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Google v. Oracle (Supreme Court Copyright Case)


TwiceHorn

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1 minute ago, TwiceHorn said:

THIS IS NOT THE USUAL CASE.

And I'm saying from an exclusively technical perspective, not a decades-old legal perspective, this IS the usual case for how compatibility layers for runtime environments work. I'm not sure of what makes this unique from any other cleanroom rewrite of a compatibility software either on a technical level.

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Alsup laid out good reasons why a declaration header is not copyrightable.  Not sure why some court overruled it, but he got it right.

2x, you acknowledged that "api" doesn't have a legal definition.  You should stop using it and describe things with defined terms and I think you will find clarity on the issue.

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Just now, bernorange said:

Alsup laid out good reasons why a declaration header is not copyrightable.  Not sure why some court overruled it, but he got it right.

2x, you acknowledged that "api" doesn't have a legal definition.  You should stop using it and describe things with defined terms and I think you will find clarity on the issue.

I'm just using it as a shorthand.  For a while I was saying API/description/schema.  That's what I mean.

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19 minutes ago, Captainant said:

So effectively: nobody can ever write an interface or compatibility layer for any software ever without the platform holder's express consent and license?

Not at all.

What they maybe can't do is copy someone else's API/description for use in interfacing their own software with others.  When they have their own software that they wrote, they can achieve the functionality without copying the other party's API/schema/description.  They can make it damn similar if they want, but they can't wholesale copy it.  Maybe.

You keep wanting to generalize the facts of this case, while they aren't really susceptible to generalization, and if you do generalize them, they don't come out the way you want to generalize.

Lets say I have written a chunk of software.  It's not related to any other existing software except in the broadest sense (it's a database, or a spreadsheet, or a word processor, say).  But, for no particular reason other than my own laziness and maybe a desire to use something familiar to me and others, I implement and publish an API that is an exact copy of the API for Access, Excel, or Word. 

Should I avoid copyright liability simply because what I copied was "an API" apart from any other facts or what the API constitutes or how much of it I copied?  N.B. API is shorthand for an API description or schema, and Access, Excel, and Word are meaningless examples of known software, also shorthand.

 

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1 minute ago, TwiceHorn said:

What they maybe can't do is copy someone else's API/description for use in interfacing their own software with others.  When they have their own software that they wrote, they can achieve the functionality without copying the other party's API/schema/description.  They can make it damn similar if they want, but they can't wholesale copy it.  Maybe.

So in this case - Google would not have been able to achieve the functionality without copying the other party's API/schema/definition (not description). Their goal was to build a runtime environment that can natively interpret and run already-existing Java code. Meaning, the code should not need modification to work in their runtime. 

There is literally no way to accomplish that without declaring the same functional bindings as the language you are writing compatibility for. The API/schema/definition is simply a mapping for inputs and variables into the actual execution, and how to access any stored data from a Class definition - which is at its point of writing a creative endeavor, but it also becomes a core and functional component to using that functionality.

Judge Alsup rightly calls out - this would probably be better suited to a patent claim and protection therein, but that's not the case at hand. And there is no technical and positive-for-society context in which Oracle should have copyright protection over the basic definition of an API or function.

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4 minutes ago, Captainant said:

So in this case - Google would not have been able to achieve the functionality without copying the other party's API/schema/definition (not description). Their goal was to build a runtime environment that can natively interpret and run already-existing Java code. Meaning, the code should not need modification to work in their runtime. 

There is literally no way to accomplish that without declaring the same functional bindings as the language you are writing compatibility for. The API/schema/definition is simply a mapping for inputs and variables into the actual execution, and how to access any stored data from a Class definition - which is at its point of writing a creative endeavor, but it also becomes a core and functional component to using that functionality.

Judge Alsup rightly calls out - this would probably be better suited to a patent claim and protection therein, but that's not the case at hand. And there is no technical and positive-for-society context in which

I get that.

Quote

Oracle should have copyright protection over the basic definition of an API or function.

But Oracle is arguing for no such general rule.  They're just saying "we win"  in this particular case.

As I keep saying, in 99/100 or maybe 100/100 cases, Oracle is going to lose a copyright infringement case over the use of Java API for interfacing Java with other software.

It is Google that is arguing for the general rule.

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33 minutes ago, Captainant said:

Their goal was to build a runtime environment that can natively interpret and run already-existing Java code

See if you can get with me on this.

In the normal case of the use or appropriation of the Java API, it is going to be so that Java can be used with other software.  That benefits the owner of Java because it increases its use or adoption.  Probably a benefit to society, as well, because it broadly increases the utility of software.

Change it to the facts of this case.  The Java API is being used to create compatibility with software that ISN'T JAVA.  It's similar to Java, but it isn't and the benefits of its use don't accrue to the owner of Java.

Isn't that just a little bit appropriative of Java?  In a sense using Java without using it?  Is it clever?  Sure.  Is it handy and utilitarian?  Yeah.  Is it a leeeetle bit thefty?

Also, the cited justification for copying was:

“Google believed Java application programmers would want to find the same 37 sets of functionalities in the new Android system callable by the same names as used in Java.” Id. To achieve this result, Google copied the declaring source code from the 37 Java API packages verbatim, inserting that code into parts of its Android software.

Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1350-51 (Fed. Cir. 2014). Probably a minor distinction from "natively interpret and run already-existing Java code," but a distinction nonetheless.  It is clear that Dalvik VM isn't 100% compatible with Java, whether and to what extent it can use "already existing Java code" is probably beyond the scope of this discussion.

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Just now, TwiceHorn said:

...Isn't that just a little bit appropriative of Java?  ...

It's appropriative of Java's design, which should be protected by patent if anything and not copyright.  The actual text that was copied was a declaration header which is functional and not copyrightable as Judge Alsup explained.

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19 minutes ago, bernorange said:

It's appropriative of Java's design, which should be protected by patent if anything and not copyright.  The actual text that was copied was a declaration header which is functional and not copyrightable as Judge Alsup explained.

We can go around and around on this.  

I don't disagree with you that a single declaration header is probably not copyrightable.  But then there's the syntax, structure, and organization.  And then you multiply that by 37 and you have quite a bit of material that was copied that goes beyond the 50-character declaration statements.

Here's where I think it went wrong for Google and Judge Alsup.  Rather than try to say that the API was by definition uncopyrightable, he should have found that due to its nature, it's copying was not infringement.

Here is what Judge Alsup found:

the court explained that: (1) Google copied the files in their entirety; (2) the trial testimony revealed that the use of those files was “significant”; and (3) no reasonable jury could find the copying de minimis. Order Granting JMOL on Decompiled Files, 2012 U.S. Dist. LEXIS 66417, at *6.

On May 31, 2012, the district court issued the primary decision at issue in this appeal, finding that the replicated elements of the Java API packages—including the declarations and their structure, sequence, and organization—were not copyrightable.

Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1352 (Fed. Cir. 2014).

He had the choice of saying that the amount and nature of the copying was not infringement because of the nature of the material copied.  It was not "de minimis" (too small to count), but rather was copying of material of such narrow copyrightability that even the relatively large amount copied did not constitute infringement.

I would not disagree with that, and I don't think the Federal Circuit would have reversed him.

But he didn't.  He went for the more unconditional "not copyrightable."  And he fucked himself and Google on appeal.

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Just now, TwiceHorn said:

...

I don't disagree with you that a single declaration header is probably not copyrightable.  But then there's the syntax, structure, and organization.  ...

Syntax and  structure are the functional purpose of a declaration header.  Organization is superfluous/immaterial.

Just now, TwiceHorn said:

...

Here is what Judge Alsup found:

...

On May 31, 2012, the district court issued the primary decision at issue in this appeal, finding that the replicated elements of the Java API packages—including the declarations and their structure, sequence, and organization—were not copyrightable.

...

Yeah.  As I said, he got it right.  The replicated elements were the declaration headers. 

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20 minutes ago, TwiceHorn said:

We can go around and around on this.  

I don't disagree with you that a single declaration header is probably not copyrightable.  But then there's the syntax, structure, and organization.  And then you multiply that by 37 and you have quite a bit of material that was copied that goes beyond the 50-character declaration statements.

Here's where I think it went wrong for Google and Judge Alsup.  Rather than try to say that the API was by definition uncopyrightable, he should have found that due to its nature, it's copying was not infringement.

Here is what Judge Alsup found:

the court explained that: (1) Google copied the files in their entirety; (2) the trial testimony revealed that the use of those files was “significant”; and (3) no reasonable jury could find the copying de minimis. Order Granting JMOL on Decompiled Files, 2012 U.S. Dist. LEXIS 66417, at *6.

On May 31, 2012, the district court issued the primary decision at issue in this appeal, finding that the replicated elements of the Java API packages—including the declarations and their structure, sequence, and organization—were not copyrightable.

Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1352 (Fed. Cir. 2014).

He had the choice of saying that the amount and nature of the copying was not infringement because of the nature of the material copied.  It was not "de minimis" (too small to count), but rather was copying of material of such narrow copyrightability that even the relatively large amount copied did not constitute infringement.

I would not disagree with that, and I don't think the Federal Circuit would have reversed him.

But he didn't.  He went for the more unconditional "not copyrightable."  And he fucked himself and Google on appeal.

You should actually read the entire opinion, including the technical background portion titled "THE JAVA LANGUAGE AND ITS API — IMPORTANT DETAILS"

He got "not copyrightable" in the context of this case absolutely correctly. Relevant excerpts from the opinion below:

 

Even so, the second major copyright question is whether Google was and remains free to group its methods in the same way as in Java, that is, to organize its Android methods under the same class and package scheme as in Java. For example, the Math classes in both systems have a method that returns a cosine, another method that returns the larger of two numbers, and yet another method that returns logarithmic values, and so on. As Oracle notes, the rules of Java did not insist that these methods be grouped together in any particular class. Google could have placed its trigonometric function (or any other function) under a class other than Math class. Oracle is entirely correct that the rules of the Java language did not require that the same grouping pattern (or even that they be grouped at all, for each method could have been placed in a stand-alone class).9

Oracle's best argument, therefore, is that while no single name is copyrightable, Java's overall system of organized names — covering 37 packages, with over six hundred classes, with over six thousand methods — is a "taxonomy" and, therefore, copyrightable under American Dental Association v. Delta Dental Plans Association, 126 F.3d 977 (7th Cir.1997). There was nothing in the rules of the Java language that required that Google replicate the same groupings even if Google was free to replicate the same functionality.10

The main answer to this argument is that while the overall scheme of file name organization resembles a taxonomy, it is also a command structure for a system or method of operation of the application programming interface. The commands are (and must be) in the form

java.package.Class.method()

and each calls into action a pre-assigned function.11

To repeat, Section 102(b) states that "in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation ... regardless of the form...." That a system or method of operation has thousands of commands arranged in a creative taxonomy does not change its character as a method of operation. Yes, it is creative. Yes, it is original. Yes, it resembles a taxonomy. 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.

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1 minute ago, Captainant said:

You should actually read the entire opinion, including the technical background portion titled "THE JAVA LANGUAGE AND ITS API — IMPORTANT DETAILS"

He got "not copyrightable" in the context of this case absolutely correctly. Relevant excerpts from the opinion below:

 

Even so, the second major copyright question is whether Google was and remains free to group its methods in the same way as in Java, that is, to organize its Android methods under the same class and package scheme as in Java. For example, the Math classes in both systems have a method that returns a cosine, another method that returns the larger of two numbers, and yet another method that returns logarithmic values, and so on. As Oracle notes, the rules of Java did not insist that these methods be grouped together in any particular class. Google could have placed its trigonometric function (or any other function) under a class other than Math class. Oracle is entirely correct that the rules of the Java language did not require that the same grouping pattern (or even that they be grouped at all, for each method could have been placed in a stand-alone class).9

Oracle's best argument, therefore, is that while no single name is copyrightable, Java's overall system of organized names — covering 37 packages, with over six hundred classes, with over six thousand methods — is a "taxonomy" and, therefore, copyrightable under American Dental Association v. Delta Dental Plans Association, 126 F.3d 977 (7th Cir.1997). There was nothing in the rules of the Java language that required that Google replicate the same groupings even if Google was free to replicate the same functionality.10

The main answer to this argument is that while the overall scheme of file name organization resembles a taxonomy, it is also a command structure for a system or method of operation of the application programming interface. The commands are (and must be) in the form

java.package.Class.method()

and each calls into action a pre-assigned function.11

To repeat, Section 102(b) states that "in no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation ... regardless of the form...." That a system or method of operation has thousands of commands arranged in a creative taxonomy does not change its character as a method of operation. Yes, it is creative. Yes, it is original. Yes, it resembles a taxonomy. 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.

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.

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5 minutes ago, TwiceHorn said:

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.

This is technical gobbledy-gook. You're a lawyer omitting words you don't think that matter and are objective fact from his opinion.

What is your actual technical background on these sorts of issues? I've asked you several times over the last few days. Do you actually understand any of this on a technical or academic level or have you actually ever written software and an API? Or are you just coming at it from a 100% IP lawyer view?

Edited by Captainant
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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.

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9 minutes ago, Captainant said:

This is technical gobbledy-gook. You're a lawyer omitting words you don't think that matter and are objective fact from his opinion.

What is your actual technical background on these sorts of issues? I've asked you several times over the last few days. Do you actually understand any of this on a technical or academic level or have you actually ever written software and an API? Or are you just coming at it from a 100% IP lawyer view?

lol he really won't answer.

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19 minutes ago, Captainant said:

This is technical gobbledy-gook. You're a lawyer omitting words you don't think that matter and are objective fact from his opinion.

What is your actual technical background on these sorts of issues? I've asked you several times over the last few days. Do you actually understand any of this on a technical or academic level or have you actually ever written software and an API? Or are you just coming at it from a 100% IP lawyer view?

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.

Edited by TwiceHorn
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5 minutes ago, TwiceHorn said:

You're in the legal arena right now where words matter.  They create precedents that have meaning to other lawyers if not to programmers.

I'm not sure how a narrow ruling on the concept of API's would have more impact on lawyer than on programmers lol. Yall will find something else to generate billable hours off of if not this. Allowing Oracle to assert an intrinsic copyright over the idea of the declarative structure to pass information is a ridiculously over-broad and dangerous precedent. It would fundamentally break the modern software world.

EDIT: and I appreciate you answering my question - IMHO you do not have modern software development experience, and your lack of knowledge (or reading the recommended technical background section, which it seems like you still haven't) is why you don't get it.

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3 minutes ago, Captainant said:

I'm not sure how a narrow ruling on the concept of API's would have more impact on lawyer than on programmers lol. Yall will find something else to generate billable hours off of if not this. Allowing Oracle to assert an intrinsic copyright over the idea of the declarative structure to pass information is a ridiculously over-broad and dangerous precedent. It would fundamentally break the modern software world.

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.

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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.

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49 minutes ago, Captainant said:

I'm not sure how a narrow ruling on the concept of API's would have more impact on lawyer than on programmers lol. Yall will find something else to generate billable hours off of if not this. Allowing Oracle to assert an intrinsic copyright over the idea of the declarative structure to pass information is a ridiculously over-broad and dangerous precedent. It would fundamentally break the modern software world.

EDIT: and I appreciate you answering my question - IMHO you do not have modern software development experience, and your lack of knowledge (or reading the recommended technical background section, which it seems like you still haven't) is why you don't get it.

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?

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20 minutes ago, TwiceHorn said:

...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. ...

My experience with the USPTO...

 

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30 minutes ago, TwiceHorn said:

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?

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.

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9 hours ago, High Plains Drifter said:

 

This thread: Nerds and Lawyers.

Can somebody just tell a simpleton like me why I should care who wins?

If google wins copyrights almost certainly will not apply to API's, not just for programming languages, but for any software. What does that mean for you as a general consumer? It will cost less for you as the consumer, because anyone can open source a complete compatibility to any API that exists proprietary or not because it can't be copyrighted only patented.

if Oracle wins API's will be copyrightable as an "idea" and the general way to interact with an application will be owned by the initial contributor regardless of license (how you pay for that access). What does that mean for you as a general consumer? It will cost more for you as the consumer, because to create compatibility on something like a brand new phone operating system intended for use on billions of devices someone is definitely going to want to get paid if you copy their API. 

In reality if Oracle wins, the world doesn't change, and google has to pay oracle a bunch of money for ripping their shit off, which I'm pretty OK with especially because they fully open sourced the entire god damned thing anyway later on.

It is becoming exceedingly rare that software gets MORE OPEN over time, the inverse is true. Open source licensing with "copyleft" licensing which basically says hey you have to acknowledge we did it so people know how cool we are, but you can do whatever the fuck you want with it at no cost forever and ever including copying it verbatim. At the time that Google essentially "forked" the code, the license was not full retard copyleft on Java, it was source available and open source for some usecases and others it explicitly prohibited with it's license to protect it's intellectual property. Google said LOL FUCK YOUR LICENSE and said we'll just write our own version of your shit that is source available and rip off the exact syntax and way to interact with it but it will be it's own thing and creatively you get no credit at all and we now determine the license, take that SUCKERS.

Those companies that release that software, sometimes create so much value that they lock features/functionality behind an actual proprietary license that is mostly the open source code, with some other bits that aren't freely available that make it special. It would actually be a significantly more interesting case has the "copyleft" mentality of Oracle itself not shifted to be more open and actually to be more closed, but the impacts are all the same.

Licensed software which is source available and/or has a well documented public (non licensed) API will now be subject to copyright if oracle wins and not subject to copyright if google wins. It's further protection than licensing can offer since the license is for things that YOU built, not that SOMEONE ELSE has built. Copyright is protection regardless of who builds it, which means you need permission and likely to pay a fee if you want to create a directly compatible thing for something that isn't free and open source with a copyleft license.

Essentially: Patent trumps all from an exclusive license to use or solve a problem a certain way > License governs use of the codebase and can overrule a copyright, but explicitly making it copyleft > Copyright governs the use of the interaction with the software

So you can own a patent, you need to license that software, if you choose copyleft poof everyone can just use your patent forever.
You can write unpatented software, license that software, if you choose copyleft poof everyone can just use your software forever.
you can write unpatented software, that has a proprietary extremely copyright license which requires people pay you to to use your software for a finite amount of time.

The 3rd case is the only one under fire here and it's weird because the implications of what Oracle is fighting for are correct, but they eventually chose a copyleft license that enabled everyone to just copy and use the software forever. Had Google built the thing 3 years later this is a non-issue governed by license and what the license entitles anyone including corporate entities to.

Lets say they never did that - holy fuck, now GOOGLE can just rip off your proprietary shit and give it away for free and not even give you a little bit of credit for coming up with the idea? HOW FUCKED UP IS THAT?

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a few real life example of both things:

Apache Cassandra (copyleft FOSS) and ScyllaDB (also copyleft because inheritance of cassandra license)

People loved Cassandra, how it worked, and how you interacted with it and it became a widely used piece of software. ScyllaDB team said LOL it's written in Java and running a database in a JVM is stupid as fuck from a performance perspective. We are going to rewrite the entire thing in C++ and destroy performance while maintaining 100% compatibility with the API. They did that.

If Oracle or Google wins this case, nothing happens and everything is all the same. 

MS-SQL or ORACLE database have specific API's to interact with a PROPRIETARY licensed database. People love the way they interact with the database and really love the performance they get from the proprietary licensed software, but they don't like the price and think it's stifling. Postgres and MariaDB think that's bullshit and no one should have to pay for their database so they create a "compatibility" layer that allows you to use things explicitly written for those proprietary API's to do it a totally different way. (PL/SQL and T-SQL) so SQL the base API is copyleft and governed by an external body to both, which is the main way you interact with the database, but PL/SQL and T-SQL are licensed proprietary API's that enable additional functionality. It is not currently legal to just say okay we will make PL/SQL or T-SQL 100% compatible with this new database we wrote, so PostgreSQL wrote a derived work called PL/pgSQL which is different entirely from an implementation perspective, it's unique and it's not 100% compatible it does get close and sometimes happens to be compatible though. 

If Google wins this case, anyone can just rip off PL/SQL or T-SQL with a 100% compatibility and there is now legal precedent that says that's ok. That will lead to even stronger protections to how you can interact with the software beyond just licensing.

If Oracle wins this case, it's exactly the same as it was generally understood in the past.

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9 minutes ago, immamac said:

If google wins copyrights almost certainly will not apply to API's, not just for programming languages, but for any software. What does that mean for you as a general consumer? It will cost less for you as the consumer, because anyone can open source a complete compatibility to any API that exists proprietary or not because it can't be copyrighted only patented.

if Oracle wins API's will be copyrightable as an "idea" and the general way to interact with an application will be owned by the initial contributor regardless of license (how you pay for that access). What does that mean for you as a general consumer? It will cost more for you as the consumer, because to create compatibility on something like a brand new phone operating system intended for use on billions of devices someone is definitely going to want to get paid if you copy their API. 

In reality if Oracle wins, the world doesn't change, and google has to pay oracle a bunch of money for ripping their shit off, which I'm pretty OK with especially because they fully open sourced the entire god damned thing anyway later on.

It is becoming exceedingly rare that software gets MORE OPEN over time, the inverse is true. Open source licensing with "copyleft" licensing which basically says hey you have to acknowledge we did it so people know how cool we are, but you can do whatever the fuck you want with it at no cost forever and ever including copying it verbatim. At the time that Google essentially "forked" the code, the license was not full retard copyleft on Java, it was source available and open source for some usecases and others it explicitly prohibited with it's license to protect it's intellectual property. Google said LOL FUCK YOUR LICENSE and said we'll just write our own version of your shit that is source available and rip off the exact syntax and way to interact with it but it will be it's own thing and creatively you get no credit at all and we now determine the license, take that SUCKERS.

Those companies that release that software, sometimes create so much value that they lock features/functionality behind an actual proprietary license that is mostly the open source code, with some other bits that aren't freely available that make it special. It would actually be a significantly more interesting case has the "copyleft" mentality of Oracle itself not shifted to be more open and actually to be more closed, but the impacts are all the same.

Licensed software which is source available and/or has a well documented public (non licensed) API will now be subject to copyright if oracle wins and not subject to copyright if google wins. It's further protection than licensing can offer since the license is for things that YOU built, not that SOMEONE ELSE has built. Copyright is protection regardless of who builds it, which means you need permission and likely to pay a fee if you want to create a directly compatible thing for something that isn't free and open source with a copyleft license.

Essentially: Patent trumps all from an exclusive license to use or solve a problem a certain way > License governs use of the codebase and can overrule a copyright, but explicitly making it copyleft > Copyright governs the use of the interaction with the software

So you can own a patent, you need to license that software, if you choose copyleft poof everyone can just use your patent forever.
You can write unpatented software, license that software, if you choose copyleft poof everyone can just use your software forever.
you can write unpatented software, that has a proprietary extremely copyright license which requires people pay you to to use your software for a finite amount of time.

The 3rd case is the only one under fire here and it's weird because the implications of what Oracle is fighting for are correct, but they eventually chose a copyleft license that enabled everyone to just copy and use the software forever. Had Google built the thing 3 years later this is a non-issue governed by license and what the license entitles anyone including corporate entities to.

Lets say they never did that - holy fuck, now GOOGLE can just rip off your proprietary shit and give it away for free and not even give you a little bit of credit for coming up with the idea? HOW FUCKED UP IS THAT?

Some interesting points here.

Software that is proprietary (no one has the source) is probably best protected by trade secret:  anyone who licenses it is bound to keep it secret.  Copyright protection has already faded to the point that it mostly only protects against "bootleggers" (and that's without regard to how this case comes out).  Patent protection is pretty similar.

Again, though, it is my observation that in licenses outside the patent context, to include software, no one seriously questions whether the software actually belongs to the proprietor or how or what IP regime protects it unless it's a FUBAR deal like SCO trying to assert ownership over Linux 10 years after the fact.

Also worth noting that even if Oracle wins, the precedent of this case is extraordinarily narrow, even as pertains to the Java "API," as imma notes, because it's all open source now.

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13 minutes ago, immamac said:

 

If Oracle wins this case, it's exactly the same as it was generally understood in the past.

Exactly, at least from the legal perspective. 

I won't speak for what the dev community thinks/understands because sometimes what the dev community thinks about a legal issue is divorced from reality, see, e.g. slashdot.org.

Edited by TwiceHorn
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6 minutes ago, TwiceHorn said:

Some interesting points here.

Software that is proprietary (no one has the source) is probably best protected by trade secret:  anyone who licenses it is bound to keep it secret.  Copyright protection has already faded to the point that it mostly only protects against "bootleggers" (and that's without regard to how this case comes out).  Patent protection is pretty similar.

Again, though, it is my observation that in licenses outside the patent context, to include software, no one seriously questions whether the software actually belongs to the proprietor or how or what IP regime protects it unless it's a FUBAR deal like SCO trying to assert ownership over Linux 10 years after the fact.

Also worth noting that even if Oracle wins, the precedent of this case is extraordinarily narrow, even as pertains to the Java "API," as imma notes, because it's all open source now.

but get this - what if Linux decided that the new kernel as of 5.9 is not proprietary licensed code instead of copyleft code. Can you fork 5.8 and create a 100% compatible API and functionality as upstream/mainline linux now?

If google wins the answer will always be "yes" regardless

If oracle wins the answer will always be "no" regardless

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Just now, immamac said:

but get this - what if Linux decided that the new kernel as of 5.9 is not proprietary licensed code instead of copyleft code. Can you fork 5.8 and create a 100% compatible API and functionality as upstream/mainline linux now?

If google wins the answer will always be "yes" regardless

If oracle wins the answer will always be "no" regardless

Same with MongoDB, Redis, CockroachDB... You get the point, linux wouldn't do that because of what the project is, but all these actual corporate funded and started projects definitely do move more towards copyright instead of copyleft. 

Going copyleft is akin to going full retard, you are giving away all of your IP and it has value in your expertise and ability to "fix" it because you should have more knowledge than anyone else about it since you wrote it and you know how to fix it and you control where it's going. 

What happens when you want to put that back in a box and call it proprietary? That should and is a right of any company that produces software and IP. Right now Google says lolol fuck your IP and I just don't like that even though I am a big fan of the copyleft movement I think it's up to the people writing the software whether or not it's copyleft or copyright.

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2 minutes ago, immamac said:

but get this - what if Linux decided that the new kernel as of 5.9 is not proprietary licensed code instead of copyleft code. Can you fork 5.8 and create a 100% compatible API and functionality as upstream/mainline linux now?

If google wins the answer will always be "yes" regardless

If oracle wins the answer will always be "no" regardless

Fucking hell.

This gets into definitional problems of an API and google's bright line rule.

Also, the last statement is utterly wrong.

In this particular example, the ONLY thing even theoretically copryightable about Linux kernel 5.9 would be the differences between it and kernel 5.8 and all the prior kernels that are public domain.  

And most of those differences are going to be highly functional, which is already not properly the subject of copyright.  We don't need Oracle v. Google to tell us that.

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7 minutes ago, TwiceHorn said:

I won't speak for what the dev community thinks/understands because sometimes what the dev community thinks about a legal issue is divorced from reality.

Funnily enough, the same can be said of lawyers and judges who don't understand what they're arguing over lol. 

An overly broad ruling (from Roberts?? Never!) will irreversibly damage the creative, collaborative, and derivative nature of software development. It may not change anything, but it gives a green light AND a mechanism for copyright and patent trolls to bleed software companies dry. If you don't think Larry Ellison and his army of lawyers known as "Oracle" aren't going to do just that, then I have a bridge to sell you. 

I agree that Google did not do this the right way, but neither did Oracle. And neither are really all that good of actors in the space regarding IP. 

Is there a "cut the baby in half" option I wonder?

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34 minutes ago, immamac said:

It is becoming exceedingly rare that software gets MORE OPEN over time, the inverse is true.

This is kind of an interesting statement.  I think you have an unduly narrow frame of reference here.

Software didn't start becoming intentionally "open" until the late 90s, or later. It's still a relatively young industry and I think that speculating about ownership trends (open v. closed, etc) is premature.  You're probably going to see some gyrations akin to what happened in the early aughts every couple of decades or so.

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19 minutes ago, Captainant said:

Funnily enough, the same can be said of lawyers and judges who don't understand what they're arguing over lol. 

An overly broad ruling (from Roberts?? Never!) will irreversibly damage the creative, collaborative, and derivative nature of software development. It may not change anything, but it gives a green light AND a mechanism for copyright and patent trolls to bleed software companies dry. If you don't think Larry Ellison and his army of lawyers known as "Oracle" aren't going to do just that, then I have a bridge to sell you. 

I agree that Google did not do this the right way, but neither did Oracle. And neither are really all that good of actors in the space regarding IP. 

Is there a "cut the baby in half" option I wonder?

Having watched the Supreme Court in the IP space for 30 years, I can say with some confidence that it doesn't like "bright line rules" as the one Google argues for on the "programming interface" copyrightablity issue.  

There's no danger of an "overly broad" rule here unless Google wins.  If Oracle wins, it's the status quo.

I think Google also loses on the fair use thing because fair use is a First Amendment limitation on copyright protection and software just flat doesn't implicate the First Amendment.

I suspect, however, that the Court will make some rules or spew some dicta that makes it still more difficult to assert copyrights in software generally.

This decision has no effect on patent trolls.  It's not a patent decision.  There is actually such thing as a copyright troll, though, but they don't operate in the software area.

 

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18 minutes ago, TwiceHorn said:

This is kind of an interesting statement.  I think you have an unduly narrow frame of reference here.

Software didn't start becoming intentionally "open" until the late 90s, or later. It's still a relatively young industry and I think that speculating about ownership trends (open v. closed, etc) is premature.  You're probably going to see some gyrations akin to what happened in the early aughts every couple of decades or so.

I don't think so. I think you are out of depth because you don't realize how hardened and mature it is and how viciously defended it already is with global trillion dollar companies being entrenched on it. This isn't some hippie movement like the 90s and early 2000s this is 2020. 

If you think millenials and xillenials and gen z and the subsequent upcoming generations of talent are going to be like "LOL YEAH I AM GONNA LEARN ABOUT THIS PROPRIETARY THING" instead of using an open standard is ludicrous. The point is API's in general are moving entirely away from the software that they were seemingly coupled to and moving more towards things like: https://www.odata.org/ https://blog.ansi.org/ https://sodafoundation.io/

Look at the logos here:

https://opensource.org/

https://landscape.cncf.io/

https://opensource.microsoft.com/

https://opensource.apple.com/

People are going OPEN by default and proprietary by necessity to monetize some aspects.

https://www.redhat.com/en/about/press-releases/ibm-closes-landmark-acquisition-red-hat-34-billion-defines-open-hybrid-cloud-future

https://news.microsoft.com/announcement/microsoft-acquires-github/

https://www.wired.com/story/atandt-joins-the-open-source-artificial-intelligence-arms-race/

Everything that YOU personally do, including browsing this website is 100% dependent and entrenched in the notion of copyleft/open source.
Every browser you use on the internet is 100% FOSS, the database for the websites you go to is almost certainly powered by OSS, the tools and building blocks to build that software that delivers it is most certainly heavily coupled with OSS.

Don't let the world pass you by while you are arguing that something isn't mature and ubiquitous with an entire world that it's built on it's back. Without copyleft we wouldn't have supercomputers in our pockets, we wouldn't have high bandwidth internet, the economic productivity and we most certainly wouldn't have the level of connectivity and information available.

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6 minutes ago, immamac said:

I don't think so. I think you are out of depth because you don't realize how hardened and mature it is and how viciously defended it already is with global trillion dollar companies being entrenched on it. This isn't some hippie movement like the 90s and early 2000s this is 2020. 

If you think millenials and xillenials and gen z and the subsequent upcoming generations of talent are going to be like "LOL YEAH I AM GONNA LEARN ABOUT THIS PROPRIETARY THING" instead of using an open standard is ludicrous. The point is API's in general are moving entirely away from the software that they were seemingly coupled to and moving more towards things like: https://www.odata.org/ https://blog.ansi.org/ https://sodafoundation.io/

Look at the logos here:

https://opensource.org/

https://landscape.cncf.io/

https://opensource.microsoft.com/

https://opensource.apple.com/

People are going OPEN by default and proprietary by necessity to monetize some aspects.

https://www.redhat.com/en/about/press-releases/ibm-closes-landmark-acquisition-red-hat-34-billion-defines-open-hybrid-cloud-future

https://news.microsoft.com/announcement/microsoft-acquires-github/

https://www.wired.com/story/atandt-joins-the-open-source-artificial-intelligence-arms-race/

Everything that YOU personally do, including browsing this website is 100% dependent and entrenched in the notion of copyleft/open source.
Every browser you use on the internet is 100% FOSS, the database for the websites you go to is almost certainly powered by OSS, the tools and building blocks to build that software that delivers it is most certainly heavily coupled with OSS.

Don't let the world pass you by while you are arguing that something isn't mature and ubiquitous with an entire world that it's built on it's back. Without copyleft we wouldn't have supercomputers in our pockets, we wouldn't have high bandwidth internet, the economic productivity and we most certainly wouldn't have the level of connectivity and information available.

You kind of proved my point.

The industry is trying to decide on what IP model and revenue model fits best.  There is probably never a final or permanent decision on that.

The massive adoption of open source licensing by even commercial entities was fairly astonishing.  Now people are pulling back from it.  Some will stay pulled back, others will probably revert to the open model.

Edited by TwiceHorn
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On 9/28/2020 at 10:33 AM, Captainant said:

So effectively: nobody can ever write an interface or compatibility layer for any software ever without the platform holder's express consent and license?

That's not the issue at play.  Re-implementing JavaAPI for compatibility with Java is fair use.

Edited by JBJ
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Just now, JBJ said:

That's not the issue at play.  Using JavaAPI for compatility with Java is fair use.

Appeals court found the opposite actually, on the narrow (and IMO, specious) point that Google copied function and class declarations, which as we have covered at length are a purely functional and non-creative interface.

"We do not conclude that a fair use defense could never be sustained in an action involving the copying of computer code."

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3 minutes ago, JBJ said:

That's not the issue at play.  Re-implementing JavaAPI for compatibility with Java is fair use.

Fair use has a highly defined meaning that is far beyond the literal meaning of the words "fair"" and "use," which simply imply that it isn't an infringement because it's "fair."

That is a common misconception about the fair use doctrine.

While that is an issue presented in the case, it is likely a loser because of the highly defined nature of fair use.

 

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5 minutes ago, Captainant said:

Appeals court found the opposite actually, on the narrow (and IMO, specious) point that Google copied function and class declarations, which as we have covered at length are a purely functional and non-creative interface.

"We do not conclude that a fair use defense could never be sustained in an action involving the copying of computer code."

A good example of the judicial adoption of the "never say never" principle.

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3 minutes ago, TwiceHorn said:

Fair use has a highly defined meaning that is far beyond the literal meaning of the words "fair"" and "use," which simply imply that it isn't an infringement because it's "fair."

That is a common misconception about the fair use doctrine.

While that is an issue presented in the case, it is likely a loser because of the highly defined nature of fair use.

I'm just trying to use correct terms.  The question before the court is currently one of fair use, but if any use of API is fair use it's the same as being not-copywritable to begin with.

1 minute ago, TwiceHorn said:

A good example of the judicial adoption of the "never say never" principle.

"for compatibility with Java."  That's the hangup here.  Google didn't just use it for Java, they also used it to create a Java-like exclusively Android interface. They could have developed a distinct API for this, but chose not to.

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  • 2 weeks later...
On 9/29/2020 at 10:45 AM, JBJ said:

I'm just trying to use correct terms.  The question before the court is currently one of fair use, but if any use of API is fair use it's the same as being not-copywritable to begin with.

"for compatibility with Java."  That's the hangup here.  Google didn't just use it for Java, they also used it to create a Java-like exclusively Android interface. They could have developed a distinct API for this, but chose not to.

I think your second point is a very valid one that takes this out of the context of "normal" API copying, which usually should not be infringement as a result of the merger of the idea and the expression, or the function and the expression.

On the first point, there are two questions presented:  Whether a programming interface is copyrightable at all and second whether copying an API can constitute fair use (meaning the complex and highly fact-specific First Amendment limitation on copyright infringement).

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