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Google’s copying of the Java SE API was fair use [pdf]

supremecourt.gov

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Re: Google’s copying of the Java SE API was fair use [pdf]

#951

Post by bonzini »

dragonwriter wrote: post #939
bonzini wrote: post #645

Earlier quoted context omitted.

> courts are supposed to interpret the law The law also states that copyright's purpose is to stimulate progress of the arts, and that's why fair use is possible. Interpreting the law also means establishing the limits of fair use.

No, fair use is possible because of the First Amendment. While it is now adopted in statute, the statute was codifying a Constitutional limit that courts previously found in copyright protection grounded in the First Amendment, not the Copyright Clause. But, still, yes, determining the scope and applicability of fair use is part of applying the law.

Ah, I had heard of the first amendment thing but I thought it was why government work must be in the public domain (i.e. putting it under copyright would prevent reproduction and therefore infringe first amendment rights).

Re: Google’s copying of the Java SE API was fair use [pdf]

#953

Post by ccleve »

monocasa wrote: post #673
ccleve wrote: post #630

Earlier quoted context omitted.

As a matter of public policy, I agree that the specification should not receive protection, but under the law as written by Congress, it does. Thomas's dissent is correct. My comment is about process , not policy .

Under the law, they do not receive protection. See Baker v. Selden, which despite it's age is still good law. https://en.wikipedia.org/wiki/Baker_v._Selden

No. Baker v. Selden does not settle the question of APIs and fair use. That is why the Google v Oracle case made it to the Supreme Court.

Re: Google’s copying of the Java SE API was fair use [pdf]

#954

Post by Abishek_Muthian »

dragonwriter wrote: post #932
Abishek_Muthian wrote: post #875

Earlier quoted context omitted.

Not from U.S. Would the discussions, consultations between the judges and the independent subject matter experts be published? Surely there must have been such extensive discussions right? Or is the judgement based upon the subject matter experts presented as witness from both sides themselves? I'm intrigued by how judgements are passed in such intricate technical matters.

> Would the discussions, consultations between the judges and the independent subject matter experts be published? No such consultation exists. > Or is the judgement based upon the subject matter experts presented as witness from both sides themselves? Since this was a decision as a matter of law , and not one turning on disputed facts (the Supreme Court can decide cases on either basis), the judges are the relevant…

Thank you for the succinct answer.

Re: Google’s copying of the Java SE API was fair use [pdf]

#955

Post by WorldMaker »

hyperman1 wrote: post #887
WalterBright wrote: post #758

Earlier quoted context omitted.

Lotus' failure was more because they failed to port to Windows, betting instead on OS/2. Lotus was at a crossroads. DOS was obsolete, was the future OS/2 or Windows? They chose OS/2. Lotus was a big, cash rich company at the time. Their fatal error was not realizing they should have ported 1-2-3 to both OS/2 and Windows. Then they would have been secure regardless of which prevailed.

At that point(1989), the future was less clear-cut than Windows vs OS2. Windows was more a graphical shell for DOS than a real OS, and there were other graphical shells for DOS. From the top of my head: I vaguely remember GEM, I have used one from Tandy. There was something else installed on our school computers, Dynamic Environment or something . Windows before 3.0 (1990) was inferior to a lot of these DOS shells. I…

Right, and Microsoft was still putting so much development work into OS/2 in 1989 that there was still some sort of feeling that OS/2 was possibly the future of Windows. (OS/2 development kits were shipped from Microsoft with Microsoft branding prominently on them right up until the OS/2 3.0 [WARP] split and the origins of Windows NT.)

In hindsight it is much more obvious that Microsoft's involvement in OS/2 was something of a trojan horse to fund early NT development and a short-term hedge in case people did trust the IBM brand more than the Microsoft brand, but at the time it was much more confusing.

Re: Google’s copying of the Java SE API was fair use [pdf]

#956

Post by pdonis »

dllthomas wrote: post #943
pdonis wrote: post #934

Earlier quoted context omitted.

Your honor, I will show that (1) my client never received the Ming vase from the plaintiff, (2) he returned it in perfect condition, and (3) it was already cracked when he got it. I agree such arguments are fairly common, but that doesn't make them any less fishy, in my view.

http://acronymrequired.com/2011/10/the-four-dog-defense.html Where there are contradictory assertions of fact in the various defenses, I agree there's something... uncomfortable about it, at least. But I don't think that applies in a case like "it's fair use, anyway." If we imagine a case where someone copied a small bit of written material for criticism or educational purposes, something clearly fair use, introducin…

> If we imagine a case where someone copied a small bit of written material for criticism or educational purposes

...then we are imagining a case totally unlike this one, where Google copied the entirety of Oracle's API interface declaration code for the purpose of using it to make money. This is one of the key points Thomas makes in his dissent. So this case is not a case of "we weren't sure whether the material was copyrightable, but in any case our use was clearly for a purpose that would be fair use if it was".

Another point in this respect that Thomas makes is that Google tried four times to get a license from Oracle to use their Java API code, before just copying it and using it anyway. That shows what, in legal terms, would be called mens rea--Google clearly knew the code was copyrightable, because if it weren't, they would not have tried to get a license. So Google now saying they aren't sure the code was copyrightable, as they did in their brief in this case, is, to say the least, disingenuous.

Re: Google’s copying of the Java SE API was fair use [pdf]

#957

Post by pdonis »

dllthomas wrote: post #943
pdonis wrote: post #934

Earlier quoted context omitted.

Your honor, I will show that (1) my client never received the Ming vase from the plaintiff, (2) he returned it in perfect condition, and (3) it was already cracked when he got it. I agree such arguments are fairly common, but that doesn't make them any less fishy, in my view.

http://acronymrequired.com/2011/10/the-four-dog-defense.html Where there are contradictory assertions of fact in the various defenses, I agree there's something... uncomfortable about it, at least. But I don't think that applies in a case like "it's fair use, anyway." If we imagine a case where someone copied a small bit of written material for criticism or educational purposes, something clearly fair use, introducin…

Apropos of the "four dog defense", Dashiell Hammett in The Thin Man has a woman say to a man she is walking out on: "I don't like crooks, and even if I did I wouldn't like crooks that are stool pigeons, and even if I did like crooks that are stool pigeons, I still wouldn't like you."

Re: Google’s copying of the Java SE API was fair use [pdf]

#958

Post by jessriedel »

wslack wrote: post #796
jessriedel wrote: post #712

Earlier quoted context omitted.

No, not generally. Congress is 545 different people, who definitely don't have a coherent collective intent. The only thing they did collectively was pass the text of the law. So any coherent notion of "congressional intent" has to mean the intent a person reading the text would infer about a hypothetical coherent author . I don't know anything about this particular case, but it is not at all true in general that the…

I think the intent is usually found in statements made by drafters of the legislative language. Intent is not packaged in the raw text of statute.

And to be clear: intent definitely can be in the raw text. If the whole text of a statute is trying to outlaw a certain kind of activity but one sentence undermines it all under a literal reading (e.g., by excluding all possible people it might apply to), that sentence will be re-interpretted to what it needs to mean for the law to be applied.

Re: Google’s copying of the Java SE API was fair use [pdf]

#959

Post by dllthomas »

pdonis wrote: post #956
dllthomas wrote: post #943

Earlier quoted context omitted.

http://acronymrequired.com/2011/10/the-four-dog-defense.html Where there are contradictory assertions of fact in the various defenses, I agree there's something... uncomfortable about it, at least. But I don't think that applies in a case like "it's fair use, anyway." If we imagine a case where someone copied a small bit of written material for criticism or educational purposes, something clearly fair use, introducin…

> If we imagine a case where someone copied a small bit of written material for criticism or educational purposes ...then we are imagining a case totally unlike this one, where Google copied the entirety of Oracle's API interface declaration code for the purpose of using it to make money. This is one of the key points Thomas makes in his dissent. So this case is not a case of "we weren't sure whether the material was…

> ...then we are imagining a case totally unlike this one

That was my intent. My comment was meant to move to a setting where judgement was clear and then bring it back to see what was preserved; I don't think it did a good job of the second half of that.

> Google tried four times to get a license from Oracle to use their Java API code

Did Google try to license just the API? My understanding was that they tried to license the implementation, and eventually went with a (purported?) clean-room reimplementation. That doesn't seem to indicate a belief (or even a worry) that the interface itself is covered by copyright.

> Google clearly knew the code was copyrightable, because if it weren't, they would not have tried to get a license.

Even ignoring the previous point, I don't think that follows. Outcomes in law are rarely certain; "pay not to have to deal with the question" is not necessarily a bad response to ambiguity (particularly when that ambiguity was created by law and the courts rather than the counter-party, in which case there is concern about motivating more such ambiguity).

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