Bradley M. Kuhn

Ninth Circuit Appeals Court Decision in Oracle v. Google

Bradley M. Kuhn at

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I don't read as much optimism about fair use into the opinion as you do. For three APIs maybe; it's a lost cause for the rest. Not on Sony/Sega interoperability theory, different situation.

Pamela Chestek at 2014-05-12T22:25:30Z

I have a feeling most of this is over my head... but I start wondering about the implications for other free software projects that implement existing APIs, whether Samba and CIFS, or (a few years back) StatusNet and the Twitter API, Wine and Windows, LibreFM and Last.fm, etc etc. Not to dwell on specific examples, but just to point to the broader pattern: free software often re-implements APIs used by proprietary software when providing alternatives.

It's very common for free software (which often happens to be copyleft) to reimplement APIs used by proprietary software.

So...  “if there is even a modicum of evidence that direct textual copying occurred, then the alleged infringer must pass an extremely high bar of affirmative defense to show infringement didn't occur.”

Even if there's something good for copyleft *enforcement*, might it not be bad for a lot of copyleft software at the same time? In particular, free software (much of which is copylefted) that seeks to reimplement APIs used by proprietary software?

(Or, maybe you're simply saying that you are supportive of that statement on the high bar defense when there's evidence of direct copying, but that you disagree entirely that there's actually any evidence of direct copying in this kind of situation, given that it's a straightforward reimplementation of an API, etc.?)

I'm very hesitant to imagine any good coming from this decision...

Blaise Alleyne at 2014-05-12T22:47:13Z

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@Blaise, yes, if there is evidence of textual copying, the bar for affirmative defenses for infringement should be very high.

AFAICT, this case didn't consider what the bar should be if you copied nothing at all, but simply wrote something compatible that happened to look similar. That's the bubble sort example I always use: we all know bubble sort so well that it's basically impossible for us to write bubble sort and have it not look the same as someone else's bubble sort. But, does that mean I've committed copyright infringement? I don't think the court considered that question at all, because of their false assumptions.

@pam, do you really think a jury is going to reject a fair use defense when considered in isolation?

Bradley M. Kuhn at 2014-05-13T13:29:51Z

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@bkuhn, after listening to FaiF 0x44, it seems that you and I are not so far apart.

First, I should like to clarify what I mean(t) by an "API" in the context you presented of there being three things programmers think of when discussing APIs (the idea of the API, the implementation of the API, and the specification of the API). You further mention that the specification is comprised of the API's declarations and its documentation/descriptions. I am compelled to include that last delineation as it is the declarations of the API that I consider to "be" the API for purposes of deciding whether "API are copyrightable". In a Magrittian "Ceci n'est pas une pipe" sense the declarations are not the actual interface but the correspondence between the actual interface and its declarations is pretty much one-to-one -- the other things you mention are much more separated from the interface, and their copyrightability can likewise be considered separately.

Now regarding your challenge to point out where in the trial Google may have admitted to copying the APIs, I agree that Google did not come out and say they copied the declarations of the API (what I consider to be the API). Google's expert witness did concede, however, that the declarations were "word-for-word, symbol-by-symbol" identical and Judge Alsup's jury charge (quoted on your blog) states that "Google agrees that it uses the same names and declarations".

That of course does not answer your challenge directly; nonetheless, in copyright cases I am given to understand (IANAL) that once the plaintiff shows that the accused had access to the copyrighted work and further demonstrates a "probative similarity", the burden then shifts to the defendant to explain how that similarity arose independent of copying from Java. As you point, Google likely copied them from Harmony, but Oracle's claim is that Harmony was never licensed to release their code under the Apache License, and if Google copied from Harmony, and Harmony copied from Java, then the net effect was Google copying from Java.

My personal view is that Sun/Oracle, by failing to protest Harmony releases made under the Apache license, should create a strong laches defense for Google. However, that doesn't bear upon the issue of whether "APIs are copyrightable". Given the hypothetical you posed in your oggcast, had Google directly copied the API declarations from Java and that should be considered infringement, the only mechanism for that is some degree of copyright protection being obtained in API declarations.

saul goode at 2014-05-18T02:53:55Z

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