White House Sides with Oracle, Tells Supreme Court APIs Are Copyrightable
arstechnica.comIt's not obvious from the LWN article, but the reason it says "White House" is that lawyers from the DoJ have filed an Amicus Curiae ("Friend of the Court") brief informing them of their stance on the topic. [1] [2]
[1] - http://arstechnica.com/tech-policy/2015/05/white-house-sides...
[2] - http://cdn.arstechnica.net/wp-content/uploads/2015/05/google...
Is the term "White House" often used to refer to anything within the executive branch? I have always assumed it meant the office of the President and perhaps his cabinet...
It's an amicus brief filed by DoJ with the Solicitor General's name of it - a man directly appointed by Obama in 2011. In more ways than even other DoJ briefs [1], there is a straight line from this to Obama, and surely if he wished to intervene to alter or prevent the submission of this brief he would have been able to.
To answer your question yes, in general, actions taken with direct authority or direction from high-level appointees of the President are described by the media as "White House" actions, with good reason.
[1] http://www.justice.gov/crt/about/app/briefs/fisher_appellee_...
It makes sense really, anyone that the president appoints is not elected so can't be judged directly by the public through voting, the only fair thing to do is hold his publicly elected appointer responsible for actions.
I've been exposed to or worked on a few style guides on this topic. I think pretty much universally, in US media, "White House" means elements of the executive branch outside the cabinet-level departments. So it includes the Executive Office of the President, the OMB, ONDCP, DoJ, etc.
It does not include law enforcement or intelligence agencies, nor cabinet-level departments. So "White House" does not mean FBI, DEA, Department of the Interior, etc. However, the term "Administration" or "<President's last name> Administration" does include these entities.
> I've been exposed to or worked on a few style guides on this topic. I think pretty much universally, in US media, "White House" means elements of the executive branch outside the cabinet-level departments.
That would mean most non-cabinet and "independent" agencies -- all of which are part of the executive branch and not part of a cabinet-level department -- would be part of the "White House", which assuredly is not the common use.
Usually, it means specifically the Executive Office of the President. (Rarely, it might even more specifically mean the White House Office, which is within the Executive Office of the President and, like the Executive Office, also headed by the White House Chief of Staff.)
> So it includes the Executive Office of the President, the OMB, ONDCP, DoJ, etc.
OMB and ONDCP are part of the Executive Office of the President. [0]
DoJ (which, relevant to the thread, includes the Office of the Solicitor General) is a cabinet-level department (headed by the Attorney-General), and so even if your excessively-broad "outside the cabinet-level departments" rule was correct, would still be excluded.
[0] http://en.wikipedia.org/wiki/Executive_Office_of_the_Preside...
You gotta remember Obama hasn't written a line of code in his life and has someone literally tells him what his opinions and stances are on technology issues.
That's not true! He has pair programmed a line of Javascript, and even went as far as watching 3rd graders play with Scratch!
http://www.wired.com/2014/12/obama-becomes-first-president-w...
It's called metonymy.
See also synecdoche.
Exactly!
Yes; it's not uncommon.
DOJ people don't just wake up and submit opinions to the Supreme Court at the approval of some random middle manager.
> DOJ people don't just wake up and submit opinions to the Supreme Court at the approval of some random middle manager.
Well, no, the Solicitor General, under whose authority such things are done (and who is the person to whom the Supreme Court issues -- as it did in this case -- "invitations" [treated as commands] for input), is one of the highest-ranking officers at DoJ.
And still not part of the White House.
The Solicitor General is still appointed by the WH, and confirmed by the Senate. I would think that he/she, ostensibly speaking, would probably be in direct dialogue with the WH with respect to the executive's position on legal matters, especially considering that they so often end up on the Supreme Court anyway.
It's more customary to use the word "Administration" or "Obama Administration" instead.
> Is the term "White House" often used to refer to anything within the executive branch?
Only when people are being sloppy, either through ignorance, or, e.g, because its convenient for spin they'd look to put on something.
Less sloppily, referring to an entity rather than a building, it refers to either the White House Office within the Executive Office of the President, or the whole Executive Office of the President (both of which are headed by the White House Chief of Staff.)
http://en.m.wikipedia.org/wiki/Synecdoche
'Sloppy' seems the wrong word to use to me.
That something is synecdoche doesn't mean its not sloppy, and vice versa.
Perhaps its use has become cliche, but using a well-worn textbook example of a synecdoche isn't exactly sloppy and to describe it as such is ignorant.
That's really misleading, but I guess I shouldn't be surprised when the next election is rapidly approaching.
It's not misleading. It's quite literally their stated opinion: http://cdn.arstechnica.net/wp-content/uploads/2015/05/google...
This was to let the courts know how they felt on the matter, even though they aren't directly involved.
Exactly whose stated opinion? That is the problem. DoJ and "the White House" are not exactly the same thing.
That's why I linked the brief - Donald Verrilli Jr. is Solicitor General of the US, an Obama appointee.
Given the amount of control both the Obama and Bush administrations have exerted over the DOJ, I'm OK with this title.
I've always wondered if there is not a general conspiracy of lawyers to protect their "industry". They have all interests to keep the current patent system, as well as extending copyright protection to anything: it keeps the demand for lawyers high.
Of course you have the same view of software and/or system engineer, who build broken systems just to justify billing more maintenance :)
Judges are pretty far removed from the actual legal industry to give a shit.
But there are definitely lobbies that exist to further the legal industry. The trial lawyers lobby is HUGE in the democratic party. Probably the most influential because they have money but also direct connections. They were sorta behind killing the patent reform act from 2013 because it had "fee shifting.
The more appropriate charge is that lawyers overvalue the law and litigation as a whole and it creates a bias. But the recent courts have given away a lot of power that they didn't' have to. Courts uphold arbitration terms in contracts, SCOTUS made it harder to sue in a series of civil procedure cases, they give deference to administrative agencies.
I work in the patent industry, mostly on the defense side, and a lot of my coworkers really really hate patent trolls. They see first hand how shitty these trolls behave. I recognize their behavior is paying off my student loans, so I don't get so angry. I'm sort of shocked how personally they take it.
But professionally they attack patent troll ferociously. Many big firms wrote amicus briefs supporting crack downs on the trolls even though they'd lose a lot of money if it actually works.
Personally, I find it hard to blame lawyers on the whole for this.
A lawyers job is to represent their client as best as they possibly can (within the rules of the law). The best outcome for Oracle here is copyright is valid for APIs, it's then the lawyers job to try to get that outcome. It is illegal (i.e. disbarred) for a lawyer (in New Zealand at least) to refuse instruction without a good enough reason.
It should be judges/the law which stops these silly verdicts from occurring.
Many judges are former trial lawyers. I don't think there is some vast conspiracy, but many of these laws are in the interest of trial lawyers, so many judges probably have at least some subconscious bias towards interpreting laws in their direction.
No more a conspiracy than lions hunting a gazelle. It's just in their nature.
"declaring code and the structure, sequence, and organization of
the API packages are entitled to copyright protection."
Someone needs to explain to them that that would be like being able to copyright how files are organised in a drawer, how books are organised on shelves in a Library, how a book is indexed, how departments in a company are named, how streets are numbered, how campus room numbers relate to floors and buildings, roads, flights, cashier tickets, ...
[T]hat would be like being able to copyright ... how books are organised on shelves in a Library
Probably not the best example to give, since the Dewey Decimal System is actually a copyrighted product(http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?v1=11&ti=1,11...). Similar to how the AMA has copyrighted the ICD codes.
I do wonder if using identical function names, but different argument names, would be sufficient to escape infringement.
I'm sure that would be found to be a derivative work.
The entire thing is derived from this doctrine: http://en.wikipedia.org/wiki/Structure,_sequence_and_organiz...
So speaking of how books are organized on the shelves at many libraries... http://en.wikipedia.org/wiki/Dewey_Decimal_Classification
I think they did use that explanation at the Appeals Court, which was actually the one that didn't buy it and overturned Alsup's ruling:
https://www.techdirt.com/articles/20140509/10133727178/appea...
Mike's opinion today:
https://www.techdirt.com/articles/20150526/16550931121/obama...
There is a museum in Philadelphia (the Barnes Foundation), which houses a collection meticulously arranged by Albert Barnes over the course of his life. I think that arrangement is itself a work of art entitled to copyright protection.
What is that copyright protection supposed to look like?
There are clearly things that combine function and expression. Essentially all computer programs do this. But if the expressive part can be copyrighted and the functional part can't then the combined thing has to be separated into what can be copyrighted and what cannot.
The thing about APIs is that by their nature they're purely functional. There is no expressive component that can be extracted and changed without changing the function itself. Even the name is functional because that string of characters is what the compiler uses to match invocations of the function with its definition.
Try a mirror image analogy. First, a popular lock manufacturer encodes the mechanical specification for its lock cylinder as music, and it turns out to have a pleasing sound. When the sound hits the top 40 they can have all the music royalties, but that doesn't mean they can copyright the lock itself as an expression of the music.
Second, a popular lock manufacturer starts selling locks which will only open if the key blanks are encoded with a particular sequence of musical notes composed by a human artist, and asserts that such key blanks are copyrighted. It doesn't matter how expressive the music is when you play it on a piano, or whether it would be copyrightable if it was reproduced as sheet music rather than key blanks. If you specify it as an interface then it can't be copyrighted in that context because the functional interface demands that specific expression.
> Would this apply to REST APIs too?
I wouldn't think so. REST APIs are just called APIs, but they're really communication protocols. As those don't have a fixed description (i.e. you can describe the same protocol in different words) -- unlike APIs -- they are not copyrightable.
For good or bad, APIs aren't just a description of how to do something. They are fixed. If you write down how files should be organized in a drawer, then that specific text might be copyrightable; the method itself isn't. APIs (though not protocols) are both a description and a fixed text.
Perhaps I am missing your point, but aren't all APIs simply definitions that describe how to communicate to an underlying system?
An API, by itself (By definition of being an interface), does nothing. It's just a description of how one would ask the system to perform some function. It may be written in a way such that it describes what the system will do to produce a result. But that's merely descriptive, not functional.
> aren't all APIs simply definitions
Isn't all text simply a description of something? But what can be copyrighted isn't the something, nor is it any description, but that particular text. A REST protocol isn't a specific text while an API is.
All text is a description of something, but not all text is copyrightable. I would hold that an API is a textual definition of processes used to interact with a system. I don't think that kind of rote technical description is covered by copyright.
I guess I'm confused over what you refer to when you say REST protocol. I'm imagining a textual description of endpoints, arguments and expected return types. Just technical details. Maybe you're talking about the actual implementation?
I didn't say all text was copyrightable; I said anything that isn't text -- or any other fixed form -- isn't. A REST protocol (i.e. a REST API) doesn't have a fixed form. You can describe the very same protocol using many different texts (i.e. documentation) -- something which you cannot do for an actual API, which is text. While each of those documentation texts may be copyrightable in itself (technical documentation is very much copyrightable), the REST protocol itself isn't. It is only a mechanism, whereas an API is indeed a mechanism, but it is also a text. Since it is a text, it might be copyrightable, and since a REST protocol isn't a fixed text -- it is certainly not.
As far as I can tell, the fixed form of an API has only two purposes/aspects:
First, naming. The naming of things allows them to be used by programmers. You could replace every unique identifier with a random dictionary word and the API would still work, although nobody would want to use it.
Second, structure(/sequence/organization). The structure could be transformed arbitrarily with the constraint that the operational aspects continue to behave unchanged. The only possible impacts, then, are that one structure is easier to use than another, or performs better than another; those are functional (in the general sense, not in the programming sense) differences, therefore should not be copyrightable.
Not everything that is fixed is copyrightable. It has to have creative spark, and the creative spark cannot be in the service of functionality. (Arguably, if it's in the service of functionality it's not creative at all, even if it naïvely seems like it is, because such "creativity" is indistinguishable from advanced-enough soft-AI optimization methods, with either performance or A/B testing for usability as the metric)
> Not everything that is fixed is copyrightable.
Right, but something that is not fixed -- like a REST protocol (aka "API"), which could be described by many different texts -- is not copyrightable even if APIs are. Being fixed isn't a sufficient condition, but it is a necessary one.
I'm not saying APIs should be copyrightable, just that their copyrightability (if they have it) doesn't transfer to REST protocols.
I think you're describing the client side of the API.
A way of looking at REST APIs in the context of this Oracle case would be to imagine a Stripe clone appearing with an identical API to Stripe's, to the point of being interoperable with existing Stripe client code/libraries. Could Stripe claim copyright over the way their API is designed in this situation? If Oracle gets its way, then perhaps.
> Could Stripe claim copyright over the way their API is designed in this situation?
Oracle isn't trying to copyright the way their API is designed. They're trying to copyright the API. A REST protocol, unlike an API, isn't a text (or any fixed work). What isn't fixed can't be copyrighted, but it could possibly be patented (a way of doing something may be patented).
You can't copyright an idea, but you can copyright a text (or a photo, a video, or a recording). An API is a text; Stripe's protocol (or "API") isn't (though Stripe's specific documentation page describing their protocol is probably copyrighted).
I suspect a subset of that has, in fact, been tried (and the rest only hasn't been tried because of obvious prior art).
On the one hand, this would have serious implications for compatible FOSS reimplementations of proprietary APIs, such as Wine, libc, emulators, etc.
On the other hand, this would make it far easier to enforce copyleft licenses like the GPL.
I'm one of the people who provided text and examples filed in the EFF's amicus brief against, and on balance I'm not a fan of stricter copyright like this, but it's interesting to consider how this ruling could be used positively.
I'd be curious to hear RMS's stance on the issue, but I'm guessing he would agree with Oracle. http://clisp.cvs.sourceforge.net/viewvc/clisp/clisp/doc/Why-...
That's not the same issue.
He's talking about distributing code that is not functional unless linked with a GPL library. Not about distributing code that replaces such GPL library.
Oracle is basically saying that you can not write a compatible implementation of Java.
It's partially relevant to the plan Mr. Haible had to get around the GPL by putting the onus on the user to combine readline and CLISP:
> I built a libnoreadline.a that can be linked together with lisp.a, replacing libreadline.a .
> I will reorganize the distribution into 2 independent parts: > * clisp.lzh containing lisp.a and libnoreadline.a, > * readline.tar.Z containing libreadline.a and its source.
> The first one is enough to build a CLISP executable. It contains no GNU parts.
If readline's API were copyrighted and unreimplementable, this would still be infringement. However, this is not actually the argument rms used; rather, he said:
> The FSF position would be that this is still one program, which has only been disguised as two. The reason it is still one program is that the one part clearly shows the intention for incorporation of the other part.
Who knows whether that would hold up in court or not.
Incidentally, these days (well, since 1997 or so?) we have editline, which, rather than being a sort of low-effort dummy implementation like the proposed "libnoreadline", is a full-fledged BSD-licensed readline replacement which provides a readline compatibility API. One possible outcome of this case, in which Google loses on both copyrightability and fair use, would make it arguable (not certain - Java is much larger than readline) that editline is infringing the GPL, which would be amusing.
I assume RMS would say that Java is non-free, and that the best move here would be to create a free compiler and runtime -- i.e. a new language.
This stands to reason, as one of the first things RMS did in his efforts to advance Free Software was create a free compiler (gcc) and a free editor (emacs).
He might note that gcc is not meant to replace all other languages. It is just an example of a well-made and libre compiler.
I'm not sure. His main argument in this case was that distribution of a non-GPL program with intention of letting user link with a GPL library was a "subterfuge".
Google's case is different. They didn't write Android so users can choose between a dummy libDoesNotRunAnything or wink, wink unlicensed Oracle JVM.
Very interesting link, thanks for sharing.
From reading that, you can be near certain that RMS would agree.
Or that he would have in 1992. The landscape has changed quite a bit since then.
And the terminology has improved greatly since then; for instance, nowadays the requirement would be described as making CLISP "GPL-compatible", rather than putting it under the GPL.
So it will be used 99% negatively and 1% positively. That doesn't sound like a great outcome to me.
Also, killing FOSS reimplementations of proprietary APIs is exactly why Microsoft filed a briefing in favor of Oracle the last time Oracle won at the CAFC. That and also the fact that Microsoft hates Google much more than Google hates Microsoft behind the scenes, which is why it keeps extorting Android OEMs and wants Oracle to win in this case.
But how often are laws used positively?
This is an overly cynical view. The vast majority of laws are used positively. The are the foundation of this country. When they are abused it makes headlines (sometimes). When everyone gets to work and back safely and can afford to pay the mortgage and buy a big screen, it's just business as usual.
I'm asking that based on what I've heard from a friend who runs a VC backed company. He said he needed VC largely because an incumbent in his category decided to sue him rather than compete. The lawsuit was rather frivolous, but when you get a bunch of people with a dim view of computer programming involved, then you need lawyers. And lawyers are EXPENSIVE. They are much much much more expensive than computer programmers. And then it becomes not so fun to run a company. It was about writing great software. Now it's about defending yourself in court. Total nightmare.
That's a pretty nightmarish scenario, and I sympathize with your friend. However, it does nothing to convince me that most laws are used for evil.
I firmly believe that laws provide psychological boundaries for most people (in that I believe most people are neutral good, lawful good or neutral evil), and provide tools for some to abuse others (the lawful evil). Given a perfect distribution, or even a bell curve, I think yes, most uses of law are not used for evil purposes. But there is a significant segment of the spectrum that does. Of course, in my purely anecdotal system based on Dungeons and Dragons. :P
Dan Ariely's recent book titled "Dishonesty" presents a lot of research that supports this. His thesis (in part) is that people tend to cheat / lie right up until the point they can no longer internally think of themselves as decent people.
In this interpretation, the legal system is a reasonably objective proxy to inform people how far they are across the line. This suggests that even unenforced laws can help establish an acceptable norm, so people have an external comparison.
In my opinion, far too many people are lawful neutral, and far too few are neutral good.
> The vast majority of laws are used positively.
I find that a sensible way to look at it is that laws that are used are bad laws. Because almost everyone follows sensible laws so they only need to be litigated in rare outlier cases. By contrast, bad laws end up in the courts continuously because they're susceptible to abuse by dishonest parties.
So the vast majority of laws are used negatively, because good laws don't have to be used.
Emulators are a tricky one because they often require a BIOS file which does break copyright.
No more so than the games, and some emulators have reimplemented BIOSes.
> No more so than the games
It goes without saying that copying games is illegal. Well, bar a few caveats which seldom apply to people who run emulators.
> some emulators have reimplemented BIOSes
I'm sure some do but many don't - hence my point.
> It goes without saying that copying games is illegal. Well, bar a few caveats which seldom apply to people who run emulators.
Obtaining ROMs for games you own may or may not be, depending on your jurisdiction; in any case, it seems entirely ethical to have ROMs for games you own.
Likewise for BIOSes.
I'm just going to play devil's advocate here, just for the sake of discussion, not because I believe it or not, but I think you could argue that obtaining ROMs for games you own is not ethical. The "phase shifting" argument is never one that held much water legally and certainly the industry would argue that if you want to use the content in a different form (i.e. an emulator), that you should pay for that additional right. It is a copy, after all. In the same way that the music industry would argue you can't upgrade all your vinyl records to mp3 without paying again. For example, should I be able to get Photoshop for all available platforms just because I happen to own one copy?
This, of course, brings us into the thorny world of whether copyright even makes sense in the software business. Copying seems to be an essential part of using a computer (copying runtimes into memory, caching web pages to your computer, etc.) so it may be an outmoded way of thinking about protecting IP.
> In the same way that the music industry would argue you can't upgrade all your vinyl records to mp3 without paying again.
The music industry would love it if you had to pay for music multiple times, but you can nonetheless rip your own CDs. Or vinyl records with the right equipment.
>The music industry would love it if you had to pay for music multiple times, but you can nonetheless rip your own CDs. Or vinyl records with the right equipment.
You can, but it's not legal, at least not in the United States. It's never really been litigated, but a reading of law would seem to say it's not legal. There's no "personal use" or "personal backup" clause in the law. It's a copy, and copying is not OK outside of the "fair use" bounderies outlined in section 117 (there's also some provisions for libraries and archives, but those don't apply to individuals).
Legality is really tangential to the point, however. The question is that for any given work, whether that's a book, piece of music, game, etc, do you "own" that work seperate from the physical media you purchased it on. Can you obtain a ROM, a copy of the book or a copy of the record in question legally in perpetuity because you bought it in one form once?
Recording a film from TV is copying as well, but that was litigated all the way to the Supreme Court, which ruled that it was legal. See https://en.wikipedia.org/wiki/Sony_Corp._of_America_v._Unive.... , AKA "Sony v. Betamax".
That seems like a fairly clear precedent.
Also see Sony v. Connectix for a somewhat related case regarding emulation and BIOSes. In that case, Connectix obtained copies of Sony's BIOS as part of reverse-engineering it (though they didn't distribute BIOS images with their emulator), and that was ruled legal.
That seems like an even clearer precedent, specifically discussing emulation, as well as copying, for commercial purposes even.
Now, it is fairly clear that sites hosting ROMs for download are violating copyright law. Then again, so is the Internet Archive, and I'd bet the majority of people on HN agree with what archive.org does.
> Legality is really tangential to the point, however. The question is that for any given work, whether that's a book, piece of music, game, etc, do you "own" that work seperate from the physical media you purchased it on. Can you obtain a ROM, a copy of the book or a copy of the record in question legally in perpetuity because you bought it in one form once?
Personal opinion, not based on any particular country's copyright law or precedent (though there is some precedent): personal copying without redistribution should always be OK. It's distribution that copyright should cover.
(That's separate from my opinions on how copyright law ought to be changed.)
I don't think Universal v. Betamax applies. It specifically uses the word "time-shifting", meaning that it was meant simply to record a live program and watch it at a later time. Courts have subsequently rejected "phase-shifting" as an argument (see Napster). I do not believe Universal v. Betamax is sufficient precedent to the wholesale copying of your media for "personal use". I maintain that the specific facts we are discussing have never really been litigated and that the landscape has changed drastically since then, enough that courts would seriously reconsider Universal v. Betamax as precedent.
Down to the next point about obtaining a copy, I think there are two relevant points:
1. If you own it are you allowed to copy it?
To this I would personally argue yes. But I can see how copyright holders argue no. You purchase an item, not its contents. (When I think about the limits put on the aftermarket repair and upgrade market by hardware makers and the outrage that causes, I think there's a reverse logic that applies in this situation.)
2. Should you be able to obtain that ROM or copy because you purchased this item? (ethically, not legally)
This is thornier. Should I be able to download an ebook from a pirate site because I bought a copy of the physical book? What about an old nintendo game I bought many years ago? That to me is a more interesting ethical issue. I certainly did not buy a perpetual license for all forms of that work, but it's not like I can go pick up a copy of a game for my Android either. Of course, if I could pick up a commercial copy (Nintendo resells old games for its new platforms), would it still be OK?
But yes, I also have opinions about changing copyright law, or really reverting it to an older time. I do firmly believe copyright is a good tool to encourage the generation of art, knowledge and entertainment, but I believe that a perpetual monopoly on that content for a lifetime and for your children's lifetime (or companies) is counterproductive to that goal.
> It's distribution that copyright should cover.
Until the TPP takes effect around 2019.
No action may be brought under this title alleging infringement of copyright based on the manufacture, importation, or distribution of a digital audio recording device, a digital audio recording medium, an analog recording device, or an analog recording medium, or based on the noncommercial use by a consumer of such a device or medium for making digital musical recordings or analog musical recordings. [0]
In fact, the Rio's operation is entirely consistent with the Act's main purpose – the facilitation of personal use. As the Senate Report explains, "[t]he purpose of [the Act] is to ensure the right of consumers to make analog or digital audio recordings of copyrighted music for their private, noncommercial use." S. Rep. 102-294, at 86 (emphasis added). The Act does so through its home taping exemption, see 17 U.S.C. S 1008, which "protects all noncommercial copying by consumers of digital and analog musical recordings, " H.R. Rep. 102-873(I), at 59. The Rio merely makes copies in order to render portable, or "space-shift", those files that already reside on a user's hard drive. Cf. Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 455 (1984) (holding that "time-shifting" of copyrighted television shows with VCR's constitutes fair use under the Copyright Act, and thus is not an infringement). Such copying is paradigmatic non-commercial personal use entirely consistent with the purposes of the Act. [1]
[0] 17 U.S. Code § 1008 Prohibition on certain infringement actions
[1] 180 F.3d 1072. 1078-1079. 51 U.S.P.Q.2d (BNA) 1115 (9th Cir. 1999)
So the law does specifically say that making digital copies of music for non-commercial use is ok and it has been reviewed by the judiciary (to some extent).
There is also 17 U.S. Code § 117 which allows backup copies or computer programs "that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful".
You can still get yourself in trouble related to the DMCA depending on what you are doing, but all of your assertions are false.
That case specifically stated that the Rio was not covered under the AHRA because the AHRA covered copying to analog media and digital media specifically meant for copying. It implies that "space shifting" is fair use, but it's also pretty clear that fair use is not what's being litigated. That language is interesting, but tangential. Until an actual consumer who is copying their music is sued, we just don't know.
I still maintain that where both Universal v. Sony and RIAA v. Diamond are persuasive, the facts are not enough to bind a future court. Ripping CDs may be fair use, but there's not enough legal precedent to say for sure.
And p. 117 doesn't really apply here because the copy is not for archival purposes, it's for use in an emulator. That is not "archival".
As I said, I'm playing devil's advocate here, I don't necessarily disagree with your argument, but I do firmly feel there is a great deal of legal uncertainty in this area.
ethics != law
Another win for lawyers.
Unfortunately now the USA is goign to try to push this ruling all over the world with TIPP (http://en.wikipedia.org/wiki/Transatlantic_Trade_and_Investm...).
It's not enough that the USA destroys their own entrepreneurial spirit but everybody else as well.
Worry not, friend. It will implode under its own weight soon enough. It is not sustainable.
Programming is in this odd position somewhere between the structure of math and the creativity of writing. Some things feel as obvious as basic addition, which clearly should not be copyrightable, while other things feel as clever as complex poems, which clearly should be copyrightable.
I am not a copyright expert, but in my opinion APIs usually fall closer to the structured math half of programming.
ex. GET, POST, PUT, or DELETE to the following:
/users
/messages
/comments
/login
/logout
/signup
/payments
etc.
Who gets those copyrights?
When I lived in Java based environments I would have agreed with you. But, having moved on and seen C#, Ruby/Rails, Objective-C, etc. Seeing how differently APIs have been implemented I have an appreciation for the creativity possible in API design.
But, there seems to be a balance, is the API of a single class copyrightable? No, probably not. Is the API of a large system like Java's copyrightable, I really do think so.
Having said that, I disagree with the protections an API suddenly gains once we say I have a monopoly on its use and license. E.g. This verdict likely just made every emulator an act of copyright infringement. Does intel own the API on the x86 instruction API and can lock out AMD?
The entire reason the PC business exploded was because the IBM BIOS (an API if I ever saw one!) was reverse engineered, documented, and then clean room reimplemented by Compaq
I'm not hugely aware of the intel/AMD history but as I understand AMD invented x64 and license it to Intel? That's probably over simplified, but the point potentially stands : if such a ruling applied for Intel over x86 would we expect a similar one for AMD over x64?
if they did that, they would become a monopoly. It's the only reason they keep amd alive.
I don't understand patents like this...
Could a store owner in a mall patent the way that users walk into the store, buy a t-shirt, and leave?
Anyone able to explain to me how the linked patent was deserved? I'm genuinely curious.
A Stunningly bad idea if this were ever to stand. A really idiotic move by the Whitehouse - increasing the scope of the Copyright law is probably the last thing people thought of with the whole "Hope & Change" thing.
Something like WINE would be in a whole mess of trouble not to mention that a decision of such magnitude would enrich the Lawyers and decimate the Software industry.
Entirely predictable.
Obama's VP was one of the strongest supporters of all things copyright in Congress during his legislative career. Obama's administration has clearly been on the side of Hollywood etc as well. Given that fact, on any issue you can depend on this administration to come down on the side of the strongest and most expansive possible interpretation of what should be covered by copyright.
In this conflict, Oracle wants copyright to cover more things. Google wants it to only cover what it has historically covered. Therefore this administration will back Oracle.
* In this conflict, Oracle wants copyright to cover more things. Google wants it to only cover what it has historically covered. *
This is incorrect. By most reasonable readings of copyright law, API's have always been covered by copyright, unless deny that API design holds any modicum of creative expression. So it's more Google that's trying to reduce the scope of what's protected rather than Oracle trying to expand it.
We can argue what readings are reasonable until the cows come home. But most lawyers had thought this area of copyright law settled. Creative expression is copyrighted. Functional expression is not. In cases like http://en.wikipedia.org/wiki/Sega_v._Accolade, use of copyrighted material where necessary for functional interoperability has been ruled fair use.
See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1323818 for some of the history about how this came about.
I am somewhat familiar with the history of these cases, and I would disagree that most lawyers thought it settled because this case is subtly but significantly different. The Sega etc. cases were about binary interoperability, which I'd agree is well-settled law. The thing that most of us programmers get confused about is, APIs are for humans to design systems that interoperate with other systems. They are not necessary for binary interoperability, at least for Java.
To understand what I mean consider this: You can design an API for file handling that looks nothing like the Java API and yet compiles down to exactly the same JVM bytecode. Case in point: Jython and JRuby. It is the byte code level interfaces that cannot be copyrighted because they are purely functional. The human readable Java API on the other hand are just one form of expression of that underlying functionality.
ridiculous. copywriter apis will breed a whole new class of lawsuits making it less feasible for smaller companies to compete.
What about POST to /login who copyrights that one first?
Of course there is the right to parody. I wonder if we'll see parodies of APIs as a way to sidestep copyright.
I think this will cause a lot people to move away from java and ultimately harm Oracle most, causing other companies to not follow their example. Let's just stay away from java, there are plenty of free languages.
I'm doing everything I can to kill Oracle at my organization. I work for the State government too. One success story will breed many more is my hope.
Java is as much an Oracle product, as water is an Aquafina product or space is a NASA product. So, no, Java has gained enough ubiquity and popularity now so that no one company can monopolize it.
Many open source implementations of Java already exist like Apache Harmony project, the OpenJDK or Red Hat's Iced Tea apart from Oracle's reference implementation.
Coming to the point of there being plenty of languages, I don't think there are any exact substitutes. Low level languages like C/C++ are a bit overkill for application development.
Python is good (I'm a big fan myself), but an interpreter is much slower than a JIT compiled language even on a quad-core. I think we should have python as an option, but that should not be the only language.
The only real replacement (and even a better one) in my opinion is C#. C# is a much evolved language than Java and is also open source (Microsoft has made it so through the MCP).
I don't understand this panic in people minds.
Java is free to develop with.
Java APIs can be copied and used, with one condition - all APIs from JDK should be used and nothing can be removed. Google failed to comply with this.
I'm looking forward to seeing if there are any relevant announcements at Google IO over the next few days.
s/^\([a-zA-Z_]*\)(\(.*\))$/ggl_\1(\2)/ ??
Edit: my regexp joke is mangled by markup, but who cares ?
Edit: fixed regexp display (not that it affects joke).
put a couple of spaces in front of it
*like this*I don't know if I'm failing to read regexes or failing to see the humor. Can someone explain/kill the joke for me?
I believe it's basically a suggestion that one replaces each `foo` or `bar` API call with a prefix, e.g. `ggl_foo`, `ggl_bar`. I expect that doing so would get one slapped (literally or figuratively?) by a judge for being a wiseass.
The API is just a signature for calling the function -- I was joking that instead of
what Google could do is:screen_draw(int x, int y);
and say "New API -- they've got screen_draw(), we have ggl_screen_draw()".ggl_screen_draw(int x, int y);Copyright protects deivative works, not just literal copying, so if copying the API is a violation, so is such a direct transformation.
I don't follow this too much, so might be talking nonsense, however I don't understand where all this fuss is coming from.
From the start of this I interpreted situation this way - Java's goal was "run everywhere" (wherever it succeeded or not is for everyone to decide, but its irrelevant here). Java JDK follows this goal with main license requirement - you can implement your own SDK, but you should take all APIs, not part of it - all or nothing deal. Goal being that programs from main JDK should run on your new SDK.
This principle was violated by Google and I just don't see why anyone would support Google side from rational point of view (not talking about morality, innovation or whatever).
What can we do? Is there a place we can (as an economic sector) throw money to make this happen?
Fucking hell.
EDIT:
Thanks Obama!
"The Justice Department is weighing in on the hot-button intellectual property dispute between Google and Oracle, telling the Supreme Court that APIs are protected by copyright.
The Obama administration's position means it is siding with Oracle and a federal appeals court that said application programming interfaces are subject to copyright protections. The high court in January asked for the government's views on the closely watched case."
The current posture of this case is a petition for certiorari (Google asking the Supreme Court to hear its appeal). These are not merits briefs (about who should win) because the Supreme Court hasn't agreed to hear it yet. They might decline to hear it and then it would go back to a lower court for further proceedings in the underlying case, but with arguably an adverse precedent out of the Federal Circuit on the books.
While I think it's now too late to file amicus briefs on the cert petition, if certiorari is granted (as Google hopes and the Solicitor General just argued against), anyone can file amicus briefs on the merits. Companies, trade associations, nonprofits, individual experts.
I don't know exactly whom people should write to in the government expressing their displeasure with the Solicitor General's position. (It's supposedly a completely nonpolitical decision, so it's unusual for people to openly lobby about it or express opinions about it to elected officials.) You can certainly write to Congress saying that you want to see legislative clarification that APIs are noncopyrightable.
Slight correction regarding the part saying that 'anyone' may file one: "An amicus curiae brief may be filed only by an attorney admitted to practice before this Court as provided in Rule 5."
Sorry, that's quite right. I should have said "through an attorney" to avoid the possible interpretation that you could personally write and file a brief.
That rule is stricter than other Supreme Court rules related to filings by parties. If you're a natural person and not a corporation, you can file pro se pleadings before the Supreme Court in your own cases. Just not in other people's cases.
Yes, that's how I interpreted it, but I thought I should point it out to avoid confusion. I also thought I remembered this being a fairly recent rules change, so there's that too.
If APIs are copyrightable, then so are protocols. Hmm.
Silly question. Is there any potential for Google to move off of Java (perhaps to Go) for Android development as a result of this?
Probably not, but Google has already developed a different runtime. http://en.wikipedia.org/wiki/Android_Runtime
Seems unlikely, since the article mentions that Google has already stopped using the code in question.
Google stopped using a bit of code from the OpenJDK that they accidentally copied wholesale. The main claim is on the basic concept of reimplementing the Java standard library, which Google can't stop doing in a hurry.
A parallel question - who owns copyrights to community written APIs of MySQL that Oracle so conveniently sells?
Every API function name should have to be trademarked instead.
Naming things is one of the hard things in Computer Science.
The other hard thing is cache invalidation, and off by one errors.
The other hard thing is collecting royalties, apparently.
Fuckers.
Not nearly hard enough, apparently.
So, if the Supreme Court rules that APIs are copyrightable, then wouldn't that mean that someone could use AWS with some, for example, Java code generation tools that created classes with method names comprised of randomly selected words from a dictionary - effectively performing a "million monkeys with a million typewriters" attack on the entire possible API naming space?
Publish the generated code on Github. Early on, you would need to test the generated code against publicly published APIs to ensure you didn't publish code infringing on existing APIs, however, over time you could "own" the remaining API naming space.
No, while you might get a copyright that way, copyrights aren't patents. They only protect against actual copying and derivation. Independently authored works which happen to be similar, even identical, to some subset of a corpus are not a copyright violation. You don't get ownership of the naming space, just exclusive right to copy from your own work.
This thread is overwhelmingly against this stance by the DoJ, with a few "mixed" reactions. Whenever I see threads like this I wonder about opposing viewpoints...
Does anyone think this is a good thing? If so, why?
The appeals court overturning Posner's decision about the general copyrightability of APIs and the amicus brief are both good things, because they are based on the correct legal rationales. Assuming your position is that copyright protection should apply to software at all, that is.
The fact that the existing fair use exception language is not clearly and explicitly permitting Google's use of the API is a bad thing.
What is the motivation for the Solicitor General to put out such a brief? Is he required for some reason to make statements about matters he does not understand? This brief repeatedly claims that programmer familiarity was the sole reason for copying the JDK APIs and completely rejects the fact that compatibility with existing libraries (such as Guava, apache commons) was a technical goal, on the absurd grounds that Android does not implement ALL of the JDK (e.g. java.awt, javax.swing).
Oracle ... said the appellate court's decision was a
"win for the entire software industry that relies on
copyright protection to fuel innovation."
It seems obvious at this point that no matter where the government draws the line, the open source movement will fight through it until all software that should reasonably be freely available is freely available.
For this reason I really think it's a moot point.
The unfortunate aspect of this is every hour / day government employees continue to debate this is another hour / day those government employees could be doing something useful.
(To rehash what I said on Twitter...)
I don't think this is as bad as the headlines make it sound.
Here's a direct link to the brief in case you can't find it in the article (I couldn't):
http://computemagazine.com/wp-content/uploads/2015/05/Google...
While the DoJ does fully agree with Oracle on the question of copyrightability, the brief goes into some length about its belief that interoperability issues would be appropriate and relevant to a fair use argument - fair use being the question that was never decided in the original trial due to a hung jury, and AFAIK would be subject to appeals regarding the legal standard anyway. For example, it states: "Interoperability and lock-in concerns like those raised by petitioner can appropriately be considered as part of fair-use analysis."
Now, if you're FOSS Patents, you take the one sentence where the DoJ uncritically repeats a claim about interoperability that's been made several times in the record and never really contested, as part of its restatement of the facts, and you extrapolate it into something "damning" for Google's entire fair use argument:
http://www.fosspatents.com/2015/05/us-dept-of-justice-finds-...
The claim is: "The Android platform uses the Java programming language, but petitioner purposely designed Android not to be compatible with the Java platform or interoperable with Java programs." I'll get to that in a bit.
Mr. Mueller argues that the discussion on the relevance of fair use is just window dressing and that "the U.S. government has also concluded that Google can't make a 'fair use' argument based on compatibility or interoperability because of the specifics of this case". Based, as far as I can tell, only on that sentence (and a repetition later), never mind that the brief also explicitly mentions that Google's argument about programmer fluency (i.e. even if Android isn't compatible with Java software, it avoids lock-in by letting programmers use their existing skills) is relevant to fair use... or the fact that the issue which is supposedly pivotal is only mentioned in passing... or that the appeals judgement which Google is trying to get overruled already states, and the brief quotes, that there are not yet "sufficient factual findings" regarding the questions involved in fair use - for the DoJ to actually be rejecting Google's fair use argument, it would have to be supposing that there are already sufficient findings, without actually saying so.
So much for that.
But let's get back to that statement, about Android not being compatible with Java programs. If you're like me, you found it absurd on its face when it first showed up in the appeals judgement, because while Android is not compatible with entire JME applications, it is compatible with many Java libraries and with non-UI code, which in reality is extremely important if you're trying to port your Java codebase to Android. I think (correct me if I'm wrong) that Google can't really start an argument over it, because Oracle made these contentions at trial and Google did not contest them then. I fail to understand how Google's lawyers allowed such a misleading claim to reach a jury when it did - maybe, as non-programmers, they didn't fully understand the issue either. But in any case, if the Supreme Court rejects Google's case and there is a new trial on fair use, Google will have a chance to start fresh with the whole line of reasoning.
It will arguably be better for all of us if the Supreme Court accepts the case anyway and decides Oracle has indeed failed at the first hurdle - that Google has not copied something copyrightable in the first place - because the more uncertainty there is around clean room reimplementations in general, the more people will be discouraged from working on such projects, decreasing interoperability. Also, fair use is partially a question of fact (as opposed to law) and thus for a jury, and while I wouldn't trust judges these days to truly understand the facts and actual practices around software issues, as opposed to making analogies that act like a funhouse mirror... I trust randomly selected juries even less. But in reality, the applicability of copyrightability vs. fair use is a relatively arcane question that will be decided in part by however the statute happens to be worded, and Oracle getting to the next hurdle instead is not the end of the world.
Also, even if the lack of compatibility with entire applications is (implicitly or explicitly) found critical in such an argument, projects like Wine which are more principled about compatibility and do run entire existing applications will have some wiggle room. So don't despair...
If the federal government cannot figure out how to protect people's tax returns from hackers (yes the IRS was hacked by "criminals" recently), and if it spends hundreds of millions (billions?) on re-coding the IRS only to fail every time, then it certainly has no business trying to regulate APIs.
Can someone give us an ELI5? Pros/Cons etc.
Con: all the BSDs and Linux are now owned by whoever most recently picked up the POSIX APIs. ReactOS and WINE are now illegal. SQL is the private property of IBM.
Pro: I guess if you hate Google because you love Steve Jobs or something it looks like a win.
It's all fun and games until IBM sues Oracle for SQL royalties.
If I didn't think it would negatively impact the rest of the industry, I'd pay to watch that.
It would be the only possible good outcome. Unless it turned out someone owned enough of the CP/M API for it to bite Microsoft in the bum.
(While we're dreaming, would HP's ownership of VMS mean anything re: NT...)
None of that has happened. An amicus brief has been filed, that is all. An amicus brief is not law and the Supreme Court has not yet ruled one way or another.
The current holding comes from the Federal Circuit Court of Appeals and is in Oracle's favor. Unlike other regional Courts of Appeal, the Fed Circuit's decisions are binding nationwide because the court has subject-matter jurisdiction rather than geographic jurisdiction. The Solicitor General's amicus is in full support of the Fed Circuit's decision, and the Supreme Court has historically taken an SG amicus hugely into account when the SG is not a party to the case. Should they choose to do so here, they will not grant cert, let the decision stand, and it will be binding nationwide due to stare decisis.
So, while your statement is true, the situation is more dire than you suggest.
Thanks, I wasn't aware of all that.
Quick question - do you feel the need to associate this to Apple because of your deep personal hatred for that company, or for your deep abiding love for Google?
Or was it neither, and you just like using rhetorical devices to bolster your weak points?
You're reading far too much subtext there. He's "pro" was just a flippant way of saying "there isn't any positive to come from this aside the super shallow brand-loyalty reasons"
I'm sure you had a point, but you didn't make it in an intelligible way.
Pros:
Oracle makes a bunch of money from Android.
Cons:
Kills innovation for fear of lawsuits. Feeds the patent trolls.
The case doesn't touch patent law in the slightest, if I understand it correctly, though.
(I am not saying the DoJ opinion is good in any regards whatsoever, to be clear)
No, but it adds copyright trolls to the mix. At least you can count on patents to expire eventually, copyrights are forever in software years.
The key distinction is, of course, you can't infringe copyright by accident. If you build your platform on someone else's proprietary API, without their permission, then can you really complain when you get sued?
So, wine (the windows emulator) should be illegal?
In the context of the parent comment: if you build a business cloning Microsoft's Win32 API, I don't think you can complain if you get sued in the same way you can for a patent troll.
And yes, I think Microsoft should get to decide whether it wants clones of Win32, and also that it's a waste of time for open source developers to implement non-open source APIs.
Taking that further, the following things would be illegal:
- The HTML parsing specification (created by reverse engineering IE6 without Microsoft's cooperation), and by extension all non-IE Web browsers.
- Except IE is also illegal, because JScript was a hostile clone of JavaScript, down to the APIs.
- The x86-64 ISA, for two reasons: first, because AMD cloned x86 to start with, and second because Intel cloned AMD's work after seeing its success.
- All versions of Unix in common use; thus, by extension, 95% of smartphones by market share.
- VMware, by providing implementations of the proprietary x86 supervisor instructions in user mode.
Reverse engineering of proprietary APIs for the purposes of interoperability has been responsible for a lot of technologies that we use all the time. I understand the argument about IP protection, but I think an absolutist position in the other direction is a bit too far. In all of the cases above, there is a specific reason why the dominant player responsible for the proprietary API was failing to capture a market need, and the legality of API cloning was what allowed a smaller player to come in, address that need, and achieve a better economic outcome. I'm having a lot of trouble imagining how a world in which all of the above things were illegal would be a better one--you could argue that the dominant player could have done each of those things, but the fact is that they didn't.
It's not my position that you can copyright APIs per se. In my view, the protection in the Oracle case is a coincidence, stemming from the fact that you can't clone a Java API in Java without effectively copying the textual description of the API. So I don't think there would be a problem with reverse-engineering the operation of IE or x86 and describing it in an independently-written specification or implementing the same method of operation in another browser or CPU or in VMWare.
You're right about UNIX, but I don't think not being able to clone UNIX would've been any great loss to the world. iOS and Windows Phone would still exist, and I'm sure someone would have developed a cheap open source OS for the rest of the market.
Intentional humor?> wine (the windows emulator)
Patents are forever in software years. Copyrights are longer than that.
I think of patents as being a lifetime, not forever.
Eternal facepalm. Expected better than this.
What does this mean for android?
If the White House position is successful, it means Android as open source software is finished. It may go on as proprietary, maybe.
It also means SQL, C, C++, POSIX, and more stuff that I can count are forbiden land for open source, and every company making products that include or derivate from them own a non-negotiable unknow amount to some party.
Note: In the US. The rest of us have less crazy copyright laws, at least until we're forced to adopt yours through TTIP.
Of course, at the US, at least at first.
My country is not even a party to the TTIP, but I bet once it's there, we'll import it somehow.
This link should probably be changed to point directly to the Ars post: http://arstechnica.com/tech-policy/2015/05/white-house-sides...
Thanks, we updated the URL from http://lwn.net/Articles/646160/.
Oracle finally showing their true colors...
Why do people care what the supreme court rules?
The US is no longer a country ruled by law. If anything the more ridiculous and barbaric the government becomes the better as it will only swell the ranks of those who realize the government is illegitimate.
Are you saying people should also ignore the lawsuits that come as a result? I don't think that strategy works usually.
Traitor!