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TwiceHorn last won the day on November 23 2019

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  1. Good post. The Court has been majority Catholic for 35 years, I believe, since 1985. That's a strange fact in and of itself. But, Catholics aren't monolithic even if Catholicism is anti-abortion. A variety of things make me uneasy about Amy Coney Barrett, but Catholicism alone is not one of those things.
  2. One thing about those mid-late 70s plastic boards is that they were a real step up from the previous wood decks with clay wheels and crummy roller skate trucks. Nash Manufacturing out of Fort Worth was one of the big makers of those. Even when you moved up from the Big Banana, glass decks were the thing and I was a little shocked when I saw wooden decks were back in vogue. About 20 years later, Nash was a client of mine but by then they were making wakeboards and boardsurfing rigs and whatnot, with just a few low-level skateboards and skates.
  3. Agree with the post with one small exception. I think ND law is a "top tier" law school. It's just not one of the elite handful from which justices are usually drawn. If your basic credential is academia, though, it should probably be at the absolute highest level. And even then, it would be troubling.
  4. Yep. Very common area for dispute. Something dumb like napkins with logo are really expensive. Franchisee gets tired of paying for them, gets their own made, gets busted. Franchise terminated, sued for breach and for trademark infringement. It's a fuck.
  5. Such bullshit. I am perma-irked by where Section 101 has gone.
  6. I have tried to spin out some hypotheticals related to the Google case that might call into question the legality or legitimacy of copying an API. Apparently with no success. While I get that Google copied the Java API to make its software compatible with Java (or more accurately either to be compatible with existing code or to make their VM compatible with existing Java coding standards), I have a slight question as to the legitimacy of doing so, when the software it sought compatibility for was not Java but its own variant. I also have some theories about how this case may have "gone awry" for Google. Sometimes the way a case gets tried and adjudicated makes it a bad one for appeal. This appears to be one of them. One key thing is that Alsup probably would have been better off not letting this case go to a jury, that is by granting summary judgment and letting Oracle appeal that without having some inconsistent jury findings to contend with. Also, sometimes when you have a plaintiff asserting a pretty skimpy case, as seems to be the case here, as well as when a defendant has a scorched-earth defense mentality, which is almost always the case with Google, you get weird results.
  7. Am I correct in remembering that you had Section 101 eligibility problems that you were unwilling to fight to the death?
  8. I do not have modern software development experience, true. But I do get it. In most cases an "API" in a single, highly literal form (meaning precision as to declaration statements and the form and format of data employed), is necessary for cross-compatibility between software. It is not very creative by nature because its content is dictated by the pieces of software that it is interfacing. If that interface is to be achieved, it is going to be necessary to verbatim copy the "API." Are we clear? I am simply unwilling to concede as a legal matter that ANY copying of ANY "API" under any circumstances is NEVER going to result in copyright infringement. Because that is the rule that Google wants. Clear?
  9. One of the reasons I have for having kind of a hard on for this case is something that happened in the patent arena some years ago. Because of trolls, entities like Google noodled around and found a "new" attack on the validity of patents. It's not really a new idea in the patent law, but it had been sparingly applied to render them invalid. This attack was "eligible subject matter." It is actually somewhat related to the copyright question in that just as a copyright cannot cover an idea or a function, a patent cannot cover an "abstract idea." The beauty of this attack, or ugliness, as it were. is that unlike the conventional attacks on the validity of a patent, "eligibility" can be asserted as a "matter of law," so it can be used very early in a litigation to invalidate a patent without the usual discovery and analysis of the conventional validity defenses of obviousness and anticipation. Patent eligibility is not a "bright line rule." But it is sort of analogous and is used in litigation in a similar way. EDIT: maybe it is a bright line rule, but the experience with it proves that bright line rules can provoke a ton of litigation rather than reducing it. The problem is that it has gone way beyond quickly invalidating shitty troll patents. It has had all sorts of unintended consequences and taken on a life of its own in contexts where shitty troll patents are not at issue. Bernorange himself has been victimized by this, as his software-related patents, IIRC, were denied as being not directed to eligible subject matter. Without knowing the specific subject matter, I am going to guess that Bernorange had no desire to get a shitty troll patent, but he wound up not getting patents at all. Boo. Software copyright is a far less active area than software patents, so the likelihood of adverse unintended consequences is somewhat less. By the same token, any advantages conferred by a bright line rule against copyrightability will be far less significant.
  10. I don't give a fuck about anymore software copyright cases. I did them in the 90s when they were viable. They're generally not viable anymore. I'm never going to handle one again, in all likelihood, and neither is anyone I know. The status quo ante is that an "API" however defined is just another piece of software subject to the same rules of copyrightability and infringement as any other. All software gets very narrow copyright protection. I don't really care whether Google or Oracle wins this case, except in one respect. As it currently sits before the Supreme Court, Google is asking for a rule to treat an "API," actually the terminology at issue is "programming interface," is subject to an entirely new rule that it is never copyrightable. That kind of rule is a bad idea. You may have thought as a programmer that the highly functional/non-expressive nature of an "API" meant that it was not copyrightable, or at least not a good candidate for a copyright infringement case. And you would be mostly correct, but it's a result of its nature after analysis, not its labeling as an "API" or "programming interface" or any simple rule recognized in the law that it isn't copyrightable. I simply believe that a rule that says "A programming interface is never copyrightable" is not a good policy. I think the nature of the software and the nature of its copying should be considered and confirmed as either "not copyrightable" or "not infringed" if copied in the usual course of providing cross-compatibility. Furthermore, if you think that a bright line rule that "a programming interface is not copyrightable" is going to immediately dispose of all suits that involve "programming interfaces," you are probably mistaken. To the extent anyone bothers to assert a copyright infringement claim over a "programming interface," there is still going to be substantial litigation over whether the "programming interface" is, in fact, a programming interface having the characteristics that make it either uncopyrightable or copyrightable, but very difficult to infringe the copyright.
  11. As previously stated, I'm an engineer. BSME 1988. I know how to write software and mostly how it works. I have written code in BASIC, FORTRAN, C, and Pascal and a number of macro-type languages. A lot of the FORTRAN programming was "front end" for Finite Element Modeling software, that involved use of something akin to an API. Some of the FORTRAN programming employed calls to standard mathematical library routines. I also took a course on 8086 assembly programming. I don't code for a living. I've never written an API. I understand and acknowledge your basic point. How many times do I have to state that in the overwhelming majority of "API" cases, there is going to be no copyright infringement because of the functional nature of "APIs." You refuse to acknowledge the differences between your basic point and what happened here. Also, you have a technocrat's view of "basic facts." You're in the legal arena right now where words matter and very specific facts matter, not generalizations about the functionality of software. They create precedents that have meaning to other lawyers if not to programmers.
  12. A sidenote on the technical competence of courts. The Court of Appeals for the Federal Circuit was created in 1982 to exclusively hear appeals of patent cases. It was the result of decades of debate over the technical competence of US courts to hear patent disputes. Few of the judges are actually technically trained, but as mentioned earlier, they have in addition to law clerks, "technical advisors" of all technical disciplines including PhD level EEs and CSs. Also MEs and biotech people. One of the early knocks on the Federal Circuit was that it was reaching "technically correct" decisions for the case in front of them, but fucking up the "law" for broader application. Alsup may have reached the correct decision in this particular case, but the precedent it was to create, particularly extended as Google wants to do to a bright line rule against copyrightability, is probably a bad result.
  13. He could have just as easily said the same thing but exchanged this conclusion: But it is nevertheless a command structure, a system or method of operation — a long hierarchy of over six thousand commands to carry out pre-assigned functions. For that reason, it cannot receive copyright protection — patent protection perhaps — but not copyright protection. For something like this: Nevertheless, copying this material, which although creative and original, is highly functional and was copied in order to achieve this function, does not and cannot constitute copyright infringement. In this context of copying, the idea and the expression embodied in the copied code have merged and the copying is therefore not actionable infringement. Voila, he has reached the desired result without making broad pronouncements about copyrightability.
  14. That's pretty much it: local opposition. We can't have "colonies" anymore, so we give them half-ass representation most of the protections of our laws. We can't annex a state over its population's objection.
  15. See, everyone blunders. At least brisket isn't a morphadite.
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