I am trying to create a product that competes
| with yours, and I copy your API for the purpose of
| interoperability, I'm going to have an uphill battle claiming
| fair use. Because my product directly reduces the market for
| your product.
|
| To name some historically important examples, Microsoft copied
| the APIs for JavaScript from Netscape, Microsoft copied APIs
| from Lotus 1-2-3 for Excel, and Wine copied APIs from Windows
| for Linux. The outcomes famously were that Netscape went out of
| business, Lotus 1-2-3 was discontinued, and Linux became
| somewhat more viable.
| WalterBright wrote:
| Lotus' failure was more because they failed to port to
| Windows, betting instead on OS/2.
|
| Lotus was at a crossroads. DOS was obsolete, was the future
| OS/2 or Windows? They chose OS/2.
|
| Lotus was a big, cash rich company at the time. Their fatal
| error was not realizing they should have ported 1-2-3 to
| _both_ OS /2 and Windows. Then they would have been secure
| regardless of which prevailed.
| WalterBright wrote:
| Netscape went out of business because their browser crashed
| far more frequently than Explorer. I've heard all the sob
| stories, but I was sick of the constant crashing of Netscape,
| and so tried Explorer. Explorer crashed too, but not _nearly_
| as often.
| tinus_hn wrote:
| Microsoft had FrontPage create pages that crashed Netscape.
| WalterBright wrote:
| Netscape crashing on a web page is Netscape's fault.
|
| Similarly, if the D compiler crashes when compiling a D
| source file, it's the D core team's fault.
| dpe82 wrote:
| Netscape produced a browser that could be crashed by a
| malformed page.
| mceachen wrote:
| FWIW, Netscape got bought out by AOL, but not before it
| spun off Mozilla. https://en.wikipedia.org/wiki/Netscape
|
| It may be hard to believe, but the first iteration of
| Internet Explorer on Macintosh (back on System 8) was
| __solid__. IE, at least on PowerMacs, was way faster and
| more reliable than either NCSA Mosaic or Navigator.
| kibwen wrote:
| Hell, AOL still runs Netscape as a discount ISP, same
| logo since 1999 and everything: https://isp.netscape.com
| ekianjo wrote:
| Yup, I can clearly remember Netscape crashing very very
| often. It was definitely the worse browser.
| curt15 wrote:
| >The fact that the Supreme Court decided not to overturn the
| decision of the Court of Appeals for the Federal Circuit that
| APIs are copyrightable means that binding precedent on every
| court except the Supreme is that they are.
|
| Federal Circuit's ruling would only be precedent in the 9th
| circuit. As it does not have original jurisdiction in
| copyright disputes (only patent cases), it doesn't supercede
| any copyrightability rulings in other circuits, for instance
| the 1st circuit's holding in Lotus v Borland that the Lotus
| macros were not copyrightable as a "method of operation". And
| today's opinion cites Lotus v Borland several times even
| though the original 1996 Supreme Court case was deadlocked at
| 4-4.
| mdale wrote:
| Wine was not really as much of an organized commercial
| endeavor so was not as much of a target
| btilly wrote:
| _Federal Circuit 's ruling would only be precedent in the
| 9th circuit._
|
| No, not only 9th circuit.
|
| The Court of Appeals for the Federal Circuit is binding
| nationwide. And if the case includes claims about patents
| and/or trademarks, even if those specific claims are thrown
| out, then the Court of Appeals for the Federal Circuit
| becomes the court that the case is appealed to.
|
| Which is how this particular case wound up there in the
| first place.
| dragonwriter wrote:
| > No, not only 9th circuit.
|
| Not _even_ the 9th Circuit. For cases arising from thr
| 9th Cir., 9th Cir. case law binds the CAFC, not the other
| way around, on issues that are outside ofnthe subject-
| matter for which the CAFC has nationwide jurisdiction.
|
| > The Court of Appeals for the Federal Circuit is binding
| nationwide
|
| No, it's decisions are only binding nationwide on the
| issues within its special jurisdiction, which copyright
| is not. On other issues, it is instead bound by the case
| law of the circuit that would otherwise be responsible
| for the case, and notionally is just an interpreter of
| that circuit's case law. It's decisions on those
| collateral matters on cases brought before it because
| they also touch on one of the issues reserved to the CAFC
| aren't binding on any other court.
| AlexCoventry wrote:
| > issues within its special jurisdiction
|
| How are those issues defined?
| phonon wrote:
| https://www.law.cornell.edu/uscode/text/28/1295
| wtallis wrote:
| When ruling on aspects of a case that fall outside of
| their subject matter jurisdiction (eg. copyright rather
| than patents), the Federal Circuit is supposed to follow
| the local circuit's precedent, ie. rule how they think
| the Ninth Circuit would have ruled on those issues. And
| my understanding is that the Federal Circuit's rulings on
| eg. the copyright aspects of a case like this do not
| overturn Ninth Circuit copyright precedent and do not
| establish new copyright precedent _anywhere_ , not even
| the Federal Circuit (since in future cases they will
| again be required to apply the relevant local circuit's
| copyright precedents as they exist at that time).
|
| The Federal Circuit's copyright _decision_ is binding on
| the parties to the case at hand, but the _precedent_ for
| future cases is non-binding at best.
|
| This was one of the arguments that the FSF and SFLC put
| forth in their amicus brief recommending that the Supreme
| Court not take up Google's appeal of the API copyright
| question:
|
| > _The court below predicted, on the basis of no
| compelling evidence, that the Ninth Circuit would depart
| from settled existing law in a novel direction which, as
| amici supporting the petition have said at length, would
| be destructive alike of commercial certainty and freedom
| to implement, thus inhibiting the progress of science and
| the useful arts. Neither the Ninth Circuit nor any other
| regional Court of Appeals is likely to defer to this
| improbable supposition, so the error is largely self-
| limiting. Such erroneous predictions of other courts'
| holdings are not a suitable employment of this Court's
| scarce resources in review by certiorari._
| dctoedt wrote:
| IP lawyer here -- @wtallis's summary is how I understand
| the impact of the Federal Circuit decision as well.
| wtallis wrote:
| > Federal Circuit's ruling would only be precedent in the
| 9th circuit.
|
| I think it's even narrower than that: the Federal Circuit's
| ruling on non-patent aspects of the case isn't binding
| precedent outside of Oracle v. Google. District courts in
| the Ninth Circuit and the appeals court are free to ignore
| the Federal Circuit ruling in future cases and look to only
| rulings from the Ninth Circuit and Supreme Court as binding
| precedent.
| dragonwriter wrote:
| > The fact that the Supreme Court decided not to overturn the
| decision of the Court of Appeals for the Federal Circuit that
| APIs are copyrightable means that binding precedent on every
| court except the Supreme is that they are
|
| No, it doesn't. Because the Court expressly declined to
| examine the question, the CAFC decision is binding only where
| it would have been without the Supreme Court decision, i.e.,
| those courts bound by the CAFC's interpration of how Ninth
| Circuit law applies. As it turns out, that is exactly zero
| courts.
|
| The _reason_ the Supreme Court often likes to find the
| narrowest grounds possible for a decision is to _avoid_
| making more binding case law than is called for; giving the
| lower court rulings on all questions not addressed (including
| those the Supreme Court explicitly avoids) the same binding
| effect as the actual Supreme Court holding would defeat the
| purpose, and it is very much not how things work.
| halfmatthalfcat wrote:
| I wonder how this would effect things like Preact too, which
| for operability sake, uses the exact same API as React.
| anamexis wrote:
| In that specific example, I don't think it would really
| affect them, since both React and Preact are MIT licensed.
| thaumasiotes wrote:
| > both React and Preact are MIT licensed.
|
| Huh, I had no idea the React license wasn't still "you're
| free to use React unless you ever assert a patent against
| Facebook".
| Natanael_L wrote:
| One of the issues here is that it's not even clear under
| which license the API should be covered. Does the
| existing software license also cover the API, or must it
| be explicitly defined?
|
| What happens when an API is co-created by different
| software developers which each creates their own software
| under different licenses, through communications which
| themselves aren't explicitly licensed (like over email
| lists), and then summarize what they agree on in text
| instead of code (like the RFC process)?
|
| At no point have either one of them explicitly given
| permission to use their respective contributions under
| another license. Even if they agree that the RFC text is
| public domain, that technically do not extend to
| implementations of the API which it describes (as those
| are different works!). And there exists no official
| reference code with legal approval from all contributors,
| whose license could be adopted by other developers.
|
| It would be such a mess...
| 0df8dkdf wrote:
| Not a lawyer, seems like this case will hold precedence
| then. The whole idea of copy righting an API is insane.
| iamcreasy wrote:
| I suppose Supreme court decision over this matter sets
| precedence for any future cases.
| iamcreasy wrote:
| Why the downvote? You can read more about it here:
| https://en.wikipedia.org/wiki/Precedent
| pdoconnell wrote:
| In general the court seems to try to go to the easiest decision
| point in a case. The copyrightability of an API is less
| relevant if the user being sued should win regardless because
| of fair use. This is better than a plurality decision where
| there's multiple reasonings on API copywrite that make future
| decisions difficult. Here at least the court gives guidance on
| how to think about evaluating fair use in this context, which
| lower courts can apply.
| hyperpallium2 wrote:
| Always seemed crazy to me that interoperability was ever in
| doubt.
|
| Copyright in a private, internal API seems reasonable in
| principle.
|
| RIP kotlin-first on android?
| jcranmer wrote:
| I noticed that comment too early on. Breyer's opinion comes
| pretty close to saying "it's at best 'thin copyright'" but the
| fact that it's explicitly disclaimed makes me think that this
| is to some extent a compromise position: rather than arguing
| about whether SSO is copyrightable and risk a bigger split,
| just concede it because the fair use is sufficient here.
| anonymouse008 wrote:
| > Google copied these lines not because of their creativity or
| beauty but because they would allow programmers to bring their
| skills to a new smartphone computing environment.
|
| I'm waiting for an ambitious attorney to figure out how to
| frame this as poaching talent from an ecosystem to bring to
| another.
| kyrra wrote:
| Thomas's dissent explicitly points this out. Without diving
| into "are APIs copyrightable?", the majority are skipping what
| should have been evaluated first before saying if they were
| fair-use or not.
| gnopgnip wrote:
| APIs and most code is copyrightable, they are original works
| of authorship fixed in a tangible medium, all that is
| required by he Copyright Act of 1976. It doesn't look like
| either party in this case claimed the code was not eligible
| for copyright either
|
| If they shouldn't be copyrightable because the world would be
| better off, interoperability between business is harmed, it
| is up to congress to change the law. Historically legislation
| like this harms smaller companies mostly, larger companies
| can better afford to deal with the requirement to license or
| the cost/work required to stick to fair use or litigate over
| it, so the larger companies that can afford to lobby to
| change the law aren't going to want them changed.
|
| This case certainly sets precedent that API re-implementation
| can be fair use, not that it always is. Fair use is very fact
| specific, based on a four part test where having one part in
| favor can be fair use, and having three parts in your favor
| can still be infringement. A future case with products that
| would have a more substantial effect on the market of the
| original work, or had more of the original work reused than
| was strictly necessary could very well be infringement. With
| regards to "the amount and substantiality of the portion
| used" in this case less than 1% of the original code was
| copied just measuring the lines of code. Substantiality is
| harder to put a number on, but arguably it was only a small
| portion of the original product. This is a very low and for
| many other APIs a more substantial portion would need to be
| copied to be useful. The precedential value of this case is
| unclear without either the law changing, or further
| litigation.
| amalcon wrote:
| That point is super weird, because the court has a tendency
| to make the narrowest ruling that is able to resolve the case
| in front of them. Clearly the fair use question is more
| narrow than the question of copyrightability of APIs.
| [deleted]
| lostcolony wrote:
| Yeah, but Thomas said "The majority can not square it's
| fundamentally flawed fair-use analysis with a finding that
| declaring code is copyrightable".
|
| Which is obviously false. A fair use analysis can -only- take
| place if the assumption is the code is copyrightable; if the
| majority had first decided the code was not copyrightable,
| fair use is immaterial.
|
| Thomas' argument, if followed, would either have led to this
| same decision, or would make the opposite point he was trying
| to make.
| notsureaboutpg wrote:
| If you read the whole dissent, it makes sense. He's saying
| that the fair-use analysis the majority used would render
| any kind of declaring code de facto not copyrightable,
| since the majority is essentially saying that the traits of
| declaring code make any implementation of it fair-use by
| default.
| avs733 wrote:
| Over the years, the STEM professional in me has become
| increasingly intrigued by the ways in which law progresses
| because it is so fundamentally different from my preferred
| method of making sense of the world.
|
| Within that, and with my incredibly limited understanding
| of how law evolves in the courts...it seems like Thomas
| says demonstrably incorrect things more frequently than I
| am comfortable with.
| [deleted]
| GavinMcG wrote:
| Why should it have been evaluated first?
|
| I understand the intuition you're getting at: logically, the
| first question could make the second irrelevant. But if the
| second question resolves the issue even when the first is
| construed in favor of the other party, what's the rationale
| for demanding the court focus on the first question?
| ghaff wrote:
| IANAL, but I can imagine something like the following:
|
| A. We decide this is fair use based on the small number of
| LOC used and call it a day
|
| B. OR we can decide that APIs are not copyrightable even
| though they're self-evidently creative works because of the
| importance of interoperability based on something something
| related to Borland v. Lotus, a case that we couldn't agree
| on the last time it came up.
|
| Hey folks. Let's do A.
| Gh0stRAT wrote:
| While I agree that APIs should not be copyrightable, the
| Supreme Court has been criticized for "legislating from
| the bench".
|
| Avoiding the temptation to set bigger and more far-
| reaching precedents than is strictly necessary for the
| case at hand avoids giving the impression that the
| judicial branch is doing the job of the legislative
| branch.
| hluska wrote:
| With what I know of Amy Coney Barrett, I'm very surprised
| she had no part in this decision. You did an absolutely
| wonderful job of explaining her whole feeling on the
| bench in two paragraphs. Seriously friend, that's some
| excellent writing - excellent excellent job!!
| GavinMcG wrote:
| The case was argued weeks before Barrett was confirmed to
| the court.
| hluska wrote:
| That's the perfect explanation!!! :) I'm dumb - thanks so
| much!!!!
| hctaw wrote:
| This is something I struggle with, personally.
|
| I have fundamental problems with an unelected council
| that serves for life creating law.
|
| However, we have an extremely inefficient form of
| Government that doesn't allow for quick adaptation, and
| legal questions will arise tomorrow that did not occur to
| legislators today. The courts are supposed to help
| resolve any ambiguity.
|
| The question over whether or not APIs are copyrightable
| is, however, not a question of ambiguity. APIs are
| software (or documentation, or source code, etc), and any
| category you place them into is copyrightable under the
| current law. If we don't want APIs to be copyrightable,
| then they must have explicit exemptions carved out in the
| law. The courts are bound to consider an API as
| copyrighted right now, and the only question is whether
| violating that copyright is fair-use.
|
| I think the Court did the right thing in skirting the
| question. That's up to legislators, the Court cannot
| help. We need fundamental reform of IP protections for
| software anyway.
| sprayk wrote:
| Slow legislation is a feature rather than a bug. Less
| opportunity for reactionary laws based on emotion or a
| collective misunderstanding of events that we later
| regret. It's not a perfect deterrent, obviously, e.g. the
| Patriot Act
| ClumsyPilot wrote:
| Cipyright law needed reform for like 40 years. Thre is
| slow, and there is dysfunctional
| ghaff wrote:
| However, the main reform that people are asking for is a
| shortening of copyright terms which really isn't a factor
| that plays into this case or, for the most part, with
| computer software generally. One can imagine copyright
| reform that broadly and explicitly exempts interfaces
| from at least copyright protection but that has generally
| not been one of the top issues historically.
| TimTheTinker wrote:
| > We need fundamental reform of IP protections for
| software anyway.
|
| That really is the root issue here. So many problems
| we're seeing (Pai's clownshow in the FCC, SCOTUS
| legislating from the bench, federal agencies trampling
| citizens' rights, etc.) stem from the legislative branch
| _abdicating_ their authority to third parties -- the
| librarian of Congress, the FCC, SCOTUS, and even (by
| legal reference) professional organizations and laws in
| other countries. It 's ridiculous.
|
| A first principle of a democratic government is that
| citizens can soon fire someone whose legislation and/or
| executive decision they do not like. We would all have
| voted Pai out if we could have... but he shouldn't have
| had the power to do what he did in the first place
| (remove network neutrality rules). Congress gave him that
| power - which I would argue was an abdication of
| authority vested in _them_.
| akiselev wrote:
| _> Congress gave him that power - which I would argue was
| an abdication of authority vested in them._
|
| Legislators assigning regulatory power to bureaucratic
| agencies is one of the cornerstones of modern democracies
| - it wouldn't work otherwise. Many of our legislators are
| barely qualified to send their own emails, let alone
| decide what is a telecom utility or how much ppb in
| drinking water is safe for a toxic chemical. Assigning
| that power to regulatory agencies allows experts to
| decide those issues in a neutral setting.
|
| Pai's FCC aside, that structure prevented significant
| disruptions in the last four years and our country
| continues to function despite decades of increased
| partisanship and deadlock at the highest level.
| TimTheTinker wrote:
| > it wouldn't work otherwise.
|
| Agreed that regulatory agencies are indispensable. But
| their job is to _carry out_ the law, not _make_ the law.
| Of course, the law has to delegate some decision-making
| responsibility to them -- the law can 't make every
| decision ahead of time. But (a) the law can codify
| _principles_ that regulatory agencies must uphold, and
| (b) lawsuits can be filed when someone disagrees that a
| principle has been accurately upheld -- the courts can
| decide.
|
| We as a country ought to be arguing and disagreeing about
| _principles_ , and the results (decided by legislators
| who are under the gun of potential non-reelection) ought
| to be codified as laws. A lack of _principle_ in congress
| and in law is what really causes this abdication and
| delegation of authority.
|
| An ideal legal corpus represents (as much as possible) a
| simply and directly expressed set of _principles_ under
| which the country operates.
| gwright wrote:
| > regulatory agencies allows experts to decide those
| issues in a neutral setting
|
| It is difficult to talk about "regulations" in the
| abstract but I would suggest that many regulations aren't
| about a perfect solution devised by an expert. They are
| more often about finding a tradeoff, a balance between
| competing goals. Those sorts of decisions can be informed
| by "expert" knowledge, but I think it is a mistake to
| think that domain experts are necessarily best positioned
| to resolve tradeoffs in public policy.
|
| I'm not arguing against expert knowledge being
| incorporated into construction of regulations -- just
| pointing out that expert knowledge may be necessary but
| not sufficient to finding a workable public policy.
| vkou wrote:
| I fear that you will remain disappointed, because no
| prescriptive specification of law written by legislators
| can be detailed enough to catch every edge case.
|
| If your democratically elected legislators don't like a
| bench ruling, they are free to make a new law that
| specifically overrides that ruling. The legislature is
| the ultimate source of authority in the land. The courts
| only have a bit of wiggle room in interpreting unclear
| statutes.
|
| The system is designed well. Unfortunately,
| democratically elected legislators at the moment would
| rather obstruct, wreck, and go on wild-ass conspiracy
| rants, than legislate.
|
| If that legislature spent half the time it complains
| about activist judges actually drafting law, it would
| have nothing to complain about. If you, as a constituent
| are unhappy about the current state of affairs, vote in
| legislators who are willing to do their job.
| spacemanmatt wrote:
| AFAIK, the Court's overt mission is to interpret and
| regulate the intent of Congress. They literally must
| legislate from the bench where Congress has left them an
| obligation to do so. And Congress can legislate when they
| feel the Court has taken too much liberty with
| interpretation or regulation.
|
| But I really do think this case falls squarely inside the
| parameters of "interpretation" as most members would see
| it.
| azernik wrote:
| That is part of the dynamic. More importantly, though, a
| narrow decision makes a broad decision easier. If some
| justices think the code isn't copyrightable, they can
| increase their voting power by agreeing to set a less
| sweeping precedent that more justices agree with.
| dctoedt wrote:
| > _Hey folks. Let 's do A._
|
| In an earlier concurring opinion when he was on the D.C.
| Circuit -- i.e., before joining the Supreme Court as
| Chief Justice of the United States (his official title)
| -- John Roberts referred to "... the cardinal principle
| of judicial restraint -- if it is not necessary to decide
| more, it is necessary not to decide more ...." [0]
|
| [0] https://scholar.google.com/scholar_case?case=19278577
| 4326304...
| bcrosby95 wrote:
| This is what the Supreme Court does in general. They
| decide on the narrowest of rulings possible.
| btilly wrote:
| _But if the second question resolves the issue even when
| the first is construed in favor of the other party, what 's
| the rationale for demanding the court focus on the first
| question?_
|
| The main influence of the Supreme Court is in setting
| precedent. In the absence of a ruling from the Supreme
| Court, the previous ruling from the Court of Appeals for
| the Federal Circuit is binding precedent on the whole
| country that APIs are copyrightable. That means that the
| most important precedents set in this case are still an
| issue for the software industry.
| [deleted]
| dragonwriter wrote:
| > the previous ruling from the Court of Appeals for the
| Federal Circuit is binding precedent on the whole country
| that APIs are copyrightable.
|
| No, its not.
|
| The CAFC's interpretation of Ninth Amendment case law on
| copyrightability in this case (before and after the
| Supreme Court sidestepped it) is binding on no one except
| future courts hearing cases on issues and between parties
| so closely related to those in _Oracle v. Google_ that
| _res judicata_ rather than rules of precedent is the
| deciding factor
| azernik wrote:
| > In the absence of a ruling from the Supreme Court, the
| previous ruling from the Court of Appeals for the Federal
| Circuit is binding precedent on the whole country that
| APIs are copyrightable.
|
| This is not true - other circuit courts are free to set
| their own, conflicting precedent. Each circuit's
| decisions are binding only on its own judges, and
| suggestive but not binding on other circuits.
|
| Circuits deciding differently (a "circuit split") is
| uncommon, and considered urgent grounds for the Supreme
| Court to take up a test case to resolve the ambiguity;
| but it's not considered a "breaking" of precedent by
| either circuit, just a difference of interpretation for
| the Supreme Court to resolve
| btilly wrote:
| For most circuits what you say would be true. But the
| Court of Appeals for the Federal Circuit is special. As
| http://www.cafc.uscourts.gov/the-court/court-jurisdiction
| says, their jurisdiction is national and determined by
| subject matter.
|
| That said I do not actually know whether they would be
| binding on another circuit court. But they are definitely
| binding on all federal courts lower than that.
|
| However that question is sort of moot. It is extremely
| easy for the entity filing the case for infringement to
| include something about patent or trademark in the suit,
| which guarantees that you wind up in the Court of Appeals
| for the Federal Circuit. Where that ruling is binding.
| fnordprefect wrote:
| One of the big open questions is "are APIs copyrightable?"
|
| The Australian equivalent to the US Supreme Court considered
| this over 20 years ago, and imho got the correct result (not
| copyrightable): http://www.austlii.edu.au/cgi-
| bin/viewdoc/au/cases/cth/HCA/1...
|
| IMHO they got the Huffman table wrong, although arguably it was
| the result compelled by an overprotective approach.
| sandes wrote:
| > Those 11,500 lines, however, are only 0.4 percent of the entire
| API at issue, which consists of 2.86 million total lines
|
| This marks jurisprudence
| esarbe wrote:
| I'm so relieved. This could have forced such dramatic changes in
| how we develop software. And any other decision would have been a
| crippling blow to FLOS software.
|
| Now if we only could get the SC to invalidate software patents in
| general.
| ocdtrekkie wrote:
| This is a large scale defeat of the GPL and dual licensing, so
| I'm not sure how this could be anything but a sad day for
| sustainable open source development.
|
| If you're big enough and have enough lawyers, there's no reason
| to license software you want to build on.
| AnthonyMouse wrote:
| On the other hand, it's the sort of ruling that could make
| companies less skittish about using GPL software.
| ocdtrekkie wrote:
| Solely because the GPL may now be so weak nobody is worried
| about enforcement. If Google can so blatantly create a
| monopoly scale business by ripping off something instead of
| complying with the license or licensing it separately,
| there is no teeth to the GPL at all, and releasing your
| business' code under GPL is an existential risk.
|
| They might use the GPL software, but feel no compunction to
| either open source their own modifications nor pay for an
| enterprise license.
| AnthonyMouse wrote:
| Except that Google only copied the API, so how does that
| apply to anyone doing more than that?
|
| For that matter, how does that have anything to do with
| the GPL at all? If you distribute your software under a
| proprietary license instead, how does that affect whether
| anyone can reimplement your API? If somebody wants your
| implementation then they get it under your license. If
| all they want is their own implementation of your API
| then your license doesn't matter, does it?
| ocdtrekkie wrote:
| From a statutory standpoint, there is no difference
| between the API and the code in general, which the
| dissenting opinion highlights. So if fair use is granted
| for theft of copylefted code in a non-copyleft manner, it
| doesn't matter heavily whether that was "declaring code"
| or "implementing code".
|
| This ruling doesn't change that APIs are copyrightable
| code.
| esarbe wrote:
| The dissenting opinion is stupid. Thomas may be a bad
| justice, but he has even less of a clue about software
| devolopment. Of course there is a difference between an
| API and the code in general.
|
| This decision sidestepped the question of whether APIs
| are copyrightable or not by declaring that this
| particular instance was fair use.
|
| Reimplementing interfaces has always been fair-use, they
| are definitions. Re-Implementation of these interfaces
| has been a cornerstone of FOSS since its very beginning.
|
| > So if fair use is granted for theft of copylefted code
| in a non-copyleft manner, it doesn't matter heavily
| whether that was "declaring code" or "implementing code".
|
| I don't think these words mean what you think they mean.
| There was no theft and of course there is a difference
| between declaring code and implementing code.
|
| Shesh...
| ocdtrekkie wrote:
| > This decision sidestepped the question of whether APIs
| are copyrightable or not by declaring that this
| particular instance was fair use.
|
| This is incorrect, before fair use was tested,
| copyrightability was established, which is why the fair
| use defense, which is an exemption for copyright
| violation, was then determined. If you followed the
| various appeals and rulings this case entailed, you'd
| have to be aware of this.
|
| APIs are copyrightable, as this case has determined, but
| now the Supreme Court has also thrown out any reasonable
| definition of what is and isn't fair use.
| wnoise wrote:
| It's convoluted.
|
| Ninth Circuit courts held APIs weren't copyrightable. The
| Federal Circuit (which only had jurisdiction because of
| the thrown out patent claims) held that they were
| copyrightable. The majority of SCOTUS here explicitly
| said they weren't deciding copyright of APIs. Instead
| they looked at both cases and said: "either it isn't
| copyrightable, but even if it is copyrightable, that this
| is fair use." Either way, Oracle loses. Arguing in the
| alternative is a common legal pattern, as is ruling on
| the narrowest possible ground.
|
| Generally when a circuit court makes a ruling, it's only
| "binding" precedent on subsidiary courts within that same
| circuit. The federal circuit is weird though, as it
| doesn't have a geographical jurisdiction, instead it has
| a subject matter jurisdiction. If a case has patent
| claims (or a few other things), an appeal gets routed
| there.
|
| So, effectively, APIs are copyrightable if there is a
| linked patent claim in the same lawsuit.
|
| Courts can certainly use the Federal Circuit ruling as
| "persuasive" precedent, and rule the same way, but it's
| not binding, and it's not settled law.
| wtallis wrote:
| > So, effectively, APIs are copyrightable if there is a
| linked patent claim in the same lawsuit.
|
| I suspect the Supreme Court would not be happy if a
| pattern develops where companies include spurious patent
| claims in order to get their copyright case heard by the
| Federal Circuit instead of one of the other circuits.
| They won't want another mess like this case, and if the
| Federal Circuit again rules in favor of API copyright and
| against fair use, I would expect the Supreme Court to
| rule on the API copyright question directly rather than
| merely clarify the bounds of fair use as in this case.
| stale2002 wrote:
| > APIs are copyrightable, as this case has determined
|
| The supreme court explicitly refused to rule on whether
| code was copyrightable or not.
|
| The lower courts made conflicting rulings on that
| question. But the supreme court itself only assumed, for
| the safe of argument, that code was copyrightable, and
| did not rule on that question itself.
| curt15 wrote:
| GNU/Linux owes its very existence to the practice of
| reimplementing interfaces that this ruling now codifies.
| esarbe wrote:
| This ruling has nothing to do what so ever with the GPL.
| macspoofing wrote:
| How so?
| icegreentea2 wrote:
| How does this ruling interact with GPL?
| billsix wrote:
| Perhaps this
|
| https://github.com/JoshCheek/clisp/blob/master/doc/Why-
| CLISP...
| AnthonyMouse wrote:
| That's a different situation though. You're then
| distributing something intended to link with readline --
| not just implementing its API yourself but using its
| entire original implementation.
|
| What you could perhaps do is create your own
| implementation of the readline API distributed under a
| different license and then claim your program is intended
| to link against that, but how would you claim that if no
| such implementation exists? Whereas if you have to write
| your own readline implementation in order to use it then
| you still end up with a large incentive to avoid that by
| releasing your work under the GPL instead.
| izacus wrote:
| Can you explain?
| esarbe wrote:
| I don't see how this case has anything to do with GPL.
| bogwog wrote:
| > This is a large scale defeat of the GPL and dual licensing
|
| Can you elaborate on that? What does this have to do with
| those thing?
| ocdtrekkie wrote:
| Google had the option to use the OpenJDK and make Android a
| GPL-based platform. They did not want to. They could've,
| and tried to, negotiate a separate license, but simply
| decided to copy what they wanted instead, relying on their
| legal team to protect them.
| simonh wrote:
| I'm confused how not using the GPL version makes this
| relevant to the GPL.
| ocdtrekkie wrote:
| Dual licensing is a common reason to GPL your code:
| Letting people have and use the source under restricted
| terms, and paying for an enterprise license otherwise.
|
| If Google can steal the code from the GPL version and
| then just not obey the license or pay for an enterprise
| license, dual licensing is dead and no business will open
| source their code under a dual licensing model.
| esarbe wrote:
| Google did not steal code. Dual licensing is not a reason
| but a practice. Unlicensed use of code is still
| unlicensed and punishable by the terms of the license.
| Dual licensing still exists and will continue existing.
|
| Please.
| dang wrote:
| Threads are paginated for performance reasons (yes we're working
| on it), so to see the rest of the comments you need to click More
| at the bottom of the page, or like this:
|
| https://news.ycombinator.com/item?id=26699106&p=2
|
| https://news.ycombinator.com/item?id=26699106&p=3
|
| (If you've already seen a bunch of these, I apologize for the
| annoying repetition.)
| exabrial wrote:
| Sanity prevails. This is incredibly important for _literally
| every programming language_!
| burtonator wrote:
| Let's assume Google was in the wrong here - for the sake of
| argument.
|
| How would it been possible for Google to do this without just
| taking the API definitions.
|
| Could they have just use compiler errors?
| dpifke wrote:
| I found this section (pp. 33-34) particularly interesting:
|
| _...enforcement of the Sun Java API copyright might give Oracle
| a significant share of these funds. It is important, however, to
| consider why and how Oracle might have become entitled to this
| money. When a new interface, like an API or a spreadsheet
| program, first comes on the market, it may attract new users
| because of its expressive qualities, such as a better visual
| screen or because of its superior functionality. As time passes,
| however, it may be valuable for a different reason, namely,
| because users, including programmers, are just used to it. They
| have already learned how to work with it. [...]_
|
| _This source of Android's profitability has much to do with
| third parties' (say, programmers') investment in Sun Java
| programs. It has correspondingly less to do with Sun's investment
| in creating the Sun Java API. We have no reason to believe that
| the Copyright Act seeks to protect third parties' investment in
| learning how to operate a created work. [...]_
|
| _Finally, given programmers' investment in learning the Sun Java
| API, to allow enforcement of Oracle's copyright here would risk
| harm to the public._
|
| If one were to apply the above logic to anti-trust instead of
| copyright fair use, one might wonder if the Court could find harm
| to the public in certain behaviors of e.g. a monopoly email
| provider or monopoly social networking site.
|
| (A big argument against anti-trust enforcement against Google and
| others is that the Sherman Act is designed to protect consumers,
| not competitors.)
| teruakohatu wrote:
| > "Google copied approximately 11,500 lines of declaring code
| from the API, which amounts to virtually all the declaring code
| needed to call up hundreds of different tasks. Those 11,500
| lines, however, are only 0.4 percent of the entire API at issue,
| which consists of 2.86 million total lines. In considering "the
| amount and substantiality of the portion used" in this case, the
| 11,500 lines of code should be viewed as one small part of the
| considerably greater whole. As part of an interface, the copied
| lines of code are inextricably bound to other lines of code that
| are accessed by programmers. Google copied these lines not
| because of their creativity or beauty but because they would
| allow programmers to bring their skills to a new smartphone
| computing environment."
|
| Sanity prevailed! This judgment could have had devastating
| consequences and turned software development into a copyright
| nightmare.
| temp-dude-87844 wrote:
| I wouldn't celebrate a victory yet. As is often the case, the
| court's choice of tests simply will serve as a blueprint for
| others on how to avoid themselves being caught in the same kind
| of result.
|
| Based on this court decision, it's apparently fair use to lift
| someone else's API and use it to jumpstart programmer
| familiarity with your product, if the author of the API
| previously tried to achieve success in that narrowly-construed,
| retroactively-interpreted exact same market segment and wasn't
| very successful.
|
| I see a few things coming out of this. IP holder companies will
| become even more common: they will be used to hold copyright to
| one API and license it out to customers -- including
| independent companies that you would currently recognize as
| part of the same platform.
|
| But because the IP holder does not provide an implementation
| and therefore does not 'compete' in a market segment, any
| unlicensed use of it is necessarily infringing: there's no
| innate functionality with which one can interoperate under the
| doctrine of fair use.
| amelius wrote:
| > IP holder companies will become even more common: they will
| be used to hold copyright to one API and license it out to
| customers
|
| Not after this precedent, which says that APIs are free.
|
| What will happen: Intel licensing the i86 instruction set
| will not be possible from now on, same for ARM.
| EgoIncarnate wrote:
| This ruling doesn't really change anything with respect to
| CPU instructions. The fair use defense doesn't cover
| patents.
|
| Patents are what are generally what is used by Intel, etc
| to protect (and license) new CPU instructions and provide
| protection for novel ideas/inventions for up to 20 years.
|
| Copyright generally protects specific
| expressions/implementations of an idea and last up to 95
| years for corporate patents, or 70 years + the lifetime of
| the author for individual patents.
|
| For completeness there is also trademarks which cover names
| and logos which can last indefinitely, as long as they are
| in commercial use.
|
| The text of a CPU instruction specification would be
| covered by copyright, the algorithm for implementing the
| instruction by a patent, and the branding (ex: MMX) by
| trademark.
| Ericson2314 wrote:
| Say one black-box reimplements x86? Say one makes a
| "transformative work" with a number of extensions?
|
| I fail to see why an ISA is fundamentally different than
| a standard library.
| gwd wrote:
| > I fail to see why an ISA is fundamentally different
| than a standard library.
|
| As GP said, the difference is whether it's patented. If
| Sun had _patented_ parts of the API (or algorithms
| necessary to implement it), then Oracle would have
| another weapon against Google even after Google was
| granted a fair-use defense.
| Ericson2314 wrote:
| Sure I'm not disagreeing with the legal history, but on
| what merits is one patentable, and the other either fair
| use to reimplement or not even copywritable!!
|
| I could understand Intel having a CPU patent for specific
| CPUs, but an specific ISA?!
|
| A really interesting test case would be to implement an
| isomorphic encoding to x86 with same instruction widths
| and what-not such that it's trivial to convert binaries
| from one to the other, and modify compilers (especially
| the JIT ones).
| JumpCrisscross wrote:
| > _Not after this precedent, which says that APIs are free_
|
| No, it doesn't. It says the "fair use" doctrine covers
| copying an API's "task calling" system, _i.e._ nomenclature
| and ontology.
| my123 wrote:
| Those are protected by patents, not copyrights.
| dleslie wrote:
| Wow, that's an insanely brilliant evil business plan. And
| plausible, too.
|
| The copyrightability of APIs will have to be determined.
| [deleted]
| lumost wrote:
| Can't this argument be used to copy the x86 interface and avoid
| paying license fees to either Intel or ARM for the instruction
| set?
| monocasa wrote:
| The word on the street is that is primarily protected by
| patents, which explicitly protect against from scratch
| competing implementations, unlike copyright protection which
| only protects against verbatim copying of the original work.
|
| On the plus side though, they only get 20 years of
| protection. x86-64 in it's original form should be up for
| grabs pretty soon here.
| reactspa wrote:
| It is fascinating that code is now being measured
| quantitatively. Number of "lines of code".
| EvanAnderson wrote:
| Now? I've personally heard quantities of code measured in
| "lines of code" (or, thousands of lines of code-- "K-LOCs")
| going back to the mid-90's. An acquaintance who worked for
| IBM in the 70's said it dates back at least that far
| (measuring developer productivity in the "K-LOCs" they
| produce).
| CodeArtisan wrote:
| https://www.youtube.com/watch?v=GqFYsvxHZOs&t=1205s
|
| (start at 20:05 if timestamp fails).
| shimonabi wrote:
| This Ballmer clip is the first thing I think about when I
| hear K-LOC.
| mega_dingus wrote:
| See Mythical Man-Month published in 1975 -
| https://en.wikipedia.org/wiki/The_Mythical_Man-Month
| ChrisMarshallNY wrote:
| It's been going on since the 1960s (maybe longer).
|
| Personally, I think the best code is the code I don't
| write.
|
| A significant part of my refactoring, is removing as much
| code as possible, by tweaking algorithms, deriving common
| base classes, and removing unused code branches.
|
| Every line of code is a potential bug. The less code, the
| less bugs.
| BXLE_1-1-BitIs1 wrote:
| There's a number of times I added significant new
| function to programs while ripping out great gobs of
| code.
|
| My favorite was replacing a function call with a single
| character constant.
|
| Then there were two employers who demanded code
| proliferation (management incentives tied to KLOCs?).
| Didn't last long at either place.
| beckingz wrote:
| Negative lines of code are a good day's work.
|
| https://www.folklore.org/StoryView.py?story=Negative_2000
| _Li...
| ChrisMarshallNY wrote:
| Love that story!
| benburleson wrote:
| My first manager, when I was a young engineer at Raytheon
| would like a word.
| gabereiser wrote:
| It's 2021 and I still come across managers that use this as
| a metric.
| saalweachter wrote:
| It may be a poor metric, but it's not like we have any
| other metrics to measure code by.
|
| Well, "dollars / year", if you work in an industry where
| you can directly A-B test against revenue, but I think
| most of us are happiest _not_ knowing whether our
| particular lines of code are EV-positive.
| amalcon wrote:
| Number of lines is actually a pretty good (though imperfect)
| measure of how difficult a code base is to work with, which
| is why many developers are delighted by the opportunity to
| delete code.
| raverbashing wrote:
| I'm actually ok with that metric in this case as it's easy
| for judges to understand and it's actually a good proxy.
| lostcolony wrote:
| How else do you determine what amount infringes? One of the
| four factors is "The Amount or Substantiality of the Portion
| Used".
| sriku wrote:
| I suppose it makes sense from the perspective of copyright
| law, which protects artifacts. After all, one could say the
| same for quoting from a famous literary work .."ha now
| they're valuing literature in terms of number of words of
| prose!"
| ocdtrekkie wrote:
| The dissent clearly highlights the fallacy of the ruling,
| where it discussed the importance of the "heart" of the
| work, rather than the portion of exact lines copied.
|
| Aka, that you could clone Harry Potter's plot, characters,
| and story while not copying each word of the book verbatim,
| and it still be a copy of Harry Potter.
| gamblor956 wrote:
| To use your Harry Potter comparison, it would be like
| asserting that Magic Boy Adventures violates Harry
| Potter's copyright because one of the characters in MBA
| was similar to the Neville Longbottom.
|
| Or in other words, a tiny fraction of the original work
| would essentially be allowed to monopolize the entire
| space of works involving magical kids going to school.
|
| (And this is why Justice Thomas is widely regarded as the
| least competent justice of at least the past half
| century.)
| ocdtrekkie wrote:
| Incorrect, because as Justice Thomas states, the "heart"
| of the work being copied is at issue, not a given
| percentage. Neville Longbottom is obviously not the
| "heart" of what a Harry Potter book is.
|
| Presumably the issue would be if one wrote a book
| substantially about the same character as Harry Potter
| who went through the same plot events in significant
| detail, but only 0.4% of the sentences were identical and
| the main character's name was Barry.
| gamblor956 wrote:
| Incorrect, because the "heart" of the work is not being
| copied, and therefore, the entirety of Justice Thomas'
| dissenting opinion is just pointless blathering.
|
| Thomas would allow copyright on _code_ regardless of any
| creativity. This would _destroy_ the software industry.
| Anyone who is first in time would _monopolize_ entire
| swaths of software functionality.
|
| And that is what he wants. Thomas is an ideologue, and
| his sole goal in allowing the copyrighting of code is to
| destroy the tech industry. You can see it in the logic of
| his dissent, which would require the court to override
| _decades_ of settled case law all supporting the
| proposition that code and other functional expression is
| not copyrightable. _Even he notes that his entire dissent
| is nonsensical: "True, declaring code is 'inherently
| bound together with uncopyrightable ideas.'_
| drwiggly wrote:
| They do state, copy-write isn't the same in the
| programming world. Programming is always functional in
| nature, unlike a book.
| jayd16 wrote:
| >Aka, that you could clone Harry Potter's plot,
| characters, and story while not copying each word of the
| book verbatim, and it still be a copy of Harry Potter.
|
| Would that be a copyright infringement? Probably just
| trademark infringement at that point?
| zeroonetwothree wrote:
| It's generally not trademark infringement to refer to the
| actual thing the trademark refers to ("nominative use").
| This would actually be a claim unlikely to succeed unless
| you are intentionally claiming that are writing the true
| original Harry Potter stories.
| max-ibel wrote:
| Tell that to the Sir Arthur Conan Doyle estate :)
|
| I don't know if their beef is with copyright vs
| trademark.
| ocdtrekkie wrote:
| It would be trademark infringement to use the names, it
| would be copyright infringement to use the meaningful
| content of the plot and story.
| mattkrause wrote:
| Not sure that's correct.
|
| Copyright attaches to the actual text (illustrations,
| etc; whatever is "fixed in a tangible form"), not the
| ideas.
|
| You could write a story about a boy of humble origins who
| is whisked off to a special school, discovers he's
| special, and fights evil. There aren't that many original
| plots, after all....
|
| You'll only get into trouble if the main character is
| called Harry Potter of 10 Privett Drive, where he resides
| with his mother's sister and her awful family, and he
| later attends Hogwarts, etc.
| Phrodo_00 wrote:
| While true, there's been (imo wrong, as it breaks the
| Idea-expression dichotomy) expansion of copyright to
| things like characters[1].
|
| [1] https://en.wikipedia.org/wiki/Copyright_protection_fo
| r_ficti...
| maxlybbert wrote:
| I know of one legal blogger who complains that certain
| copyright lawsuits really ought to be trademark suits
| (e.g.,
| https://scrivenerserror.blogspot.com/2007/11/accio-
| lawsuit.h... ,
| https://scrivenerserror.blogspot.com/2005/05/fan-fiction-
| tan... ,
| https://scrivenerserror.blogspot.com/2005/05/fan-fiction-
| end... ,
| https://scrivenerserror.blogspot.com/2005/05/fan-fiction-
| tan... ). But the courts generally play along and accept
| "copyright" suits that seem to be judged on trademark
| principles (but punished according to copyright law).
| koolba wrote:
| Objective measures are better suited to uniform application
| of justice vs subjective ones.
| nullifidian wrote:
| An alternative take, which I'm sure won't be popular, is that
| now, with an interpretation taken to the extreme, a
| megacorporation can basically steal your (let's say a small
| startup's) platform (in case you refuse to sell it for ethical
| or some other reasons), by re-implementing it and investing
| much more resources which you don't have, to make it more
| attractive to customers.
|
| I'm ok with either decision, but, depending on how this
| precedent going to be interpreted, it could have far reaching
| consequences, maybe unintentional/undesired ones too.
| adrr wrote:
| Thats what patents are for. API is like designing your own
| custom plug to your device. You can't copyright that plug
| design, you can patent it its novel and new.
| nullifidian wrote:
| And if you are opposed to algorithmic/software patents it
| would be an unpleasant choice to make. Also, copyright is
| probably (I'm not sure) easier/cheaper to litigate, because
| it's much more evident when something is copied, compared
| to divinating whether something violates a patent or not.
| curt15 wrote:
| >An alternative take, which I'm sure won't be popular, is
| that now, with an interpretation taken to the extreme, a
| megacorporation can basically steal your (let's say a small
| startup's) platform (in case you refuse to sell it for
| ethical or some other reasons), by re-implementing it and
| investing much more resources which you don't have, to make
| it more attractive to customers.
|
| GNU/Linux, a free reimplementation of AT&T's Unix interfaces,
| is largely why commercial Unix isn't really a thing any more.
| nullifidian wrote:
| Yes, but the situation is a bit different -- the majority
| of UNIX rights owners were actually promoting open
| standards through initiatives like POSIX, X/Open, so the
| re-implementation did not violate the copyright. As far as
| I know SCO's suits were not about interfaces of any kind,
| and the Linux kernel uses C standard library and other
| posix compliant libraries as an interface.
| galphanet wrote:
| Ho you mean Amazon AWS?
| Frost1x wrote:
| I think that's _always_ been a threat. If a large business
| decides to target an area you develop a system for, you 're
| basically out of luck unless you have some novel IP that's
| difficult to replicate. You really have to have something
| niche, patent it, etc. otherwise you just roll the dice that
| massive entity X doesn't steamroll your livelihood out of
| business.
| nullifidian wrote:
| Well, before this decision in a situation like this you
| would at least be able to retain your existing customers
| who are already invested in your platform, due to API
| incompatibilities etc, but with the ability to painlessly
| re-implement platforms the large business would take your
| existing customers too, and reuse the platform momentum
| that you've built.
| tyingq wrote:
| Happens today, like AWS Elasticache and AWS Aurora. I do
| think you're right in that it will make those decisions
| easier. Particularly for AGPL/GPL things. Now they can be
| reasonably sure that cloning the end user facing API bit is
| "fair use".
| oconnor663 wrote:
| Question from a layman: Does "interoperability" as a concept
| have any legal relevance here? Like focusing on programmer
| skills seems kind of beside the point, which is really for two
| pieces of software to be able to interoperate.
| TinoDidriksen wrote:
| Yes, reverse engineering for the purpose of interoperability
| is one of the things explicitly allowed by laws such as DMCA.
| teraflop wrote:
| The decision talks about "interoperability" as a general
| concept, but neither the DMCA nor reverse engineering is at
| all relevant to its legal reasoning.
| kmeisthax wrote:
| There's already Ninth Circuit precedent in favor of it. For
| example, Sony tried to sue two commercial PlayStation
| emulator developers and the Ninth rejected the lawsuit on all
| counts (and one of those cases is even cited in this
| opinion).
|
| The court has to talk about programmer skills because Android
| (at least, the versions before they switched to OpenJDK) was
| not entirely source- or binary-compatible with Java SE
| programs. In fact, the reason why they couldn't license Java
| SE was that Sun insisted on Android being locked into
| compatibility in the first place. So this entirely represents
| an expansion of existing fair use precedent: now, not only
| does fair use apply to full reimplementations for the sake of
| interoperability, but also partial reimplementations made for
| the sake of programmer convenience.
| lostcolony wrote:
| Also speaking as a layman, but yes. Fair use has, as one of
| its four factors, the purpose and character of the use, to
| which interoperability is of definite relevance. It explains
| -why- the API was reused, even if the internals are entirely
| different. Not because it saved Google work, or there was
| some sort of competitive edge against Java SE to be gained by
| doing so.
| comex wrote:
| Yes, interoperability is relevant, because it affects the
| necessity of copying that particular code rather than making
| one's own substitute, which in turn affects fair use.
|
| But Google's lawyers (inexplicably, in my opinion) failed to
| talk much about the fact that many Java _libraries_ are
| interoperable between Android and Oracle Java, leaving the
| courts to think only in terms of full applications which are
| not interoperable. Thus the courts have treated this case as
| if the only benefit to Android 's reuse of Java was
| programmer familiarity.
|
| Thankfully, Google won anyway, so any defendant in a future
| case who can make a better interoperability argument will be
| in an even stronger position.
|
| Edit: For example, in the Federal Circuit ruling that the
| Supreme Court just overruled, they complain: "Indeed, given
| the record evidence that Google designed Android so that it
| would _not_ be compatible with the Java platform, or the JVM
| specifically, we find Google 's interoperability argument
| confusing. [..Google] points to no Java apps that either pre-
| dated or post-dated Android that could run on the Android
| platform." [1]
|
| [1]
| http://www.cafc.uscourts.gov/sites/default/files/opinions-
| or...
| iam-TJ wrote:
| Google didn't argue on interoperability since that would
| have torpedoed their core arguments that Android is a
| transformative work creating a new market outside of, and
| different from, Sun Java Standard Edition.
|
| To argue interoperability Google would have needed to copy
| the entire JAVA SE API.
|
| The key difference is that Java SE (designed for desktops)
| API was considered by Google mostly not required on
| smartphone/mobile devices envisaged for Android. Sun would
| only licence Java SE complete (Sun was the one wanting
| complete interoperability).
|
| To the extent the concept of interoperability enters into
| it, it was on the human side; the arguments were about
| leveraging existing programmer knowledge to the extent that
| Android's requirements were shared with and common to Java
| SE.
| wtallis wrote:
| > To argue interoperability Google would have needed to
| copy the entire JAVA SE API.
|
| Only if Google wanted to argue interoperability _as
| defined by Sun /Oracle_. I've never seen a coherent
| argument why Sun's TCK should be considered the sole
| authority on what degree of interoperability should have
| legal significance in this copyright case, particularly
| given that Sun's TCK was part of their _trademark_
| licensing program.
|
| And there are obvious reasons why a court would shy away
| from letting something like Sun's TCK be used as part of
| a significant legal test; for example, it's really
| awkward for legal purposes to define something as
| copyright infringement while it's a work in progress, but
| it suddenly becomes okay as soon as it attains the status
| of being 100% compatible and bug-free. It's also not
| clear how the law could reasonably handle a definition of
| interoperability that Sun/Oracle can unilaterally make
| into a moving target and add arbitrary requirements to.
| torstenvl wrote:
| Interoperability does have legal relevance, but _because_ of
| programmer skills. Part of the fair use analysis turns on the
| legitimate goal of allowing programmers to use their skills
| in Java on the new platform.
|
| IAAL but IANAIPL and most emphatically IANYL
| scj wrote:
| IANAL: Merger Doctrine is closest thing I'm aware of.
| hammock wrote:
| So if I copy the entire A volume of Encyclopedia Britannica,
| but leave B-Z alone, I'm good?
| franklampard wrote:
| No but it's okay to copy all the entry names in the
| encyclopedia and fill in the content yourself
| Ekaros wrote:
| I think all entry names in encyclopaedia would fall under
| collection of facts that is not copyrightable... Same goes
| for recipes. I don't see how list of words existing and
| being used would qualify as work under USA copy-right. The
| entries themselves though are likely in many cases
| protected, but likely not all.
| chris_wot wrote:
| Wikipedia already does this. For instance, there is
| currently a list of Australian Dictionary of Biography
| articles missing.[1]
|
| I maintain a reflist of women in the ADB who have no
| Wikipedia article.[2]
|
| 1. https://en.wikipedia.org/wiki/Wikipedia:WikiProject_Aust
| rali...
|
| 2. https://en.wikipedia.org/wiki/User:Chris.sherlock/Austra
| lian...
| benley wrote:
| This is an excellent metaphor but now I am curious, is it
| literally true?
| nickspag wrote:
| Probably not? The crux of the opinion seems to grant fair
| use because it enabled a "new and transformative use,"
| which is a box that a different line of encyclopedias
| doesn't seem to check.
| ant1oz wrote:
| Yes.
| shmageggy wrote:
| Two distinctions come to mind: the encyclopedia text
| doesn't have a "functional purpose" in the same way as
| the implementation of an API does, and thus there isn't a
| market of users who have pre-existing skills with
| encyclopedia entries that they could put to use if the
| entries were copied to another platform. In my non-
| lawyerly reading of the first bit of the decision it
| seemed they leaned on those aspects quite a bit.
| lostcolony wrote:
| Would have to be tested in court.
|
| Certainly, the fact that competing encyclopedias exist,
| and have for hundreds of years, with > 99% identical
| entry names (but of course, substantively different
| content), and that predicated not on any given invention
| or IP but rather the common use English language, would,
| I think, make the judges rather reluctant to rule
| differently even should there be 100% match in entries.
| franklampard wrote:
| Yeah I was giving an analogy similar to what Google is
| doing, but I am not sure of the legality of the exact
| case
| spacemanmatt wrote:
| are you clerking for Justice Thomas, perchance?
| d3ntb3ev1l wrote:
| So if Java had just bloated their code and those apis code
| footprint represented a larger % of the overall they'd be
| guilty? Or if Java trimmed a bunch of non essential packages
| into modules/extensions Google would be guilty
|
| It seems to me the judge is saying, "the house was full of 10
| tons of jewelry but the robbers only took 10 pounds so that
| isn't really stealing lol "
| 1-6 wrote:
| Now the jewelry stores will have to become smaller so that
| there will be 1-2 jewels per store. When something gets
| stolen, it'll be 50-100%.
| geodel wrote:
| More like 10 million pages of books, Reading 10K pages does
| not mean one stole all the knowledge.
| bschne wrote:
| I think this part here is important regarding your
| interpretation -- it's not just about loc
|
| > Google copied these lines not because of their creativity
| or beauty but because they would allow programmers to bring
| their skills to a new smartphone computing environment.
| xapata wrote:
| Who is this "Java" you're personifying?
|
| Perhaps the measurement should have been a count of bytecode
| instructions rather than lines of code.
| michaelmrose wrote:
| Copyright and fair use is a nuanced balance between giving
| copyright owners the ability to restrict the actions of the
| rest of society and encouraging the creation of works that
| will more than balance out the onerous restrictions
| undertaken. A situation not all of us even agree on.
|
| The class of actions classified as fair use describe
| situations where arguably society can loosen the reigns to
| substantial benefit to society without destroying the
| incentive to create.
|
| A classic example would be quoting books to discuss them. The
| free exchange of ideas greatly enriches society while
| encouraging not replacing readership.
|
| Reducing it to an analogy to physical property obscures
| instead of enlightens because it misses all the ways a
| copyright is different than a right to physical property.
| daniel-thompson wrote:
| > So if Java had just bloated their code and those apis code
| footprint represented a larger % of the overall they'd be
| guilty?
|
| Under the fair use doctrine, maybe. Fair use in the US is
| literally about being able to use "limited" parts of a
| copyrighted work without getting permission from the
| copyright holder. What is "limited"? It depends, but 0.4%
| could reasonably be called limited.
|
| > It seems to me the judge is saying, "the house was full of
| 10 tons of jewelry but the robbers only took 10 pounds so
| that isn't really stealing lol "
|
| Copyright and fair use apply to the creative substance of the
| work (in your example, the design on the jewelry, perhaps),
| not to physical instances of it (the actual pieces of jewelry
| in the house).
| outsomnia wrote:
| Yes... Sanity prevailed, no thanks at all to SCOracle.
| burnte wrote:
| Read Thomas' dissent, it'sabsolutely insane. He says how those
| 11k lines are basically 97.5% of Java's entire usefulness, and
| billions of dollars of value to Oracle from an Amazon deal.
| Absurdity.
| GavinMcG wrote:
| I agree with the majority here, but how is that crazy? One
| major point in the fair use analysis is that Android (for
| smartphones) did not directly compete with Java SE (for
| laptops and desktops). Showing that Android is a viable
| alternative for other Java uses, and did indeed supplant
| other Java contracts, seems relevant.
| jandrese wrote:
| Thomas lives in a weird alternative universe where logic
| works differently. His dissents are always a trip.
| burnte wrote:
| He really doesn, he and Scalia were the reliable crazy
| uncles of the court. Looks like Alito is trying to take up
| Scalia's mantle. I sear to god if Thomas had to rule on a
| runaway slave he'd rule for the slaveholder.
| esarbe wrote:
| Yeah. He's got a strange mind.
| sn_master wrote:
| What Amazon deal? Did Amazon pay Oracle to license the Java
| API?
| monocasa wrote:
| Yeah for the original Kindle. It's brought up in the
| court's decision.
| zucker42 wrote:
| It's also good that Breyer wrote this opinion, given that he
| was one of the two judges who dissented in Eldred v. Ashcroft
| almost 20 years ago[1]. Lessig called that opinion "perhaps the
| best opinion [Breyer] has ever written"[2] in his retrospective
| on the case.
|
| [1] https://en.wikipedia.org/wiki/Eldred_v._Ashcroft
|
| [2] https://www.legalaffairs.org/issues/March-
| April-2004/story_l...
| matheusmoreira wrote:
| > Google copied these lines not because of their creativity or
| beauty but because they would allow programmers to bring their
| skills to a new smartphone computing environment.
|
| Also known as compatibility and interoperability. I'm so happy
| to see that judges understand their importance.
| comex wrote:
| > Also known as compatibility and interoperability.
|
| Actually, not really. Both this ruling and the lower courts'
| rulings in the case operated under the strange assumption
| that Android was not interoperable with Oracle Java, leaving
| programmer familiarity as the only reason Google copied the
| APIs. For example, in the Federal Circuit ruling that the
| Supreme Court just overruled, they complain that Google
| "points to no Java apps that either pre-dated or post-dated
| Android that could run on the Android platform". True; but of
| course third-party _libraries_ often can run on both Android
| and Oracle Java, and their importance seems to have been lost
| on everyone involved in the case... including Google 's own
| lawyers.
|
| Thankfully, Google won anyway, so any defendant in a future
| case who can make a better interoperability argument will be
| in an even stronger position.
| mayank wrote:
| > This judgment could have had devastating consequences and
| turned software development into a copyright nightmare.
|
| It'd sure have made the practice of taking someone else's API
| and re-implementing the innards a lot more interesting:
|
| https://docs.oracle.com/en-us/iaas/Content/Object/Tasks/s3co...
| chris_wot wrote:
| The WINE and ReactOS guys must be cheering!
| hannasanarion wrote:
| It's a win for all open software. Torvalds and Stallman
| didn't ask Bell's permission before re-implementing Unix
| curt15 wrote:
| Why was this comment downvoted? Does GNU/Linux not
| largely reimplement proprietary Unix?
| LogicUpgrade wrote:
| > "Google copied approximately 11,500 lines of declaring code
| from the API, which amounts to virtually all the declaring code
| needed to call up hundreds of different tasks. Those 11,500
| lines, however, are only 0.4 percent of the entire API at
| issue, which consists of 2.86 million total lines. In
| considering "the amount and substantiality of the portion used"
| in this case, the 11,500 lines of code should be viewed as one
| small part of the considerably greater whole. As part of an
| interface, the copied lines of code are inextricably bound to
| other lines of code that are accessed by programmers. Google
| copied these lines not because of their creativity or beauty
| but because they would allow programmers to bring their skills
| to a new smartphone computing environment."
|
| > Sanity prevailed! This judgment could have had devastating
| consequences and turned software development into a copyright
| nightmare.
|
| This judgment is the equivalent of someone taking a movie
| script, shooting a new movie out of it without changing a word,
| and the court declaring this "fair use" of the script.
|
| Software development wouldn't have turned into a nightmare
| unless you decide to steal a platform. Which most people don't
| need to do in order to do their work.
| kmeisthax wrote:
| Your example is more like rewriting GCC in Rust and then
| claiming it no longer needs to be GPL. What Google did would
| be like writing a set of stock superhero character
| descriptions and then releasing them under a Creative Commons
| license so that other movie writers could use them in their
| movies.
| spacemanmatt wrote:
| Seems appropriate to create a burner account when you are
| this wrong and you know it. This is why many of us would like
| an easy ability to block greens.
| rrrrrrrrrrrryan wrote:
| > This judgment is the equivalent of someone taking a movie
| script, shooting a new movie out of it without changing a
| word, and the court declaring this "fair use" of the script.
|
| Ethics aside, as a viewer, it'd be kind of cool if this were
| a thing. Small-time movie makers might like it too.
| FlyMoreRockets wrote:
| Shot for shot remakes have been a thing for half a century.
| https://en.wikipedia.org/wiki/Shot-for-shot
|
| In fact, they've become a fannish pastime the past few
| years: https://www.theverge.com/2017/7/20/16006112/revenge-
| of-the-s...
| decker wrote:
| I think you missed the rationale for fair use.
| nickbauman wrote:
| Not a great analogy. People aren't looking to make
| "interoperable movies". But let's play that out for a moment.
| Would a copy of star wars with different actors, different
| scenic design, different music be much of a salable product?
| I don't think so.
|
| While I think it would be GREAT to see what Nick Nolte (Lucas
| was considering him) would have done with Han Solo over the
| wooden Harrison Ford, I'm not sure I care enough to sit
| through it all again to find out. Blech.
| [deleted]
| nottorp wrote:
| Actually it's been done randomly. Usually it's Hollywood
| remaking some not-made-in-the-us movie because they think
| they can do better, and failing.
| nickbauman wrote:
| I think you're also ignoring the "transformative" clause
| written into the fair use doctrine in the US.
|
| _...the extent to which the use is transformative. In the
| 1994 decision Campbell v. Acuff-Rose Music Inc,[13] the U.S.
| Supreme Court held that when the purpose of the use is
| transformative ... is more likely to favor fair use._
| seba_dos1 wrote:
| I spy an Oracle employee.
| rhodozelia wrote:
| Maybe it is the same as using a similar plot, but with 0.4%
| of code lines being the same I think the analogy doesn't
| carry through to using a script word for word.
| LogicUpgrade wrote:
| How many lines is a script? Is it more than the 11500 lines
| Google copied? It's actually way less.
|
| And it's literally word for word.
|
| Can we be intellectually honest and not lie about the vast
| amount of work being copied here?
| unionpivo wrote:
| yes and most of the api is similar or copied from
| programming languages that came before java.
| dang wrote:
| Please don't post in the flamewar style to HN.
| wmichelin wrote:
| I don't think it's fair to compare a programming interface,
| which is more analogous to designing something like the
| plumbing architecture for a house, to a movie script, which
| is art. Yes, a well-written API can be considered art, but
| with the plumbing analogy, a "copy-cat" would just be making
| sure the same pipes are connected to the toilets in the same
| positions. What's going on under behind the dry-wall wouldn't
| matter.
|
| Movie scripts and APIs aren't really comparable as you have
| presented them.
| LogicUpgrade wrote:
| Bad analogy, architecture schematics are subject to
| copyright and you can't just take them and use them,
| either.
| spacemanmatt wrote:
| People can and do steal architectural patterns _all the
| time_ for reuse in their own structures. Are your getting
| it wrong on purpose?
| mattkrause wrote:
| Not wholesale, anyway.
|
| This decision suggests you could include say, the
| negative of the neighboring building's facade so that the
| two "interoperate" in a sensible way.
| vore wrote:
| Do you feel like Wine, Linux, or any web browser is also
| "stealing a platform" from Windows, Unix, or Netscape?
| dmitryminkovsky wrote:
| I'm glad about this outcome, because I agree the other outcome
| would have had a devastating effect on software development.
|
| I also appreciate this fair use argument, especially when you
| point out the code in question was 0.4% of the entire API.
|
| Still, I'll always struggle with the idea that "the amount and
| _substantiality_ of the portion used " when copying an
| interface is comparable to copying an implementation. The
| interface is, intellectually, the substantially heavier,
| "bigger picture" component of the API than the implementation.
| In my view they are apples and oranges.
|
| So, I'm glad this was the outcome. But I'll always feel like
| there was something wrong with Googe taking the Java SE
| interfaces and using them like they did, gratis.
| stjohnswarts wrote:
| It's one thing to steal algorithms but for interoperability
| to remain possible it is necessary for API to remain "fair
| use". I can't agree with you that this is a bad thing for
| them to copy Java SE interfaces.
| shadowgovt wrote:
| I can recommend focusing on Justice Thomas' dissent, which
| contains a section related to this topic. I believe Justice
| Thomas agrees with your assessment, and he raises concern
| that the SCOTUS has essentially made APIs practically
| uncopyrightable (in that they will 100% of the time find that
| it's fair-use to use them). I actually disagree with him, but
| only in one sub-category: I think a SCOTUS ruling would be
| harder to predict in a situation where someone 100% copied an
| API that had no implementation. That removes the mitigating
| factor of what portion of the work was used.
|
| Ironically the most protected APIs may be the ones nobody
| implements.
| chris_wot wrote:
| That's a good thing. The ability to copy an API allows more
| competition, helps improve services as others provide
| similar functionality, and forces improvement because it
| becomes easier to migrate from one service to another.
|
| One thing I do see happening is that sensitive and
| expensive to develop algorithm internals may be prevented
| from leaking into APIs. I, again, don't see this as
| anything other than a win for devs. An API is fundamentally
| used to get stuff done, if a developer doesn't need to know
| the implementation details I overall think this is a win
| for the developer using the API.
| Silhouette wrote:
| _I believe Justice Thomas agrees with your assessment, and
| he raises concern that the SCOTUS has essentially made APIs
| practically uncopyrightable (in that they will 100% of the
| time find that it 's fair-use to use them)._
|
| That would seem a reasonable outcome, for much the same
| reason that copyright not protecting the appearance of
| fonts under US law is reasonable. Yes, it _is_ overriding
| copyright protection for a creative work that would
| otherwise apply. However, it does so because a greater good
| is served, in this case by ensuring that interoperability
| cannot be encumbered, something which (as the majority
| opinion alludes) goes against the very purpose of copyright
| under US law.
| rocqua wrote:
| > Yes, it is overriding copyright protection for a
| creative work that would otherwise apply. However, it
| does so because a greater good is served
|
| One could argue that this is for the judicial branch, not
| the legislative branch, to decide.
| rocqua wrote:
| Sigh, I made a mistake mixing up the order of judicial
| and legislative in the sentence.
| CapitalistCartr wrote:
| The judicial branch _did_ decide this.
| chasil wrote:
| Had Justice Thomas' opinion prevailed, most everything
| within POSIX was originally copyright by AT&T USL as part
| of System V, and would be owned by the current holders of
| that intellectual property.
|
| Anyone using fork(), stat(), open(), or other basic parts
| of the UNIX development environment would be in violation.
|
| Those copyrights were purchased by Novell at some point,
| and I believe ended up with Attachmate.
|
| One would think that the C Programming Language is also
| covered by copyright via the K&R books, which would put
| anyone using printf() in the same position.
|
| That is truly a nightmare scenario.
| guscost wrote:
| > That is truly a nightmare scenario.
|
| Absolutely, but courts are supposed to interpret the law,
| not rule whichever way avoids nightmare scenarios.
|
| The risk of going too far in that direction (and this is
| by no means the first case in which SCOTUS clearly may
| have rationalized a decision for pragmatic reasons) is
| that it makes the court more corruptible. I am glad the
| majority ruled this way, because I agree that it leads to
| a better outcome in this case. On the other hand, _any_
| departure from a pure interpretation of the law is very
| dangerous, because it normalizes the more-corruptible
| mode of operation, and that can lead to another kind of
| "nightmare scenario".
| matthewdgreen wrote:
| > On the other hand, any departure from a pure
| interpretation of the law is very dangerous
|
| You should read the law in question. This would be
| Section 107 of the Copyright Act, which defines "fair
| use". It's extremely vague and is best interpreted as a
| set of considerations that the courts should take into
| account so that they can handle situations like this one
| on a case by case basis. If Congress wanted to be more
| prescriptive, they could (ETA: and if they become unhappy
| with the courts' decisions they still can in the future),
| but I think that would lead to worse outcomes.
| guscost wrote:
| Makes sense, and I am definitely not an expert on fair
| use. I'll cross out "clearly" in my aside above.
|
| I was really just responding to the implication that
| SCOTUS did the right thing because "it would be a
| nightmare scenario" otherwise.
| sn_master wrote:
| If it reaches SCOTUS, it means the law is already
| ambiguous the way its written and that no one
| interpretation is obviously the correct one.
| guscost wrote:
| You would certainly hope so, but that logic just passes
| the responsibility to interpret law faithfully onto the
| lower courts, which are also perhaps _more easily
| corrupted_.
| bonzini wrote:
| > courts are supposed to interpret the law
|
| The law also states that copyright's purpose is to
| stimulate progress of the arts, and that's why fair use
| is possible. Interpreting the law also means establishing
| the limits of fair use.
| guscost wrote:
| Good point.
| bluedays wrote:
| Thomas is almost always on the wrong side of history. If
| you want your API non copyrightable, don't make it public.
| Problem solved.
| Someone wrote:
| I think you mean "If you want your API copyrightable,
| don't make it public", not "If you want your API _non_
| copyrightable, don 't make it public"
|
| Now, how do you let third parties program against that
| non-public API? Would only showing it to licensees be a
| legal way to do that?
|
| If so, and if the API becomes popular, I don't see how to
| prevent those licensees from leaking the API to the
| world, say through small code snippets on Stack Overflow.
| spacemanmatt wrote:
| Justice Thomas wrote explicitly that he thought the
| majority blurred the lines between implementation and
| declaration.
|
| I think he's wrong by virtue of some disability to follow
| the winning argument logically. Clarence is sheer idiot.
| dang wrote:
| Please make your substantive points without calling
| names.
|
| https://news.ycombinator.com/newsguidelines.html
| spacemanmatt wrote:
| An idiot, in modern use, is a stupid or foolish person. I
| don't think I have used the term incorrectly.
| dang wrote:
| Calling someone stupid or foolish is calling names in the
| sense that the site guidelines use that term. They
| explicitly ask you to omit all that from your posts to
| HN. Would you please review
| https://news.ycombinator.com/newsguidelines.html and
| stick to the rules?
| syshum wrote:
| if I remember my history correctly Google did not, Android
| was purchased by Google by that time the choice to use Java
| SE as the API was already made
| CydeWeys wrote:
| While true, it's not particularly relevant. When you
| acquire a company you're taking on its liabilities along
| with its assets.
| syshum wrote:
| But the comment was not really about liabilities, but
| even in that context I think the history is still
| relevant.
|
| Rewriting history the way we do in the context has all
| kinds of problems associated with it
| steveklabnik wrote:
| There's a line in here that says "In the 1990s, Oracle
| created a programming language called Java." that is
| funny on its face, but is written this way for the exact
| reason you're talking about.
| reikonomusha wrote:
| To their credit, they are explicit (in a footnote I
| believe) about equating Sun and Oracle.
| steveklabnik wrote:
| Yes, it is one of the first footnotes.
| sn_master wrote:
| With that logic, Oracle didn't create Java either. It was
| purchased by Oracle from Sun in 2009, after Google had
| already created the Android API.
| [deleted]
| moron4hire wrote:
| Substantiality was only one factor in the decision. There
| were lots of others, such as _raison d 'etre_ of copyright,
| "promoting the progress of science and art". Because allowing
| copying of APIs is more important to the "progress of science
| and art" than the economic impact on the creator of the API,
| APIs are thusly not copyrightable.
| JumpCrisscross wrote:
| > _APIs are thusly not copyrightable_
|
| This is NOT what the Court found. At the very top of the
| Opinion, it says "we assume, for argument's sake, that the
| material was copyrightable. But we hold that the copying
| here at issue nonetheless constituted a fair use."
| moron4hire wrote:
| Fair enough. I had taken that to mean they were assuming
| a given to then prove the negative.
| mbesto wrote:
| > especially when you point out the code in question was 0.4%
| of the entire API.
|
| Honestly, the fact that it's 0.4% is a BS heuristic. What if
| they spent a year and all they did was refactor the code so
| that codebase was 1.43 million lines instead of 2.86? Would
| that mean these lines of code are 2x as powerful?
|
| Lines of code is an indicative heuristic, but not a
| deterministic one.
| drallison wrote:
| The SCOTUS decision on API Fair Use is the correct one. Students
| of intellectual property law and computer programs will find the
| briefing for the Supreme Court fascinating. I find it hard to see
| how the Circuit Panel that overturned the original pro-Google
| decision to Oracle's favor in the light of the arguments and
| evidence provided. The briefing for the Cert, particularly the
| amici, is worth reading. Oracle tried to move the argument into
| the public square by encouraging "experts" to write damning op-ed
| articles for news outlets and for the semi-technical press about
| the evils that Google did. Often their articles misplayed a
| shallow understanding of the issues and history of the
| Oracle/Google dispute.
|
| The SCOTUS decision cuts through the cruft and reaches the right
| finding in this case. It shows that the Supremes can can pay
| attention and do the right thing.
| epaga wrote:
| "The doctrine of "fair use" is flexible and takes account of
| changes in technology. Computer programs differ to some extent
| from many other copyrightable works because computer programs
| always serve a functional purpose. Because of these differences,
| fair use has an important role to play for computer programs by
| providing a context-based check that keeps the copyright monopoly
| afforded to computer programs within its lawful bounds."
|
| This is EXCELLENT news for anyone in software development. Yay
| for Fair Use.
| jawns wrote:
| > computer programs always serve a functional purpose
|
| The Court is apparently not familiar with much of my code :)
| The_rationalist wrote:
| Now can they please use a modern jdk on Android? It's about time
| quotemstr wrote:
| They _are_ using a modern JDK on Android. The standard library
| is literally OpenJDK, and the runtime is the excellent ART JVM,
| which has super-fast GC and tons of mobile-specific
| optimizations (like zygote space support and switching to a
| different GC when the app goes into the background). IMHO, you
| really don 't want HotSpot on mobile. ART is good work.
| vips7L wrote:
| I think he's just referring to a modern version of Java the
| language, not ART vs HotSpot. I don't think anyone really
| cares which runtime is running.
| The_rationalist wrote:
| The runtime prevent the support for modern JVM features
| such as value types (see my comment above). Google might
| duplicate all that work (but how much late they will be
| before it divide the Java world? Switching to a unified jvm
| and improving it through collaboration is the way to go.
| vips7L wrote:
| But as the person I replied to, HotSpot doesn't perform
| as well for the use cases ART covers.
| The_rationalist wrote:
| I am talking about C2 JIT support and other sota GCs. ART has
| an increasingly growing technical debt. No support for
| constant dynamic so no support for the upcoming pattern
| matching. No support for sub 1ms GC No support for the
| already available Vector API. No support for value types. No
| support for generic specialization. No support for Loom. ART
| is NIH and support with Java and Kotlin will explode into two
| worlds, the Android obscolete world and the modern, feature
| complete and optimized world. ART has custom improvments?
| Fine that's good, now let's gradually port them to openjdk
| (or a light openjdk fork). No custom improvement is gonna
| outweight the need of interoperability (and the order of
| magnitude performance improvement from the above features)
| ART is an AOT so I wonder if the android team has considered
| switching to GraalVM instead of hotspot, the transition might
| be easier. Please Google, it's time to show technical
| excellence.
| quotemstr wrote:
| If you think ART is an AOT system, you might want to
| refresh your understanding of the system. ART has had a JIT
| for a long time now. Sure, HotSpot might have some features
| ART lacks, but ART has features that HotSpot lacks, so it's
| a wash. (And ART already has sub-millisecond GC pause
| times.) It's good and healthy for a language to have
| multiple implementations and there's no obligation
| whatsoever on the part of the Android people to switch to
| Oracle's JVM.
| haglin wrote:
| Hotspot has sub-millisecond GC pause times.
|
| "But as long as your system isn't heavily over-
| provisioned, you can expect to see average GC pause times
| of around 0.05ms (50us) and max pause times of around
| 0.5ms (500us)." https://malloc.se/blog/zgc-jdk16
| The_rationalist wrote:
| _Sure, HotSpot might have some features ART lacks, but
| ART has features that HotSpot lacks, so it 's a wash._
|
| The ART features are not exposed to the language design.
| The JVM features in addition to the order of magnitude
| performance impact it will have (cf previous comment)
| needs to be supported in order to maintain interop with
| future JVM languages versions. (cf previous comment)
|
| _It 's good and healthy for a language to have multiple
| implementations_ no it's much healthier to have one that
| reap most of the benefits through collaboration. Hence
| why Android try to merge its patchset in the Linux kernel
| instead of duplicating it's million commits.
|
| _Sure, HotSpot might have some features ART lacks, but
| ART has features that HotSpot lacks, so it 's a wash._
| Technical excellence unfortunately isn't an obligation.
| Or at least until the system becomes unsustainable (Cf
| interop) but then when it comes it is too late.
| mtgx wrote:
| > Google had appealed a 2018 ruling by the U.S. Court of Appeals
| for the Federal Circuit in Washington reviving the suit
|
| Once again the CAFC was dead wrong in its maximalist IP ruling.
| martin1975 wrote:
| I hate analogies... but will use one here... 'copying' an API, to
| me is a bit like copying the look&feel of a product. There used
| to be similar lawsuits alleging 'look and feel' violations awhile
| back between Microsoft and whomever (I don't recall anymore),
| most if not all of these bombed. If Google had lost this one,
| then the next step would be copyrighting a typedef-ed struct with
| "proprietary" Google data in it...
|
| I am not a huge fan of Google's antics in general, but in this
| case, I am glad they won.
| andrewflnr wrote:
| Oh, I forgot this little apocalypse was hanging over our heads.
| It's good to see some sanity.
| gonzo41 wrote:
| And it's kinda nice to see it come to an end. I wonder if both
| google and oracle are looking at the bills from their lawyers
| and thinking about it like the destruction at the somme.
|
| It's great for software, it'll be an interesting documentary
| someday. And congratulations to all the lawyers for making a
| ton of money.
| clankyclanker wrote:
| I'm just grateful this decision didn't come out 4 months ago.
| It would've gone the way of 2020, somehow.
| caf wrote:
| This made me wonder what gender 'apocalypse' has in French
| (feminine, it seems - _la petit apocalypse_ ),
| tantalor wrote:
| From the dissent:
|
| > The Copyright Act expressly protects computer code. It
| recognizes that a "computer program" is protected by copyright...
| And it defines "'computer program'" as "a set of statements or
| instructions to be used directly or indirectly in a computer in
| order to bring about a certain result." SS101. That definition
| clearly covers declaring code--sets of statements that indirectly
| perform computer functions by triggering prewritten implementing
| code.
|
| Thomas seems confused here. An API (declaring code) is not a
| computer program. A computer cannot execute declaring code - by
| definition - because it is missing the implementation.
|
| Declaring code does _not_ "indirectly perform computer
| functions". Declaring code does not perform _anything_. It
| provides a reference, nothing more, for a compiler to match one
| computer program (the API client) to another (the API
| implementation).
| waterheater wrote:
| >A computer cannot execute declaring code - by definition -
| because it is missing the implementation.
|
| If you allow null pointer references to a declared variable,
| then it certainly can.
|
| >Declaring code does not "indirectly perform computer
| functions". Declaring code does not perform anything. It
| provides a reference, nothing more, for a compiler to match one
| computer program (the API client) to another (the API
| implementation).
|
| I strongly disagree. We understand the obvious difference
| between declaration and instantiation, as declaration brings a
| variable into existence while instantiation specifies the
| variable's value. Declaring a variable is ultimately based upon
| available language primitives.
|
| Whether or not he realized it, Thomas draws out a deep
| philosophical element of computing. Consider the creation of a
| self-hosting compiler. Once created, this compiler has an
| identity. However, creating this compiler required the usage of
| other software tools, each of which have distinct identities.
| Once the compiler operates, its creating tools become
| unnecessary to it, as the compiler operates independently
| (though the broader system may not). His phrase "triggering
| prewritten implementing code" has full-stack implications,
| whereas the majority opinion considers scope.
|
| To connect to hierarchical processing model of programming, the
| majority opinion says a top-level processing block is special,
| whereas Thomas says no processing block differs from one
| another.
|
| From a business perspective, I agree with the majority. From a
| philosophical perspective, I agree with Thomas.
| wtallis wrote:
| This case is about declaration of functions/methods, not
| variables.
| waterheater wrote:
| It's generally about acceptable usage of "top-level"
| programming objects, of which an API is one.
|
| A related concept which comes to mind is killing in self-
| defense. We may say killing is killing is killing, yet
| society acknowledges a limited set of circumstances where
| it becomes permissible. In both self-defense and this court
| case, the difference in permissibility is context within a
| broader system.
| tantalor wrote:
| This argument is hard to swallow:
|
| > declaring code would satisfy the general test for
| copyrightability.. they are expressed in "words, numbers, or
| other verbal or numerical symbols
|
| It is common knowledge that mathematical formulae & equations,
| which are also expressed in words, numbers, and symbols, do
| _not_ have copyright protection.
|
| > Copyright protection is therefore not available for...
| mathematical principles; formulas or algorithms
|
| https://www.copyright.gov/circs/circ31.pdf
|
| > public static int MaxNum (int x, int y, int z)
|
| This is literally a mathematical formula, hence does not have
| copyright protection.
| mantap wrote:
| When you get down to it, copyright is a whole bunch of
| contradictory rules. Courts decide every time there is a new
| kind of work, whether it is copyrightable or not. Trying to
| divine whether something is copyrightable by analogy to other
| kinds of works is a hopeless endeavour.
| ghaff wrote:
| That was the case with computer software when it first
| became interesting to copyright. After all, it's just a
| series of instructions which are often not considered
| copyrightable. But, in general, copyright has carried over
| fairly naturally from the printed word to new types of
| media as technology advanced.
| 1980phipsi wrote:
| That _literally_ is not a mathematical formula.
| throwaway8581 wrote:
| This is not a persuasive argument because, by your logic,
| function implementations are also mathematical formulas and
| everyone agrees that they are copyrightable.
| tantalor wrote:
| No, definitely not. Computer code is not a formula.
|
| A formula is an idea. It describes the nature of something
| computable. It does not explain _how_ to compute.
|
| For example:
| https://en.wikipedia.org/wiki/Euclidean_algorithm
|
| The programmer must understand the formula in order to
| write computer code that implements it. The result is a
| creative/expressive work which is copyrightable.
| throwaway8581 wrote:
| Yes, but neither is an API signature a formula. I was
| assuming the logic of the person I was responding to, to
| show that it could not be right.
| marcodiego wrote:
| Consider the following:
|
| gcd(X, Y) = X if X == Y or gcd(X - Y, Y) if Y < X or
| gcd(X, Y - X) otherwhise.
|
| Is this a formula? Should this be copyright-able?
| tantalor wrote:
| Of course not, this is math; it is not copyrightable.
|
| It would have made perfect sense to Euclid.
|
| Some computers can understand this and execute it as if
| it were computer code. That's amazing! Kudos to those
| compute language designers and compiler authors. But
| their ingenuity does not suddenly grant copyright
| protection to anything their clever compilers can now
| understand.
| marcodiego wrote:
| Any computable function can be written the way I wrote
| the function that is equivalent to Euclid's algorithm.
| Does it means no computable function is copyright-able or
| not copyright-able if written that way?
| throwaway8581 wrote:
| Exactly. That argument would never fly in a court. I'm
| always amused when software people think they have some
| legal checkmate like "any digital work is somewhere in
| the infinite digits of pi therefore cannot be
| copyrighted." That's not how law works.
| tantalor wrote:
| The law says nothing about computability (nice straw man)
| but it does say ideas and math are not protected whereas
| code is. My point is the API declarations at the heart of
| this case are not protected by law because they are
| examples of the former. Like a formula, they are ideas
| that describe _what_ to do, but not _exactly how_ to do
| it.
|
| If you code GCD in a low-level computer programming
| language then of course you can claim a copyright on that
| code, but nobody owns the idea of the Euclidean
| algorithm.
| asimpletune wrote:
| Function implementations are definitely not mathematical
| formulas. To see what I mean, check out any HN discussions
| on TLA+ syntax.
|
| It's when you see an actual mathematical syntax that you
| realize how different programming really is.
|
| Not try to be tedious here, just pointing out that actually
| programming is different than math, even for a language
| like Haskell.
| cjbprime wrote:
| The copyrightable _part_ of them is the creative decision
| making used to organize the workings of the function
| itself, not the formulas. Two functions could have
| identical algorithmic performance, but be stylistically and
| semantically different, have been written independently,
| and neither would infringe on the copyright of the other.
| throwaway8581 wrote:
| An API design is also a creative and highly stylistic
| work. Anyone who has ever designed a large API, or
| suffered a poorly designed one, can attest to that. A bad
| design can work just as well as a good design.
|
| Also, you are distorting the argument by making it about
| one method signature instead of thousands of
| interconnected types and methods that work together to
| present an ergonomic interface for the developer.
| tantalor wrote:
| The quality of good/bad or ergonomic is insufficient to
| meet the threshold for copyright protection.
|
| A table of baseball batting averages or telephone numbers
| is not copyrightable, no matter how good or bad it is
| organized.
| throwaway8581 wrote:
| An API design is plenty creative. The bar for what is
| creative enough to get copyright protection is extremely
| low, basically zero. An alphabetized phone book is
| literally the example people have to use for something
| that isn't.
|
| There's a reason the Supreme Court didn't adopt the
| argument you are pushing and instead ruled on fair use
| grounds: It's a bad argument because a large API is
| clearly a creative work.
| mantap wrote:
| Arguably API design is the _most_ creative aspect of
| programming. The space of possible interfaces is
| infinite, whereas function implementations are heavily
| constrained by the interface and often there is only a
| handful of ways to write an implementation for a given
| interface.
|
| Two equally good programmers may come up with radically
| different interfaces. Whereas if given an interface and
| instructed to implement it, they are likely to converge
| to a similar implementation.
| jameshart wrote:
| public static int MaxNum (int x, int y, int z)
|
| This is _not_ a mathematical formula. It is a declaration of
| intent to name some code that takes three ints and returns an
| int 'MaxNum'. It says nothing about what the code can,
| should or must do.
|
| Now, if you've come up with some novel way to perform some
| computation on three integers and produce an integer:
|
| - you might be able to _patent_ that procedure.
|
| - you might write some code that performs that procedure, and
| you would hold a copyright over that specific set of code
|
| - you might, I suppose, name your algorithm 'MaxNum' and
| declare a trademark over it
|
| But I don't think any of those could prevent someone from
| writing
|
| public static int MaxNum (int x, int y, int z)
|
| in another codebase.
|
| - your patent protection might limit their ability to make a
| substantially similar implementation of such a function
|
| - your copyright protection might prevent them from literally
| copying your implementation word for word
|
| - your trademark protection might prevent them from passing
| off their implementation of MaxNum as if it were yours
|
| But in no way does this have anything to do with the
| uncopyrightability of mathematics.
| 1980phipsi wrote:
| Agreed. I read the dissent, but not all of the majority. Do
| they address this point?
| reactspa wrote:
| Even if it were computer code, I think the Majority argued that
| use of 0.4 percent of the code can be considered Fair Use. In
| films, textbooks, etc., I think (though I'm not certain)
| there's precedent that up to 5% of the product can be
| reproduced (copied) under Fair Use, for criticism, academic
| analysis, etc.
| pseudo0 wrote:
| > Thomas seems confused here. An API (declaring code) is not a
| computer program. A computer cannot execute declaring code - by
| definition - because it is missing the implementation.
|
| This standard doesn't really make sense, and the legal standard
| says nothing about executability. What about programs with
| external dependencies, or a code snippet? Those won't
| necessarily be executable in a self-contained sandbox, but I'd
| certainly consider them computer programs.
|
| Also, per Thomas's dissent:
|
| > The majority also belittles declaring code by suggesting it
| is simply away to organize implementing code. Not so. Declaring
| code defines subprograms of implementing code, including by
| controlling what inputs they can process. Similarly, the
| majority is wrong to suggest that the purpose of declaring code
| is to connect pre-existing method calls to implementing code.
| Declaring code creates the method calls.
|
| He clearly has a much better understanding of APIs than some
| software engineers I've worked with.
| tantalor wrote:
| > Declaring code defines subprograms
|
| Absolutely not. No points awarded.
|
| Declaring code _declares_ subprograms. They are _defined_ by
| the implementation.
|
| > A declaration provides basic attributes of a symbol: its
| type and its name. A definition provides all of the details
| of that symbol--if it's a function, what it does; if it's a
| class, what fields and methods it has; if it's a variable,
| where that variable is stored.
|
| https://www.cprogramming.com/declare_vs_define.html
|
| > the purpose of declaring code is to connect pre-existing
| method calls to implementing code
|
| That sounds mostly right to me. Without declarations, the
| compiler cannot connect the function call to the
| implementation. Thomas ignores a crucial idea that decoupling
| definition & declaration enables multiple implementations for
| the same declaration.
|
| > Declaring code creates the method calls.
|
| That's nonsense. I have no idea what this means.
| pseudo0 wrote:
| "Declaring code" is a specific term of art used in this
| case. For an example of what they consider declaring code
| vs. implementation code, see page 38 of the decision which
| has a handy diagram and example.
|
| > That's nonsense. I have no idea what this means.
|
| He's referring to how the workflow for an API generally
| involves gathering requirements, writing the "defining
| code", and then finally implementing the functionality
| promised by the interface. From that perspective, the
| defining code determines what implementation code is
| created, rather than linking up already existing
| implementation code.
| chaostheory wrote:
| > Thomas seems confused here. An API (declaring code) is not a
| computer program. A computer cannot execute declaring code - by
| definition - because it is missing the implementation.
|
| Yup, for all intents and purposes an API is just a data
| exchange contract between different software.
| Jach wrote:
| The court overall seems confused, but whatever, at least they
| didn't rule wrongly in favor of Oracle, so I'm happy our long
| national nightmare is over.
|
| Specifically I'm less motivated to read more of the PDF when
| the opening says "The copied lines are part of a tool called
| an Application Programming Interface (API)." I don't think
| any programmer would ever describe an API as a tool. A
| program implementing an API, or talking to an API, sure, but
| the API itself, is not itself a tool or program.
| andomar wrote:
| Agreed. In another part the dissent says: "The Copyright Act
| protects code that operates "in a computer in order to bring
| about a certain result" both "directly" (implementing code) and
| "indirectly" (declaring code)."
|
| But a program that only declares functions never brings about a
| result.
|
| Declaring code is just the recipe for how to invoke
| implementing code.
| sleepydog wrote:
| I also took issue with that argument. I suppose you could argue
| that the declarations are statements for the compiler or JVM.
| But even then, there is a layer of translation that is
| problematic, in my opinion. If you were to say that
|
| public int max(int x, int y);
|
| Is a program that tells a compiler or VM to add an entry to its
| public symbol table that allows it to compile or execute third-
| party code utilizing this function, and that the declaration,
| by itself, then qualified as a computer program and could be
| copyrighted, where would you draw a limit? Would two different
| programs that produce identical assembly instructions infringe
| on each other's copyright?
|
| What about system calls for an OS? For example, Linux system
| calls have names, but they also have numeric identifiers. If
| someone copied Linux system call names in a new BSD-licensed
| OS, would they violate the GPL? What if they only copied the
| numbers?
|
| It's interesting to think about. I'm glad this was the minority
| opinion.
| tzs wrote:
| Thomas may have phrased it badly, but his underlying point that
| declaring code in a program satisfies the 17 USC 101 definition
| of "computer program" seems sound.
|
| Declaring code in statement based languages is (1) a set of
| statements, is (2) used directly or indirectly in a computer,
| and it is used (3) to bring about a certain result. That hits
| all the points listed in 17 USC 101.
|
| This is trivial to prove. Take a program that works and remove
| the declaring code. The program no longer works. That shows
| that the declaring code is indeed being used by the computer,
| and it is being used to bring about a certain result.
|
| That the declaring code is not directly used in actually
| calling the API is irrelevant. The "certain result" the
| declaring code is used to bring about is the compiler producing
| output that works with the API.
| crazypython wrote:
| Declaring statements are pure data. "int add(int, int);" is a
| piece of data, not a series of instructions. It may as well
| be a 4-tuple: (int, "add", int, int). You could convert each
| class declaration to a series of 4-tuples and put it in a CSV
| file. Database rights are much weaker than copyright.
|
| > Take a program that works and remove the declaring code.
|
| Actually, it will work just fine, because you the
| implementation necessarily has declarations in them, and you
| can generate declarations from the implementation.
| tylerhou wrote:
| I think this is a poor argument. I could make this "data"
| argument about any computer program, or even any
| copyrighted work. E.g. every statement is an n-tuple that
| could be stored in a database.
| raldi wrote:
| By the quoted logic, any data file (say, an image) would be
| considered a computer program.
| crazypython wrote:
| "The fourth statutory factor focuses upon the "effect" of the
| copying in the "market for or value of the copyrighted work."
| SS107(4). Here the record showed that Google's new smartphone
| platform is not a market substitute for Java SE. The record also
| showed that Java SE's copyright holder would benefit from the
| reimplementation of its interface into a different market. "
| smnrchrds wrote:
| First of all, very good news. Second of all, what does this mean
| for Fuchsia, Dart, and related projects? I always assumed they
| were a hedge against Google having to pay exorbitant licensing
| fees to Oracle. Now that the threat has disappeared, will those
| projects be sunsetted too?
| rileyteige wrote:
| Given the investment going into Flutter for cross-platform
| mobile (and now desktop and web) development, I would be very
| surprised to see Dart get Google Readered.
| johnnycerberus wrote:
| To be honest, the investment into Flutter pales in comparison
| to Android (mobile, TV, ChromeOS, etc.). Flutter has always
| been a side project.
| usbfingers wrote:
| Agreed, very good news though I'm left with the same question.
| It doesn't inspire that much confidence, but the recent embrace
| of Flutter from Canonical leaves me hopeful even if Google did
| drop from active lang / framework development, it wouldn't be
| left to dry.
| pjfin123 wrote:
| Yay!
| qalmakka wrote:
| This is one of the most important legal decisions in the history
| of software. The US Supreme Court has basically just saved the
| whole software industry (and FOSS projects) from being wrecked by
| patent trolls.
| ISL wrote:
| It is going to open a big door for people who reimplement APIs.
|
| In particular, social-media aggregators (one app to display
| your Twitter, FB, Instagram, etc.) may have new protections.
| lolinder wrote:
| I don't know about that. The issue at hand there isn't
| implementation of APIs, it's using an existing API (run on
| existing infrastructure) in a way that the social media
| company does not approve of. Isn't that more an issue of
| unauthorized access than of copyright?
| pwg wrote:
| s/patent trolls/copyright trolls/
|
| This case involved copyright, not patents. Copyrights are
| separate from patents.
| monocasa wrote:
| I agree with the parent. Patent trolls aren't tied to patents
| because of some love for patents specifically, but because
| the legal structure allows for the most misuse. They would
| gladly add another tool to their belt given the chance, as we
| saw from this case with most of the bad copyright opinions
| coming from the CAFC, ie. the patent appeals court that's
| currently stuffed with IP maximalists.
| adolph wrote:
| Oracle sued Google for copyright and patent infringement.
| Today's decision has to do with the fair use defence in the
| copyright portion of the lawsuit.
|
| https://en.wikipedia.org/wiki/Google_LLC_v._Oracle_America,
| _....
| monocasa wrote:
| I understand that. I'm saying that the same people that
| are patent trolls would add misuse of copyright to their
| set of tools if it became that became a viable option
| available to them. Today's patent trolls would just be
| called IP trolls, but they'd be the same set of people.
| adolph wrote:
| Copyright is already misused to perform DCMA takedowns of
| fair use and is a well known option available to all
| comers. I think the classic example was the Prenda
| lawsuit firm.
|
| _Prenda made its money by suing people who allegedly
| downloaded pornographic films online. Its targets
| frequently agreed to settlements worth a few thousand
| dollars rather than facing a courtroom process. These
| copyright trolling tactics netted the company more than
| $6 million between 2010 and 2013._
|
| https://arstechnica.com/tech-policy/2019/07/prenda-law-
| porn-...
| monocasa wrote:
| I mean, that article is about how the Prenda saga ended
| with the lawyer disbarred and in prison.
|
| If his strategies had ended up a valid, legal option we
| would absolutely see trolls expanding into this. John
| Steele was testing the waters and got eaten by the deep
| acting as a warning for how not to go about this.
|
| There's some DMCA takedowns and such still, but they
| aren't quite lucrative enough to show up on patent
| trolls' radars. Aquila non capit muscas and what have
| you. A several billion dollar copyright claim like
| Oracle's passing SCOTUS muster absolutely would have
| shown up on their radar though.
| adolph wrote:
| > the same people that are patent trolls would add misuse
| of copyright to their set of tools
|
| Prenda is an example of how misuse of copyright is
| already in the trolls' toolbox.
|
| Since you think about this stuff you might find the
| latest on the Santa Cruz Operation interesting:
|
| https://arstechnica.com/gadgets/2021/04/xinuos-finishes-
| pick...
|
| _Xinuos is the company that purchased the remnants of
| the SCO Group in 2011. The SCO Group, in turn, is a
| company most famous not for its actual products but for
| its litigation against IBM and Linux. That litigation
| began in 2003--partially funded by a very different
| Microsoft, only five years after the leak of the
| Halloween documents in which Microsoft acknowledged the
| "long-term viability" of open source software and
| discussed strategies to choke it out of the market._
| AnimalMuppet wrote:
| I looked back at _SCO v IBM_ on Groklaw. SCO wanted to
| claim copyright infringement over IBM 's use of code from
| Project Monterrey, but they tried to add it too late, and
| the judge wouldn't let them amend the case yet again.
| Well, this Xinuos nonsense looks the the copyright
| version of that exact claim.
| monocasa wrote:
| And that's probably not going to go anywhere either. Yes,
| there's the occasional attempt, but it's a set of fringe
| actions that don't turn out great for the agressor rather
| than a well trodden playbook that will probably earn you
| many millions like patent trolls can expect.
| xforeigner wrote:
| Good, now can we get a ruling that prevents Google, RedHat,
| Microsoft and others from wrecking FLOSS projects with their
| stifling influence?
|
| Or prevent them from eradicating competing or _even original_
| projects by doing hostile rewrites or forks?
| andrewnicolalde wrote:
| > Or prevent them from eradicating competing or even original
| projects by doing hostile rewrites or forks?
|
| Wouldn't this directly contravene the findings in this case?
| kps wrote:
| Should we also get rid of all of GNU's hostile rewrites?
| curt15 wrote:
| People seem to frequently forget that GNU was largely a GPL
| reimplementation of proprietary software.
| qalmakka wrote:
| Why would you prevent someone from writing whatever code they
| want, as long as it is FOSS? That's hypocritical, considering
| that doing whatever you want with the code is one of GNU's
| main tenets ("free as in freedom")
| [deleted]
| [deleted]
| kaba0 wrote:
| Why? It wasn't about whether APIs are under copyright (they
| are), but whether this particular case constitutes fair use. I
| think the effect of this decision was way overblown.
| flyingfences wrote:
| > whether this particular case constitutes fair use
|
| The English common law system relies heavily upon judicial
| precedent. A ruling in this particular case that the copying
| of an API constitutes fair use will inform decisions in
| future cases of similar copying.
| shadowgovt wrote:
| Justice Thomas clarifies why this case has wide-reaching
| impact in his dissent.
|
| "Congress rejected categorical distinctions between declaring
| and implementing code. But the majority creates just such a
| distinction. The result of this distorting analysis is an
| opinion that makes it difficult to imagine any circumstance
| in which declaring code will remain protected by copyright."
|
| I concur with Thomas (not in the connotation - he thinks this
| is a bad thing, I do not - but in the denotation). This
| ruling is such strong precedent that almost any API cannot be
| bound by copyright that no company is going to be willing to
| spend the money to raise the question.
| fauigerzigerk wrote:
| I think Thomas makes a mistake in disregarding the reason
| for introducing the distinction between declaring and
| implementing code. The law (as I understand it - IANAL)
| doesn't exhaustively enumerate what does and does not
| constitute fair use. Therefore, any specific instance of
| fair use is bound to introduce new distinctions that are
| not specifically mentioned in the law itself.
|
| In this particular case, Google's copying of interfaces was
| ruled to be fair use because its purpose was to allow Java
| developers to reuse their skills. This reasoning only holds
| for the declaring parts of the copyrighted work though. And
| that's why the distinction becomes necessary even if
| Congress rejects it as a primary distinction between
| copyrightable and non-copyrightable work.
|
| That's also why I think the ruling is perhaps not quite as
| broadly applicable as some (including Thomas) are thinking
| right now. It may not cover code that isn't used by a
| significant number of developers. I haven't read the entire
| ruling, so I'm not sure whether it covers non-public
| interfaces that are nevertheless useful for
| interoperability. Such interfaces were at the center of
| past disputes (I think Microsoft's SMB protocol was one
| such case).
| jaywalk wrote:
| If this wasn't fair use, nothing of any substantial value
| could be considered fair use.
| zackees wrote:
| Having a song in the background of a video is not
| considered fair use. But copying an entire API by a mega
| corporation in order to appropriate all its value, is fair
| use.
| kaba0 wrote:
| Wine would be a much better example of fair use. It is
| explicitly made to allow users of linux to run programs
| written against win APIs. It is not so clear in the Oracle
| vs Google case, because it is questionable whether Google's
| case was really fair use (google pretty much didn't want to
| pay Sun for the mobile license and the whole thing was done
| as cost saving) - hence the very long timeline of the case.
| jaywalk wrote:
| Well, regardless of your opinion, this ruling means that
| Google's copying of the Java SE API is a perfect example
| of fair use.
| kaba0 wrote:
| I didn't say that it wasn't fair use, but it would have
| ended much sooner if it would have been trivially fair
| use.
| ocdtrekkie wrote:
| The dissent explains how Android fails three of the four
| fair use tests. I'm not sure what the majority was smoking
| when they wrote this, but far better examples of fair use
| exist, especially uses that are noncommercial and
| especially are noncompetitive with the original.
|
| Java was a mobile OS before Android literally obliterated
| the market after copying Java. Arguably, if Android was
| fair use, everything is fair use and all software copyright
| is fundamentally defeated by this ruling.
| xxpor wrote:
| The dissent is a bunch of garbage written by someone who
| clearly doesn't understand anything about what he's
| talking about.
|
| He complains about the names of functions being
| "expressive content". Yeah, "max" and "toIndex" are real
| expressive.
|
| Also, what the hell is this logic?
|
| https://twitter.com/KardOnIce/status/1379080086880665606/
| pho...
| Longhanks wrote:
| It definitely sends a message. And the stakes were so high
| that the message is know very loud and clear, too.
| adolph wrote:
| To be pedantic, this part of the case is about copyright law,
| not patent.
|
| https://en.wikipedia.org/wiki/Google_LLC_v._Oracle_America,_...
| .
|
| _The first phase of the case lasted from 2010 to 2015. Oracle
| successfully established that APIs are copyrightable, but their
| claims of patent infringement were rejected. Google petitioned
| the Supreme Court in October 2014 to review the case, but this
| was denied. A second petition by Google in January 2019
| included the judgement that APIs are copyrightable. The Supreme
| Court agreed to review this part of the judgment in November
| 2019._
|
| To the degree that SCOTUS has found that an API can be
| copyrighted, there is still room for _copyright_ trolls to
| operate.
| hajile wrote:
| I'd make the case that it instead saved closed source coding.
|
| Open source code is still usually copyrighted. Nobody would
| trust closed languages and APIs unless they paid a fortune for
| them while open source with a grant would be safe to use.
| Natanael_L wrote:
| It also saved open source software which reimplements
| proprietary API:s
| dehrmann wrote:
| I assume this means that Amazon can ignore the Elastic and
| Mongo licenses when building compatible implementations?
| topicseed wrote:
| So can other vendors with S3's api.
| hutrdvnj wrote:
| Now it's legally possible to SaaS MinIO and sell S3 storage
| to customers.
| jahnu wrote:
| At least in the US
| qalmakka wrote:
| Doesn't matter, as GDPR showed having something that's
| troublesome to sell or distribute in certain (critical)
| markets is a huge, massive roadblock for most companies.
| Software patents are worth s*t in the EU, but still we had to
| endure year of hassle when installing MP3s and such on Linux
| due to most distros having to also comply with the US market.
| CarelessExpert wrote:
| US copyright law and interpretation tends to get exported
| through trade deals and other forms of political and economic
| pressure.
| fulafel wrote:
| There is a tendency, but it's not deterministic. When it
| does happem, it's more often for the broad strokes than
| this kind of detail, see eg sw patents.
| tephra wrote:
| While true, APIs have specifically not been copyrightable
| in the EU for some time, I'm not sure about the cad else in
| other countries and regions.
| monocasa wrote:
| That's always just a treaty away from changing.
| typon wrote:
| Which, for now, is the global hegemon in software and tech at
| large. Any US court decision is extremely important to the
| whole industry.
| jhgb wrote:
| Did Oracle also sue Google in other countries outside of the
| US? To my knowledge we didn't need any saving in this respect
| in my country.
| ocdtrekkie wrote:
| This is a pretty unfortunate ruling and I have some questions
| about the shoddy claims made in this document (the one suggesting
| Oracle benefitted from its platform being ripped off without
| license is particularly rich, especially considering it was the
| death warrant on Java as a mobile platform entirely, right before
| mobile became huge).
|
| But what can we expect from the fine folks behind Citizens
| United?
| quotemstr wrote:
| Upvoted because you shouldn't be downvoted into oblivion just
| for having an opinion contrary to the HN hivemind. It's okay to
| think Oracle should have won here. I disagree, but there are
| reasonable people on both sides.
| Spivak wrote:
| In thought Oracle should have won this case as well and the
| opinion basically affirmed the reasoning but went the other
| way. The basis for Oracle winning was that copying the Java
| API for interoperability with developers rather than for
| existing software _was_ copying for Java's beauty rather than
| being purely functional.
|
| Whenever this case came up on HN people outright refused to
| acknowledge that one's intentions even mattered when copying
| an API.
| moftz wrote:
| The QWERTY layout isn't the best but everyone makes their
| keyboards the same layout. QWERTY isn't beautiful nor the
| most effective, it's functional and familiar.
| danans wrote:
| > copying for Java's beauty rather than being purely
| functional
|
| How would "beauty" be defined here. In the context of
| copyright, it would seem to apply to aesthetic beauty, but
| I'm not sure that applies to code (despite all sorts of
| engineers using the metaphor for theirs or others work).
| ocdtrekkie wrote:
| I would imagine it would hinge on the simplicity/elegance
| of the organized structure of the APIs? We tend to
| prescribe the term beauty to language features that are
| easier to use and implement in a novel way compared to
| the languages that came before.
| danans wrote:
| I'm not sure that is the same use of the word "beauty" as
| used in copyrighted materials like books and art, since
| APIs are machine blueprints, whose primary and
| fundamental purpose is functional, not aesthetic.
|
| Similarly, though a mechanical engineer might describe a
| particular gearbox design as beautiful doesn't make it
| copyrightable, since it's fundamental purpose is also not
| aesthetic.
| dang wrote:
| The GP post seemed to start with some interesting information
| but then instead of adding enough substance to become a good
| comment, it petered out--and then it went straight to
| flamebait. It's correct to downvote flamebait.
|
| Contrary opinions are welcome but need to come with
| substantive information. Contrarian comments that just go
| "nyah nyah nyah" at the majority end up having the same
| effects as outright trolling. It's tempting to do that,
| because it's frustrating to be surrounded by opponents (which
| is what holding a minority view on the internet feels like).
| But it's part of maturing as a commenter to resist the urge
| to lash out in such situations--which only discredits the
| minority view even further.
|
| Past explanations about this:
|
| https://hn.algolia.com/?dateRange=all&page=0&prefix=false&qu.
| ..
|
| https://hn.algolia.com/?dateRange=all&page=0&prefix=true&sor.
| ..
| paulmd wrote:
| Hopefully this is a crack in the armor of the x86 monopoly -
| after all what is an instruction set but an "API for processors"?
| The novelty is in _how you implement the instruction set_ , not
| the actual API that says "this instruction takes A and adds it to
| B", that is purely a matter of compatibility.
| xxpor wrote:
| Who would willingly make a new x86 design these days?
|
| I would think this _would_ crack ARM 's control over their
| instruction set though. I can't imagine it'd be worth re-
| implementing literally the entire thing from scratch though
| when ARM will willingly sell you IP blocks, as opposed to Intel
| or ARM which will certainly not.
| paulmd wrote:
| Zhaoxin Semiconductor, for one. Hygon licensed AMD's
| architecture as a starting point for their own stuff for
| another.
|
| You're not going to find a lot in the west due to the patent
| issues (why follow that path when you're doomed to be sued
| into the ground), but there clearly is a desire to pursue x86
| as an ISA (as opposed to going with ARM).
| garaetjjte wrote:
| Does anybody claim copyright for ISA though? I think it is just
| patent minefield.
| aerovistae wrote:
| Does anyone have any insight into how the justices are educated
| about a case like this? I guess this applies to many cases,
| involving a variety of industries, but it's especially clear here
| that making a decision requires a technical understanding of the
| stakes. How are the justices made to understand what the
| different concepts meant? from reading the ruling it's clear that
| they have a very good understanding, and it's impressive for non-
| programmers, most of whom are older and did not grow up with
| technology.
| mjh2539 wrote:
| All thanks be to God
| jkingsbery wrote:
| I 100% agree that this is the right outcome. Any other outcome
| would be a nightmare for software developers and would inhibit
| the development of products.
|
| But the dissent raises an interesting point. I think it shows how
| the crafting of legislation by people who are wholly ignorant of
| technology can create problems. While _programmers_ recognize the
| difference between an API and it 's implementation, Thomas makes
| the interesting point that the relevant _legislation_ does not
| (page 4 of the dissent):
|
| > Copyright law generally protects works of authorship. Patent
| law generally protects inventions or discoveries. A library of
| code straddles these two categories. It is highly functional like
| an invention; yet as a writing, it is also a work of authorship.
| Faced with something that could fit in either space, Congress
| chose copyright, and it included declaring code in that
| protection.
|
| > The Copyright Act expressly protects computer code. It
| recognizes that a "computer program" is protected by copyright.
| See 17 U. S. C. SSSS109(b), 117, 506(a). And it defines
| "'computer program'" as "a set of statements or instructions to
| be used directly or indirectly in a computer in order to bring
| about a certain result." SS101. That definition clearly covers
| declaring code--sets of statements that indirectly perform
| computer functions by triggering prewritten implementing code.
|
| While it clearly is in the Court's prerogative to interpret law,
| there seems to be a pretty good case that the court didn't
| provide an interpretation for a gap in the law, it instead fixed
| a law that didn't make sense.
| 8note wrote:
| The gap in the law they've clarified is what fair use looks
| like for software.
|
| When the API definition is a small portion of a work, it is
| fair use to reimplement the api
| curt15 wrote:
| The court made no holding on whether APIs can be copyrighted.
|
| "We shall assume, but purely for argument's sake, that the
| entire Sun Java API falls within the definition of that which
| can be copy-righted. "
| jkingsbery wrote:
| Yes, a good point, it does. Breyer's opinion does say the
| court is arguing that the API is copy-righted, but used under
| fair use (as opposed to not copy-righted, in which case fair
| use doesn't make sense). But my point about what seems to be
| the main distinction making it copy-right-but-fair-use is the
| declaration vs. implementation concern, a distinction that
| logically exists (so I think the outcome is correct!), but
| does not seem to legally exist.
| Daho0n wrote:
| >the court is arguing that the API is copy-righted
|
| No they specifically omitted saying this.
| jpollock wrote:
| Indirect is there to protect code that uses an API, not the
| API.
|
| Since it's API's all the way down, this is needed to protect
| any application on top of the BIOS/OS/HAL.
|
| Otherwise, very little would be protected by copyright.
|
| However, it's entirely possible that "indirect" is a word with
| a definition that is different to our understanding in legal
| documents.
| Black101 wrote:
| Does that mean that we can use portions of copyright code/text
| with no repercussions?
| Black101 wrote:
| thanks for the downvote you spineless user;)
| mindcrime wrote:
| This appears to be the "money quote":
|
| _We reach the conclusion that in this case, where Google
| reimplemented a user interface, taking only what was needed to
| allow users to put their accrued talents to work in a new and
| transformative program, Google's copying of the Sun Java API was
| a fair use of that material as a matter of law._
|
| Also, while I hate to just repeat things that have already been
| said, I feel compelled to say
|
| "What a relief!"
|
| because this would have been a complete disaster if they had
| gotten this decision wrong. In fact, I'm not sure "complete
| disaster" is a strong enough phrase to reflect what it would have
| meant for the software industry if this had come down the other
| way. So getting this looming disaster out of the way is a
| tremendous relief.
| BoorishBears wrote:
| I'm glad for the verdict but this is such bullshit.
|
| Google implemented exactly enough to create the illusion of
| letting people use their Java talents then dragged their feet
| with a half broken out-of-date language environment.
|
| And they did all this to save money, not some sort of noble
| rebellion or clever hack.
|
| > Sun offered a licensing deal of between US$30 and 50 million.
| Schmidt said Google would have paid for that license, but they
| were concerned that Sun had also requested some shared control
| of Android along with the fee.
|
| A pittance for Google but that vague "some control" sounds
| really bad right? Well fortunately there's a history here and
| we know from past licensing deals (J++) this control is
| enforcing interoperability with other Java implementation. And
| of course Oracle spells that out pretty easily:
|
| > Oracle states that Sun refused because Google's intention was
| essentially to fork Java to a Google version of the language,
| and to prevent it being inter-operable with other versions, an
| idea which was "anathema" to the "write once run anywhere"
| basis of the language.
|
| Google got a cheap license and the only stipulation was "don't
| fuck up the Java ecosystem by having your OS run Java-but-not-
| really" but that was too much for them and exactly what they
| ended up doing!
|
| I don't know why people are acting like this is some victory of
| open source. Maybe a victory _for_ open source, but championed
| by a greedy corporation that fragmented the Java ecosystem for
| years.
|
| I wish Oracle could have taken another angle here, they
| deserved damages from Google for this. Google literally pulled
| a J++ and got away with it.
| mindcrime wrote:
| _I don 't know why people are acting like this is some
| victory of open source_
|
| I don't know that anybody is saying that Google did anything
| specifically Good or Just or Noble or anything. The
| celebratory aspect is more based on all the Bad Things that
| would have happened in the future if this decision had come
| down in favor of Oracle.
| bobmalone123 wrote:
| It looks like you are saying that what Google did may be
| bad too, but you are happy anyways because it's good for
| some group of people (which may include you). This actually
| stifle innovation since companies will now consider that
| capital spent on designing APIs May be leveraged by their
| competitor simply stealing the API and save on that
| investment.
| kaba0 wrote:
| What bad things would have happened? This ruling
| specifically says that it was fair use, not that APIs are
| copyrightable - which seems to be the buggy man. As it
| currently stands, APIs absolutely fall under copyright
| laws.
| curt15 wrote:
| >As it currently stands, APIs absolutely fall under
| copyright laws.
|
| This opinion doesn't say so.
|
| "We shall assume, but purely for argument's sake, that
| the entire Sun Java API falls within the definition of
| that which can be copy-righted. We shall ask instead
| whether Google's use of part of that API was a "fair
| use."
| kaba0 wrote:
| It would be dumb to declare true the opponent's case in
| the argument, wouldn't it?
| UncleMeat wrote:
| No, it is a sidestep. _Even if_ the code is
| copyrightable, it doesn 't matter. The majority decided
| it was better to make a case for fair use than for the
| uncopyrightability of APIs. That's all.
| kaba0 wrote:
| My understanding is that the original problem was that
| there is nothing in law that makes a difference between
| actual implementation code and API. Otherwise it would
| have been a trivial case.
|
| And even in this, they rather go with the easier fair use
| claim that is case-by-case.
| dkjaudyeqooe wrote:
| Once you use someone's API, then they dictate where and
| when your program works, unless you rewrite your program
| to not use that API.
|
| Given the countless and fundamental APIs that are
| typically used in any program, do you not think that is a
| Bad Thing?
|
| Given that most programmers have assumed that to not be
| the case, it would be very bad for existing code at the
| very least.
| kaba0 wrote:
| Well, if you are looking at an API which's license
| explicitly forbids copying, I would stay away from
| copying it. While this case do give a precedent, it is
| much more about this specific case being a fair use
| according to the supreme court, than on whether APIs
| itself are copyrightable.
|
| Also, given most programmers' assumptions, I would not
| base much on that alone :D But IANAL, so do ask one, to
| be safe.
| notriddle wrote:
| If Android Java was illegal, it seems likely that GNU,
| Wine, OpenStack, the Mastodon client API, LibreOffice
| Calc, ... this ruling is limited enough that some or all
| of those might still be illegal, but at least the open
| source clone of `windows.h` that winelib distributes is
| probably safe.
| mindcrime wrote:
| _What bad things would have happened?_
|
| It would have become MUCH more dangerous to provide an
| alternate implementation of someone else's library or
| interface, which I believe would have have a profoundly
| negative effect on the entire software industry.
|
| _As it currently stands, APIs absolutely fall under
| copyright laws._
|
| Yes, but now there is a very strong precedent
| establishing the idea that copying those copyrighted
| API's is OK anyway (under Fair Use) under at least some
| circumstances. And based off the way the SCOTUS decision
| was worded, it strikes me (admittedly, IANAL) that the
| set of circumstances that are captured by this are pretty
| large.
| kaba0 wrote:
| IANAL, but it was always true that fair use made code
| exempt from copyright. Wine is alive specifically because
| of that.
| joshuamorton wrote:
| This case would have changed that has the rolling
| differed.
| BoorishBears wrote:
| That's literally the next sentence that you intentionally
| omitted.
|
| And I've seen _plenty_ of people paint Oracle as some evil
| boogeyman like this is some good vs evil struggle.
|
| Oracle wasn't trying to make Bad Things happen. They were
| seeking damages from a damaging situation, and if bad
| things had happened... I'd blame the patent trolls and
| judges that enable them.
|
| Their insanity continues regardless of the verdict after
| all, and there are plenty of otherwise reasonable takes
| ruined by their existence.
| kps wrote:
| > _I 've seen plenty of people paint Oracle as some evil
| boogeyman_
|
| "Don't anthropomorphize the lawnmower."
| BoorishBears wrote:
| That's exactly it, except here I would say someone stuck
| their hand in the lawnmower and got away with it.
|
| But people were upset the lawnmower tried to take the
| hand at all
| dkjaudyeqooe wrote:
| Are you familiar with Oracle's business practices? They
| are indeed evil.
|
| Google started out with the stated intent to not be evil
| but now they're allowing that possibly and are making
| good progress.
| mindcrime wrote:
| _Oracle wasn 't trying to make Bad Things happen._
|
| I didn't say they were.
|
| _They were seeking damages from a damaging situation,
| and if bad things had happened... I 'd blame the patent
| trolls and judges that enable them._
|
| The issue at hand is about copyright not patents.
|
| And note that I'm not saying that nothing bad can, or
| will, ever happen again. I'm just saying that the
| consequences of this decision coming down the other way
| would have been Very Bad, which makes the current
| decision a Very Good Thing in general.
| BoorishBears wrote:
| I didn't say you said that.
|
| Please read the comment again, slowly.
|
| You're saying "I've only seen people say we avoided very
| bad thing"
|
| I'm saying that's simply not the case, plenty of people
| are attaching some sort of morality to this.
|
| Edit: Case in point, the other reply to the comment is
| now one of those people.
|
| And patent trolls and their sympathetic judges are 100%
| the same people who would have frenzy fed here, many of
| then (most?) are also copyright trolls in the context of
| software. In case you didn't know.
| simonh wrote:
| That's a thorough miss-understanding and misrepresentation of
| the situation. It also has nothing to do with open source
| specifically.
|
| Google never promoted Dalvik as being a licensed Java VM
| implementation and never claimed it was a compatible Java
| runtime. The license was for logos and trademarks. As long as
| they didn't use those logos and trademarks, there's no
| violation of the license for those things. The API case is
| based on copyright, not trademarks or licenses so is a
| separate issue.
|
| This is why Microsoft could lose their dispute with Sun over
| the MSJVM which was a non-compliant JVM implementation, but
| still come out with J# which was an implementation of the
| Java language running on .NET.
|
| Microsoft licenses the Java trademarks and claimed the MSJVM
| was an implementation of the Java runtime, while breaking
| compatibility requirements for the license. Therefore they
| were in violation of the license. The .NET platform was never
| claimed to be anything to do with Java, so having Java code
| run on it in the form of J# was fine. The situation with
| Google using the Java language running on Dalvik is exactly
| analogous.
| BoorishBears wrote:
| This sounds like you read Jonathan Schwartz's testimony and
| almost misinterpreted it.
|
| The license _included_ using Java 's name and trademark and
| that was for _Sun 's_ benefit, not Google. Google wasn't
| asking to call it a Java phone. That's why part of the
| testimony is actually Sun saying _they 'd_ pay for that
|
| And the rest of your comment is completely missing the mark
| here.
|
| You're saying MS was in the wrong with J++ because they
| licensed Java.
|
| I'm saying MS was in the wrong because saying you're using
| language X then randomly not supporting parts of that
| language is a shitty thing to do when you have a large
| presence because then you start to fragment the language's
| user base.
|
| Copyright be damned. (Which is exactly why I said I wish
| they could have taken a different angle)
|
| -
|
| Logo or no logo, for years Google said you program Android
| in Java.
|
| Their "Java" did not track the language everyone else
| knows, using a strange smattering of features from 6 and 7
| in this weird hybrid that hobbled along.
|
| As a result there was plenty of confusion among developers
| about what worked on Android. As someone who has mostly
| held day jobs that involved Android for a decade or so now,
| I can confidently say it _was_ problematic and Android
| dragging its feet while being such a large platform caused
| people to avoid using language features.
|
| When Lambdas first landed for example, I remember multiple
| projects refusing to use them since there was no official
| way to support them on Android (retrolambda which was
| written by a former coworker of mine addressed this)
|
| This is so simple, Android should have licensed Java,
| created a compatible implementation, and kept it up to
| date. Would it have been hard? Yes. Would it have been
| better for Android developers who ended up using wonky work
| arounds, people learning Java and dealing with two sets of
| rules, and the Java ecosystem as a whole? Also yes.
| curt15 wrote:
| If Android's "Java" is so different, then how does Google
| benefit? The whole point of reusing an existing language
| is to jump-start the app ecosystem by allowing developers
| to make use of their existing experience.
| BoorishBears wrote:
| It's just different enough to be damaging?
|
| Like in Java 7 days Android didn't support NIO, randomly
| didn't support certain forms of exception handling, had
| random holes in library support (core Java libraries mind
| you, not the sun stuff)
|
| The odds you could take a random XML parsing library for
| example and use it in an Android project were low. Random
| namespaces would be missing, cryptic errors tied to
| missing language support, the works.
|
| Like you realize the idea of having a kinda-almost-the-
| same language being damaging is already known. J++ was
| not the same set of circumstances, but it shows that yes,
| you can make a language similar enough to benefit and at
| the same time be different enough to damage.
|
| I mean literally QNX had better support through some
| vendor we were using at the time, but somehow Google
| couldn't do better?
| dlubarov wrote:
| Can you be more specific about the differences your talking
| about? As far as I'm aware, Google never added their own
| features to the language itself. Granted, they were a bit
| slow to support new versions like Java 8. They also chose not
| to support libraries like awt, but I wouldn't consider those
| part of the Java language; rather they're part of Java SE.
| BoorishBears wrote:
| I already mentioned multiple above.
| Daho0n wrote:
| No, you mentioned things Google didn't implement. That's
| not the same as making it incompatible. In this case that
| would be Google _adding_ things to Java, not skipping
| some.
| mycall wrote:
| > Computer programs differ to some extent from many other
| copyrightable works because computer programs always serve a
| functional purpose.
|
| So a computer program instructs processors to do things while
| books do not necessarily instruct neurons to do things. This
| seems like a leap. I could write a book with NOP for every word
| or I could write a program with NOP loops. Are these really
| instruction to do things? Like so, books do instruct people (aka
| knowledge).
| HumblyTossed wrote:
| Yes a NOP is an instruction to do something. It tells the cpu
| to not change state for a period of time equal to how long it
| takes to execute the NOP.
| mycall wrote:
| How about in a higher level language? C program that is all
| semicolons vs. a book of all semicolons? Neither computer nor
| human is any more knowledgeable after reading it.
| HumblyTossed wrote:
| I haven't compiled a C program in years so I'm honestly not
| sure what an all ; program would do. But assuming it would
| just do nothing, well that is still an instruction to the
| computer. Delays are very meaningful. Serial communication
| is a great example.
| bryanlarsen wrote:
| It's interesting reading Thomas' dissent. As per typical Thomas
| appears to be arguing that it's the letter of the law that
| matters, whereas it's the majority opinion that the motivations
| and substance of the law are primary.
|
| Hackers and programmers tend to try and read the law like
| computer code to be "hacked" and exploited based on the letter of
| the law. So you'd expect us to be more sympathetic to Thomas'
| view. So this is a great example to smack hackers with when they
| try and "hack" the law, treating it like code rather than
| something more human. It's a great example because this is a case
| where the majority is obviously the "right" decision to any true
| code hacker.
| quotemstr wrote:
| I'm normally with the textualists on the court on the question
| of how we interpret the law, but in the case of copyright, the
| concept of "fair use" is _specifically intended_ as an
| "extension point" where the courts could do what seemed right
| in changing circumstances. I like strongly typed languages too,
| but there are legitimate uses for void*.
| ghaff wrote:
| That's a very good summary. This is a case where there
| probably is no legally "correct" decision based on the
| law/precedent. It comes down to fair use and to what degree
| you can reasonably extend it to this case. For most people
| reading this, the decision is the "right" one. But I'm not
| sure to what degree one side or the other is better supported
| as a matter of law/precedent.
| gfodor wrote:
| I strongly agree with the outcome but the cost in the other
| direction is good API design is a creative process. If you
| sit down and design a kick-ass API for a year, another
| person who re-implements is inheriting that design, and its
| benefits, for free. I do wonder if another case will wind
| its way up one day where the defendant lifted the API not
| for interoperability but because it was a clean or clever
| interface. (Seems a bit far fetched but would round out
| fair use further I think.)
| quotemstr wrote:
| Even if that happens, we'll still get beautiful APIs
| made. Copyright is a means to an end. Fonts, for example,
| are not subject to copyright, but we still see beautiful
| typefaces made.
| jacques_chester wrote:
| The majority opinion cited precedent ( _Feist_ ) that
| copyright is not intended to profit the creator. It's to
| advance the progress of arts and sciences. If someone
| copies your amazing API, that sucks for you, but it's not
| stopping the progress of arts and sciences.
| gfodor wrote:
| Yes fair point I misread the OP that they were strictly
| talking about the legal tradeoffs. I was more thinking
| what was the actual cost to creators under this version
| of fair use.
| lostcolony wrote:
| They kind of intentionally danced around that question
| with 'are APIs copyrightable'.
|
| Because here it's allowable for a product that isn't
| competing, and is being leveraged for
| interoperability/ease of users to adopt (rather than for
| how clean/clever it is).
|
| What if someone had copied Stripe early on, though?
| Stripe's big claim at launch was "payment processing in 7
| lines of Javascript" or similar. Obviously there were
| other barriers to entry, but what if someone else entered
| the market at that time with a similar (or even
| identical) interface? That question was left unanswered.
| bscphil wrote:
| > the concept of "fair use" was specifically intended as an
| "extension point"
|
| Yes, but to a textualist how the law was intended doesn't
| matter! (I'm mostly joking, I agree with what you meant to
| say here, I think.)
| TheMagicHorsey wrote:
| Judge Thomas is terrible.
|
| He simultaneously says that corporations have First Amendment
| rights to donate unlimited money to politicians, but have no
| First Amendment rights to moderate content on their social
| networks.
|
| He's a hack that just does whatever is best for conservatives.
| bpodgursky wrote:
| If your worldview is this simple, it is also probably very
| wrong.
| TheMagicHorsey wrote:
| Being concise isn't simplistic.
|
| I explained very clearly what the contradiction in Thomas'
| rulings is which leads me to my conclusion.
|
| You can have an opinion about whether that's right ... but
| its hardly simplistic.
|
| Being simplistic would be having the view that he's a hack
| without any evidence.
|
| I don't say he's a hack lightly. If you look at his
| decisions he uses one path of reasoning in one set of
| decisions and then uses the opposite path of reasoning to
| come to a different conclusion in a different set of
| decisions, depending on how the outcome needs to come out.
| And then he claims he's being textual. Its nonsensical.
|
| Edit: TBF you're being very simplistic assuming my comment
| illustrates a worldview. What worldview is that? Look at my
| comment history. I'm generally free-market and maximal-
| corporate rights ... aligned with Thomas. I just think his
| reasoning is flawed.
| chelical wrote:
| There is a massive difference in interpreting law vs code. Code
| can be patched immediately. New laws or changes to an existing
| law can take months, even years or decades to pass.
| VikingCoder wrote:
| No, when the code allows an exploit, that's a bug. Thomas is
| supposed to help us understand the intent of the code - what
| the Requirement was. Yes, it's better for us if the code
| reflects the intent perfectly. But to the degree that's not
| possible, we need someone to Interpret the code.
|
| Textualists are trying to ignore the fact that there's a
| difference between intent and implementation.
|
| The Legislature _should_ do a far better job making their
| intent clear. But to the degree they make mistakes, leaving the
| intent unclear in some situation, it 's good to have Case Law
| to inform us.
|
| I am not a lawyer. I don't know much about the law. But I do
| know metaphors, and when someone talks about exploiting the
| law, this is what comes to my mind.
| kmeisthax wrote:
| >The Legislature should do a far better job making their
| intent clear.
|
| That would require a wholesale redesign of creator's
| monopolies in software; CONTU basically said "oh yeah, judges
| can just use fair use to wriggle out of any market harms
| software copyright might cause" and Congress went with that.
|
| Furthermore, Congress's actions over the past few decades
| have generally not squared with any sort of actual copyright
| reform. The last major actions I can think of were:
|
| - Implementing the EU's reciprocal copyright extension so
| that Mickey Mouse could get more copyright protection in
| France (Sonny Bonno CTEA)
|
| - Implementing an overbroad and policy-laundered set of
| protections for DRM that companies took to mean "all you have
| to do is put software in a thing and you can sue anyone for
| making parts for it" (DMCA 1201)
|
| - Extending criminal copyright liability to filesharers (NET
| Act)
|
| - Granting more copyright term extensions to old music
| recordings that weren't federally copyrighted until the 70s
| (CLASSICS Act/MMA)
|
| The last thing I would ever want is to hear Congress's intent
| on any of these, as I would imagine it would sound something
| like "Fuck you, pay me". Australia, the EU, and the UK get a
| lot more shit these days for overbroad copyright laws, but
| this is mainly because doing so lets them rein in foreign
| tech companies. The US doesn't do that anymore because tech
| companies gained enough clout here to stop even more
| misguided copyright nonsense like SOPA/PIPA. However, with
| tech companies falling out of favor I wouldn't be surprised
| if Congress decides to start busting kneecaps again.
| lostcolony wrote:
| Tangent, but you said something I find really telling, in
| conjunction with OP's post.
|
| Textualism to its proponents is very much like exploiting a
| system; figuring out the exact rules it defines and finding
| workarounds. It may not even be to a person's own goals
| (hence the individual not feeling biased when thinking this
| way), but is enjoyable in its own right in finding those
| loopholes (like the meme of the referee allowing Airbud to
| play, "there's nothing in the rule book!").
|
| To its critics, it's like blindly implementing the ticket as
| written, rather than asking questions and making sure the
| intent is understood and the problem is being solved
| correctly.
|
| Which explains, in a surprisingly empathetic way, why I am
| not a textualist, and why some of my family are, when it
| comes to political discussions.
| zhengyi13 wrote:
| In the D&D world that I'm familiar with, we call these sort
| of people "rules lawyers", and there too, they ruin the
| game for everyone.
| lostcolony wrote:
| Oh, 100%. I shared Thousand Year Old Vampire with a
| relative that matches this, thinking his love of history
| would make it an interesting thing, and his response was
| "I can already think of ways to beat the system", even
| before he actually read the system. It's like...yeah,
| it's a single player pen and paper RPG. You probably can.
| Why...why would you though?
|
| But that's what I mean; exploiting perceived flaws in the
| system is a greater goal -even when it ruins the game for
| themselves-. Because there is a greater sense of
| satisfaction in finding loopholes. And I understand that
| sense; I just find more value in understanding the
| underlying goal and intent and delivering on that.
| ncmncm wrote:
| Textualism invariably turns out to be a shuck: people who
| claim to be textualists are textual only when they can find
| a way to make textualism produce the answer they wanted.
|
| Legal language is slippery enough that this is almost
| always possible. On the few occasions when it is not
| possible, we learn the truth. Scalia famously revealed his
| true colors on occasion.
| dpifke wrote:
| My understanding of strict textualists' arguments
| (especially Gorsuch), is that they view it as a separation
| of powers issue.
|
| By only looking at the text of the statute, the Court--
| which consists of unelected officials with lifetime terms--
| is trying to limit its power. If the text is unclear, they
| feel it should fall on elected officials to clarify it.
| lostcolony wrote:
| Certainly, but there's a problem with that. Because an
| outcome will still happen; an outcome determined by the
| law, -and its interpretation-. Even an interpretation of
| "we should (overturn lower court's decision/uphold lower
| court's decision) because the law is unclear" is an
| interpretation of the law.
|
| After all, it is as equally fair to say "The wording of
| this law leads us to a clear understanding of the intent
| to mean X, and if the legislative body feels that to be
| in error they should pass new legislation to clarify it"
| as it is to say "The wording of this law leads us to an
| unclear understanding, and irrespective of intent we will
| decide !X until the legislative body passes new
| legislation to clarify it".
|
| While the non-textualists may be explicit in trying to
| understand the intent of a law in accordance with their
| own biases, the textualists are still interpreting the
| law according to their own biases. There have even been
| some...really interesting cases of logic to try and do so
| (i.e., earlier generations' understanding of 'sex'
| matters when interpreting anti-discrimination statutes,
| but earlier generations' understanding of 'gun' does not
| matter when interpreting the 2nd amendment). It's
| incredibly rare (pretty much unheard of in the case of a
| few of them) for them to decide against their own
| predictable biases because a law is ambiguous, or a
| situation is novel.
| flyingfences wrote:
| > Textualists are trying to ignore the fact that there's a
| difference between intent and implementation.
|
| I would say that they are not so much trying to ignore the
| fact as acknowledging the fact but taking the position that
| it the court's role to interpret the implementation, not to
| guess at the intent.
| VikingCoder wrote:
| Lower courts: "Wait, did you mean LESS THAN, or LESS THAN
| OR EQUAL?"
|
| Supreme Court: "For now, we'll presume LESS THAN OR EQUAL."
|
| Legislature: "Wait, we meant LESS THAN."
|
| We need a decision NOW. The Supreme Court supplies a
| decision NOW. The Legislature can change it.
|
| Interpreting the implementation demands guessing at the
| intent on the edge cases. It can't not. Even if your
| preference is to always pretend the language is absolute.
| VikingCoder wrote:
| The legislature can't fix all bugs. Case Law exists for a
| very good reason.
| isignal wrote:
| And to complete their viewpoint, it is the legislature's
| job to patch "exploits" by rewriting the code (laws).
| UncleMeat wrote:
| > Textualists are trying to ignore the fact that there's a
| difference between intent and implementation.
|
| It is actually the opposite. Textualists say that intent
| doesn't mean squat. Originalists will consider intent.
| Textualists say that intent is unknowable and therefore you
| must exclusively use the text of the law, regardless of how
| stupid that might seem.
| dragonwriter wrote:
| > Textualists say that intent doesn't mean squat.
| Originalists will consider intent.
|
| In practice, textualism and originalism aren't all that
| different, because most of the same indicia that
| originalists will look to for signs of "original intent"
| textualists will look to for signs of what the words of the
| text mean in their original context (textualists are not,
| as a class, blind to context). While different observers
| will weight the individual indicia differently, the
| variation within the textualist and originalist camps on
| this is more significant than that between the camps. The
| camps really mostly differ in how they tend to frame
| arguments from the same facts to the same conclusions.
| Sohcahtoa82 wrote:
| I blame Textualists for the existence of legalese.
|
| Laws and contracts are so damn hard to read because they
| need to close every possible conceivable loophole. You get
| sentences that use multiple synonyms of the same verb
| because someone is going to come up with some strange
| incredibly-specific difference between them.
|
| Imagine some parent telling their kid to not jump on the
| bed, and the kid says "I'm not jumping, I'm hopping!".
| That's a kid that's going to grow up being a Textualist.
|
| > Textualists say that intent is unknowable
|
| I think Textualists are claiming this in bad faith, knowing
| damn well that intent is very well knowable, but argue
| otherwise to advance their agenda.
| andomar wrote:
| "Following the letter of the law" means ignoring Congressional
| intent. It allows the judge to choose one of the many possible
| readings of a statute.
|
| So in effect, "following the letter of the law" enlarges a
| judge's discretion. The opposite of what you would expect.
| jessriedel wrote:
| No, not generally. Congress is 545 different people, who
| definitely don't have a coherent collective intent. The only
| thing they did collectively was pass the text of the law.
|
| So any coherent notion of "congressional intent" has to mean
| _the intent a person reading the text would infer about a
| hypothetical coherent author_. I don 't know anything about
| this particular case, but it is not at all true in general
| that there are more ways for a reader to interpret the
| explicit meaning of the written words than there are ways for
| a reader to interpret the intent of the written words.
| wslack wrote:
| I think the intent is usually found in statements made by
| drafters of the legislative language. Intent is not
| packaged in the raw text of statute.
| [deleted]
| jcranmer wrote:
| Thomas's analysis pretty much starts from the conclusion that
| Google made _billions_ off of Android, so therefore how could
| anything it be copied be fair use? He cloaks this analysis
| somewhat by arguing that the distinction between declaring and
| implementing code must be meaningless because Congress didn 't
| lay it out explicitly in law, but for the person who actually
| broached the question of what other factors might influence
| fair use during oral arguments, it's pretty unintrospective
| about the analysis itself.
| tantalor wrote:
| The argument from the text could go the other way: Congress
| didn't mention declarative code in the copyright act, so it's
| not included.
| 1980phipsi wrote:
| Thomas says the copyright act says any computer code called
| directly or indirectly. The Thomas argument is that this is
| an indirect use of code.
| tantalor wrote:
| Thomas doesn't understand basic computer programming, so
| I wouldn't put much weight on that nuanced view.
|
| "Indirect" here just means calling a function or jumping
| to some address, rather than directly inlining some
| statements.
|
| For the purpose of copyright, the term "computer code"
| does not include the signature of that function, or the
| address you jump to, only the actual code statements at
| that destination.
| wslack wrote:
| Which, I would argue, is out of step with how that
| language was understood at the time the legislation was
| drafted.
| InsaneOstrich wrote:
| He probably owns a bunch of Oracle stock
| jcranmer wrote:
| Justices routinely recuse themselves if they own stock in a
| company arguing before the court.
| ncmncm wrote:
| Thomas aggressively refuses to recuse himself from cases
| that other justices consider an obvious conflict of
| interest.
|
| But they have no authority to enforce their opinion, and
| Thomas absolutely doesn't care. He didn't become a judge
| to rule on things he has no opinion on. For him,
| conflicting interest makes it that much more important to
| keep his hands in.
| paulmd wrote:
| Thomas didn't recuse himself when ruling on court cases
| filed by the advocacy group his wife is a leader of. It's
| all voluntary, if a Supreme Court justice chooses not to
| recuse themselves there is no higher court to force them.
| rodgerd wrote:
| If I were attributing bad faith to Thomas - and given that
| he ignores court norms on recusing himself, that doesn't
| seem like too much of a stretch - I would be more likely to
| ascribe to him a desire to see "liberal Silicon Valley"
| punished than anything else.
|
| Thomas is an incredibly political beast, to the point that
| Scalia wrote him off as an unprincipled nutjob.
| Boxxed wrote:
| > Hackers and programmers tend to try and read the law like
| computer code to be "hacked" and exploited based on the letter
| of the law.
|
| Speak for yourself. There are plenty of us that understand you
| can't take the human element out of this.
| dundarious wrote:
| They said "tend to"...
| kemitchell wrote:
| > It's a great example because this is a case where the
| majority is obviously the "right" decision to any true code
| hacker.
|
| https://en.wikipedia.org/wiki/No_true_Scotsman
|
| Have you spoken to any professional language or API designers
| about this case? Would all "true code hackers" agree that
| copyright shouldn't apply to software at all?
| anonymouse008 wrote:
| After experiencing 'good' and 'bad' API design, I'm really hoping
| that people who invest in creating great APIs get to benefit from
| their hard work even after this.
|
| This decision doesn't appear to speak to why the 11,500 lines
| were actually important, other than to 'steal' developers away
| from Java - which in effect is poaching without the hard paper
| trail and paystubs.
|
| So in the end, I find this setting us all up for the real
| battle... the utility of APIs and languages, which will bring us
| back to settle squarely what is a 'utility' & 'design' patent,
| and what is a copyrighted material.
|
| I'm curious to know who will take it up -- I doubt anyone of
| consequence will be copying APIs after this.
| [deleted]
| LogicUpgrade wrote:
| Honestly this stands contrary to almost every principle of fair
| use (transformative work of different character for the purpose
| of comment, parody etc.).
|
| Google took tons of APIs from a platform and implemented them
| into... a platform.
|
| If you think designing thousands of classes is not substantial
| that's a very different argument, different from fair use.
|
| Fair use means yes, APIs are copyrightable, but this is
| transformative use. And, to anyone with a clue in software dev...
| no it's not.
|
| It's basically like taking someone else's script as-is and
| shooting a movie from it, and the court deeming this use of a
| script "fair use".
| topicseed wrote:
| Is a restaurant menu copyrightable?
| anticensor wrote:
| Recipes and menu listings are not. The artistic layout of the
| menu is.
|
| Disclaimer: IANAL
| topicseed wrote:
| Artistic layout... The formatting?
| curt15 wrote:
| "On the other hand, Google's copying helped Google makea vast
| amount of money from its Android platform. And enforcement of the
| Sun Java API copyright might give Oracle a significant share of
| these funds. It is important, how-ever, to consider why and how
| Oracle might have become entitled to this money. When a new
| interface, like an API or a spreadsheet program, first comes on
| the market, it may attract new users because of its expressive
| qualities, such as a better visual screen or because of its
| superior functionality. As time passes, however, it may be
| valuable for a different reason, namely, because users, including
| programmers, are just used to it. They have already learned how
| to work with it. See Lotus Development Corp., 49 F. 3d, at 821 "
|
| Interesting to see SCOTUS citing Lotus v Borland, which was
| originally deadlocked at 4-4 (although Breyer seems to have voted
| in favour of Lotus back then). Does this elevate the precedential
| value of Lotus?
| samgranieri wrote:
| Thank God.
| Silhouette wrote:
| From a quick scan, the majority opinion here seems reasonable. I
| suspect it is what almost everyone working in programming would
| have considered the "right" answer.
|
| The dissent is worrying, though. For a pivotal case that would
| have had a profound adverse effect on the future of software
| development had it been decided the other way, there seemed to be
| a disturbing lack of appreciation of the fundamental issues in
| play, particularly the practical reasons that programmers
| separate interface and implementation and the implications of
| this for interoperability.
| abhv wrote:
| Which of Breyer's clerks drafted this? They clearly understand
| many tech issues and I hope they find their place on some Federal
| circuit to herald an era of logic in tech law.
|
| "Google's limited copying of the API is a transformative use.
| Google copied only what was needed to allow programmers to work
| in a different computing environment without discarding a portion
| of a familiar programming language. Google's purpose was to
| create a different task-related system for a different computing
| environment (smartphones) and to create a platform--the Android
| platform--that would help achieve and popularize that objective.
| "
|
| ...
|
| "Here the record showed that Google's new smartphone platform is
| not a market substitute for Java SE."
|
| ...
|
| "Google copied these lines not because of their _creativity_ or
| _beauty_ but because they would allow programmers to bring their
| skills to a new smartphone computing environment. "
|
| ...
|
| "the Court concludes that Google's copying of the API to
| reimplement a user interface, taking only what was needed to
| allow users to put their accrued talents to work in a new and
| transformative program, constituted a _fair use_ of that material
| as a matter of law. "
| carlhjerpe wrote:
| "Here the record showed that Google's new smartphone platform
| is not a market substitute for Java SE."
|
| Does this mean that companies copying the S3 API as a
| substitute for S3 are still untested territory?
| smsm42 wrote:
| Strictly speaking, yes - this decision, as many other SCOTUS
| decisions, is tailored to specific case and leaves the other
| situations to be argued on their own merits. But having
| definite precedent in the situation where API has been
| recognized as non-copyrightable both sends signal to the
| lower courts about where SCOTUS leans, and to the potential
| plaintiffs about their chances to ultimately prevail. It is
| not a definite solution for all cases, but it shifts the
| calculus to the side of "if you sue for copyright
| infringement about S3 API, it'd be an uphill battle for you
| and probability to lose is high".
| ghayes wrote:
| And remember that Fair Use is a four-part balancing test.
| Thus, a single factor shifting will still have to be
| weighed against the rest. Also, for the S3 APIs, you're
| also talking about using even _less_ of Amazon's
| copyrighted code (e.g. a dozen function signatures compared
| to millions of LoC).
| comex wrote:
| Theoretically, yes. But such companies would also have the
| ability to argue that their API was fully interoperable with
| S3, a factor counseling in favor of fair use. Google could
| have talked about interoperability in this case too, but for
| some reason didn't; see my other comment [1].
|
| https://news.ycombinator.com/item?id=26701488
| 6gvONxR4sf7o wrote:
| Another way to read that would be that the S3 API isn't a
| substitute for S3, and so another company using the S3 API
| could be fine so long as they don't copy the code for S3
| itself?
|
| My impression is that this is probably nuanced enough we need
| to read past the syllabus if we wanted to really unpack the
| reasoning. I can't tell which is the key part from which to
| make an analogy.
| ethbr0 wrote:
| _" Held: Google's copying of the Java SE API,_ which included
| only those lines of code that were needed to allow programmers
| to put their accrued talents to work in a new and
| transformative program, _was a fair use of that material as a
| matter of law. "_
|
| If the un-italicized is the new test, that's probably the most
| reasonable thing I'm going to read this month. And it's only
| the 5th.
| gred wrote:
| They didn't establish a new test, they applied the existing 4
| tests / factors and found that they indicated fair use. The
| first 2 or 3 pages contain a description of the 4 tests and
| how they were found to apply in this case.
| ethbr0 wrote:
| Not entirely. Per my understanding, this is a fairly big
| shift:
|
| _" The fair use question is a mixed question of fact and
| law. Reviewing courts should appropriately defer to the
| jury's findings of underlying facts, but the ultimate
| question whether those facts amount to a fair use is a
| legal question for judges to decide de novo. This approach
| does not violate the Seventh Amendment's prohibition on
| courts reexamining facts tried by a jury, because the
| ultimate question here is one of law, not fact. The "right
| of trial by jury" does not include the right to have a jury
| resolve a fair use defense."_
|
| Or to put it another way, convincing a jury that something
| is or isn't fair use is very different than convincing
| precedent-bound judges, especially with this on the books
| as the controlling case.
|
| In final impact, it seems like an incredibly good judgement
| for everyone: you can prove to a jury what was / wasn't
| copied, and then a judge will apply a standard fair use
| test over those facts, with a tendency towards allowing
| transformative use.
|
| Legal protections against copying, room for progress, and
| (most importantly!) more certainty and standardization in
| how cases are decided.
| torstenvl wrote:
| That analysis is addressing an argument that the Supreme
| Court could not overturn the finding that it was not fair
| use. That argument was based on the Seventh Amendment's
| reexamination clause. The Supreme Court held that the
| reexamination clause did not prevent it from addressing
| this issue, _because_ the question is a mixed question of
| law and fact, i.e., it 's a legal conclusion based on
| evidentiary facts. The Supreme Court cannot re-examine
| the "underlying facts," but the Seventh Amendment does
| not preclude it from deciding, as a matter of law,
| whether those underlying facts constitute fair use.
| ethbr0 wrote:
| It, or other reviewing courts. So the net effect will be
| to hopefully create more consistency around fair use
| defenses. Which is good for innovators.
| gred wrote:
| That may be true, I remember there was quite a bit of
| surprise when the Court of Appeals overrode the fair use
| jury finding (not so much because they decided
| differently, but rather the fact that they set aside the
| jury's finding at all).
| lostcolony wrote:
| Well, it sounds like it's still the same test; it's just
| deciding that fair use cases must be decided by judges,
| not by juries. Which, as you say, seems like a good
| decision.
| gyc wrote:
| > Which of Breyer's clerks drafted this? They clearly
| understand many tech issues and I hope they find their place on
| some Federal circuit to herald an era of logic in tech law.
|
| Breyer also has a brother who was a District Court judge in the
| SF Bay Area who's undoubtedly had to deal with various tech
| cases. Not saying there's any kind of shared knowledge of tech
| within the Breyer family but just kind of interesting.
| supernova87a wrote:
| It is not publicized which of the Supreme Court clerks helped
| author an opinion, for definite reasons.
|
| What you will likely see is in a couple years, one or two of
| the clerks start to appear as law professors or judges
| involved in such cases.
| datavirtue wrote:
| "Here the record showed that Google's new smartphone platform
| is not a market substitute for Java SE."
|
| Well that nukes it. The courts took how long to identify this
| precedented principle? It seems like the rest of the opinion is
| just there to ward off more of this tomfoolery for people that
| don't get it.
| paulmd wrote:
| The lower courts have been frankly awful about refusing to
| acknowledge the rulings that SCOTUS has been handing down
| about software and technology in general. For example _Alice
| Corp v CLS Bank International_ basically put an end to the
| validity of "[generic idea or business method], but _on a
| computer_ " patents and the lower courts have basically said
| "haha ok great but we're not doing it", continuing to rule on
| "on a computer" patents as if they were valid, and with the
| patent office continuing to issue such patents.
|
| Obviously this is copyright vs patent law but it goes to
| establish that there's been a big problem with the lower
| courts on "computer laws". It's a nexus of the problem with
| jurisdiction-shopping (finding a lower court that wants to
| keep lots of cases coming in and is willing to pump out
| questionable decisions to do so) and just the legal system
| being about 30 years behind the times in general in terms of
| understanding computers and how innovative a particular idea
| may be.
| schneidmaster wrote:
| Breyer has actually been writing on these issues for quite some
| time; see for example his article "The Uneasy Case for
| Copyright: A Study of Copyright in Books, Photocopies, and
| Computer Programs" [0] -- published in the Harvard Law Review
| in _1970_. His overall body of work demonstrates a pretty good
| understanding of the underlying technical issues, and he has
| been a reliable ally on the bench in this area.
|
| [0]: https://www.jstor.org/stable/1339714?seq=1
| jmull wrote:
| Why do you think Breyer and the other assenting justices
| wouldn't be able to come to this kind of decision without a
| clerk taking the lead?
| kristjansson wrote:
| Acknowledgement of the actual process of drafting opinions
| like this?
| layoutIfNeeded wrote:
| Thinly veiled ageism.
| supernova87a wrote:
| I think you might be surprised at how deftly Supreme Court
| justices are able to see through specific tech issues to
| identify the core dispute at hand and how decades-old laws
| and regulations should (or should not) apply.
|
| If anything, they are even better with age at not getting
| confused by increasing technical detail of our API era, and
| making sure that the principles of law cut through that.
| (and how to structure a decision so it's clear to everyone)
|
| If you relied on a tech-heavy decision to be made, this
| would not be a Supreme Court issue.
| albntomat0 wrote:
| I believe the parent commenter was highlighting the
| particular wording of the opinion, rather than the actual
| decision itself.
|
| One could imagine an opinion supporting the same decision
| with less clear or precise language. As I understand the
| process, the opinion was frequently reviewed and advised by
| Breyer, but actually written by one of the clerks.
| supernova87a wrote:
| Knowledge of how the justices work.
|
| The way that the Court and every one of the justices work is
| that he/she will draft out with the clerks the broad
| principles and approach that he/she wishes the decision to be
| crafted around. Which cases influence the precedent, which
| regulations take what role in the decision, what issues to
| "turn" the case on, etc.
|
| It's the job of the clerks then to go research, summarize,
| and create the bulk of justice's position based on knowledge
| of the details. They (justice + clerks) then review and talk
| about the evolving draft opinion several times over the
| course of months, circulating drafts to the other justices
| (and their clerks) as well. And note, most of the
| facts/issues already came up in the lower courts cases and
| rulings, so there has already been some fair surfacing of the
| details of the dispute (and what other judges believe the
| important issues to be) as it made its way through the
| system.
|
| The justices have many opinions per term to do this for, and
| you can be very sure that while the "authoring" justice has
| been briefed on (and very well has tested the ideas with the
| clerks in detail), the summary of how APIs work and their
| legal status is not based on the justice him/herself wading
| through license agreements and "figuring out" the structure
| of the code or its legal status.
|
| So, that is not to say that the justices are ignorant of the
| details (far from it), but the level of detail needed to form
| the groundwork of the opinion is heavily shouldered and
| created by the law clerks. But the main conclusions of the
| opinion are definitely of the justice him/herself (with input
| from the clerks).
|
| -- By the way, the clerks (you may not realize) already have
| had a role in getting the case even to be heard before the
| Supreme Court, in briefing and summarizing the underlying
| appealed case on why it should be ripe for a decision, so
| they already many of the issues at stake and how to think
| about them.
|
| Maybe think of it like a software engineering manager and the
| individual developer. The manager can lay out the principles
| by which a certain piece of code is to be written, and the
| capable developer will identify all the issues, test cases,
| etc., and they will review it together at various stages. You
| would not say that either could have done it without the
| other. It's kind of like that (when software engineering
| works like it should).
| spullara wrote:
| How much precedence does this carry for other cases or does
| each instance of "fair use" need to be evaluated by the Supreme
| Court before we know if it was legal?
| comex wrote:
| Precedent works by analogy. What matters is not just the
| outcome of a particular case, but the reasoning. When similar
| legal questions come up in future cases, lower courts are
| required to cite this case and follow the same reasoning, to
| the extent the reasoning applies to the facts of that case.
| Of course, no two cases have exactly the same facts, and
| different facts may produce a different outcome. But if a
| future case is similar enough to this one, the lower court
| will be expected to compare the two cases and explain _why_
| the differences in facts justify a different outcome.
|
| No legal question is resolved for sure until it reaches the
| Supreme Court, but most cases never make it there, instead
| being resolved by lower courts applying higher courts'
| precedents.
| abhv wrote:
| UPDATE: based on Wikipedia [1], the "API" was likely saved by
| one of these people (all likely in their mid-20s!):
|
| Emily Barnet, 2020, Yale (2015)
|
| Diana Li Kim, 2020, Yale (2017)
|
| Arjun Ramamurti, 2020, Yale (2018)
|
| Daniel Richardson, 2020, Virginia (2018)
|
| Brittany Jones-Record, 2020, Stanford (2016)
|
| David Scott Louk, 2020, Yale (2015)
|
| Elizabeth B. Deutsch, 2021, Yale (2016)
|
| Joel F. Wacks, 2021, Chicago (2018)
|
| [1]
| https://en.wikipedia.org/wiki/List_of_law_clerks_of_the_Supr...
| jsjsbdkj wrote:
| A supreme court clerkship is very impressive, but "saved by
| one of these people" is strong. My understanding is the
| justices have a conference, stake out their positions, and
| then the chief assigns cases based on who can attract a
| majority to their opinion. So Breyer presumably had a
| rationale that could get at least 4 concurrences in
| conference. It's possible for the other justices to later
| change their minds based on the actual opinion the chambers
| produce, but that doesn't seem to be the case here. It's also
| possible the case was just assigned based on workload,
| considering the 6-2 split, almost anyone could have written
| it.
|
| In other words, the clerks do the work of researching and
| fleshing out the finished opinion, but I don't think they
| have much influence on the rationale used to decide the case.
| I've heard stories of clerks having to write opinions they
| personally disagreed with.
| stupendousyappi wrote:
| Breyer was a prominent copyright law scholar before he
| became a judge. Between that, and the fact that he hasn't
| gotten many opportunities to write majority opinions in his
| 27 years on the court, and the fact that he's likely about
| to retire in a few months, giving him the opinion was the
| obvious and collegial thing for Roberts to do.
|
| I'm biased, but I don't think the technical elements of
| this case were challenging to an intelligent layman. I
| think most people smart enough to become judges can
| understand the concept of an interface that is independent
| from an implementation, which is all this case really
| required, along with quantitative estimates of the amount
| of code involved. So I doubt that he needed clerks to
| understand any of it.
| supernova87a wrote:
| While the Supreme Court justice authoring the opinion will
| have laid out the broad principles and legal framework upon
| which he/she wishes to make the decision, the law clerks
| have a central role in crafting the opinion and making sure
| that the arguments and reasoning are sound.
|
| By the very nature of the court's operations, the justices
| cannot be writing the 30 page opinion and doing all the
| research on every case. The clerks are the ones who will be
| writing most of the summary, determining how certain cases
| influence the current case, and laying out the draft logic.
| They'll have many sessions with the justice to test the
| logic and find edge cases, implications, and make sure that
| a decision affecting millions of people is sound. Basically
| debate and draft/redraft the opinion (with other justices +
| clerks as well) based on what they're finding as the
| drafting continues.
|
| I would say the clerks are indispensable to the creation of
| the opinion's outcome.
| kyrra wrote:
| While Breyer wrote the piece, it was a single majority piece,
| which means all 6 justices agreed on it. The other 5 justices
| and their clerks were all effectively editors on the majority
| opinion.
| c-smile wrote:
| Thinking out of box.
|
| Am I right that this may essentially end Dart project at Google?
|
| As far as I understand Dart was an attempt to have another Java
| in case that Oracle/Google conflict will not go anywhere.
|
| As soon as Google will be able to use Java on dart platforms
| there will be no need for Dart.
|
| Just guessing.
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