Finally, We Have Proof That The Washington Redskins Are Run By Replicants

Appeals Court Considers Overturning Ruling That APIs Can't Be Covered By Copyright

from the and-on-and-on-it-goes dept

Wed, Dec 4th 2013 3:52pm — Mike Masnick

Back in May 2012, Judge William Alsup (yes, he's popular today) issued a very good and very thorough ruling explaining why APIs could not be covered by copyright. Alsup, who claimed he learned to program in Java to better understand the technical details of the case, went into a fair bit of detail in his ruling, which looked like it was clearly designed to explain basic programming concepts to an appeals court who would surely be hearing the case -- and almost certainly with judges who had less (if any) programming knowledge. The appeal was officially heard by the Federal Circuit appeals court (CAFC) today and there are some reports suggesting that the judges are skeptical of Alsup's ruling and may be leaning towards overturning it. Reading through some of the details it appears that at least one judge is clearly on Oracle's side in believing that APIs can be covered by copyright, while it's not as clear where the other two judges on the panel sit.

Given CAFC's history as exceptionally supportive of locking up knowledge and information on the patent side, it wouldn't be terribly surprising if they did so as well on the copyright side (side note: while, normally, copyright cases should travel up the local appeals court route, since this case started as a patent case, even though it ended up as a copyright case, apparently the appeal still goes to CAFC, the court that hears all patent appeals). This is yet another issue with having a court like CAFC, which has long appeared to be captured by those who support a maximalist view of intellectual property.

Still, oral hearings in appeals are not always indicative of how judges are leaning. Reading the tea leaves there is often quite dangerous. The hearing sometimes focus on tangents, or involve judges really trying to test out a particular theory, and final rulings may be more strongly based on the written filings (and, sometimes, briefs from amici -- of which there were quite a few in this case). This case still has a long way to go, but hopefully the appeals court recognizes the careful level of detail that judge Alsup went into in determining that APIs do not deserve copyright protection.

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Filed Under: android, api, cafc, copyright, java
Companies: google, oracle

32 Comments

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kenichi tanaka (profile), 4 Dec 2013 @ 4:17pm

No judge in any court should be hearing cases regarding computers, programming and copyright if they have no knowledge or experience in programming or code.
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Chris Brand, 4 Dec 2013 @ 4:31pm

Re:
That sounds reasonable, but the way the system is actually set up also makes sense. We have judges who are experts in the law, and the lawyers are supposed to bring in the appropriate people to explain the technical stuff to them in terms they can understand. We don't say that a judge can't rule on a medical case unless they've qualified as a doctor, or on a tax case unless they're a CPA...

The real problem is that seems to be quite possible to find "experts" who'll actually obfuscate the issues to help their side, so judges end up judging factual (or almost factual) issues based on the credibility of two expert witnesses.
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Anonymous Coward, 4 Dec 2013 @ 4:36pm

How can they claim that when their API is open on their website for anyone to use?

http://docs.oracle.com/javase/6/docs/api/
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Anonymous Coward, 4 Dec 2013 @ 4:37pm

Re: Re:
but the way the system is actually set up also makes sense

Well, it might make sense in theory. But in practice, it's producing awful results.

So, no. It doesn't make sense after all. It's just a fucked up system that doesn't work right.
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Anonymous Coward, 4 Dec 2013 @ 4:59pm

Re:
Because their claim is that nobody else can use those APIs for their products. In other words, you can't have a functional equivalent of Oracle's libraries.
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Anonymous Coward, 4 Dec 2013 @ 5:10pm

Appeals
Are there any further avenues for appeal once CAFC makes its decision?
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Anonymous Coward, 4 Dec 2013 @ 5:31pm

Re: Appeals
� further avenues for appeal once CAFC makes its decision?

The odds that the Supreme Court will grant certiorari in any particular case are extremely low. So extremely low that the CAFC routinely flouts the Supreme Court's controlling decisions. The CAFC judges know they're unlikely to be reversed no matter what they do.
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Spaceman Spiff (profile), 4 Dec 2013 @ 6:14pm

Gahhh!
If this is overturned, I can't even express what a disaster that would be! Unfortunately, the US Supreme Court is clueless about this cruft, and would likely uphold such a ruling. Oracle wins, and the rest of the world suffers! Ellison should release the API's into the public domain, though that won't help for other stuff. Law is law, and fighting it is costly!
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Anonymous Coward, 4 Dec 2013 @ 6:36pm

So let me guess, the courts decision will ultimately be based upon a thorough and complete evaluation and analysis based upon multitudes of input from expert witnesses in the field of programming languages and development .....

Hahahahahaha ----- that will never happen!
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JackOfShadows (profile), 4 Dec 2013 @ 7:54pm

Re:
Which means the OpenJDK is toast. Which should have been expected with Oracle.
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Anonymous Coward, 4 Dec 2013 @ 8:36pm

Re: Re: Re:
Usually because the experts trotted out by their lawyer-pimps are intellectual whore's. They will testify/perform any kind of perverted, dishonest nonsense, as long as the pay/notoriety is high enough!
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BernardoVerda (profile), 4 Dec 2013 @ 9:05pm

Re: Re: Re: Re:
That's not entirely fair -- some of them are honest "useful idiots".
:P
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Sunhawk (profile), 4 Dec 2013 @ 10:39pm

Kudos to the judge who went out of his way in order to better understand the case before making their decision; that's the kind of thing I like to see in my judges.
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Anonymous Coward, 4 Dec 2013 @ 10:45pm

Re: Re:
Another reason to avoid Java....
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The Old Man in The Sea, 5 Dec 2013 @ 12:07am

What will happen?
Programmers working for companies producing non-competing software will continue to use the API's.

Everyone else will find other avenues including no longer using the Oracle Java language. I would then expect to see GPL'ed or Public Domain languages being taken up. Python for example.

Oracle is not exactly renown for its public betterment. They can't even get what it means to have a Relational Database Management System. They hoist an awful system onto us users. Just to clarify, I have been building Oracle based systems since the late 80's. These days I have moved over to PostgreSQL (which is still not a Relational Database Management System) because it is freely available to all.
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Mike Masnick (profile), 5 Dec 2013 @ 1:55am

Re: Appeals
Are there any further avenues for appeal once CAFC makes its decision?

There can be a request to CAFC to rehear the case "en banc" (with a full slate of 11 judges, rather than just a 3 judge panel). That happens sometimes, but it's pretty rare. The ruling would have to be pretty contentious for that to happen...

Then they can request that the Supreme Court hear the case, which is also a long shot since the Supreme Court rejects most such requests. A high profile case hitting on a key point may be of more interest to the Supreme Court, but it's much more likely to take a case if it sees a circuit split in the ruling with other appeals courts. Whether or not that's the case will depend heavily on what the ruling says...

So... yes, there's the possibility of appeals, but also a very real possibility that no such appeals will be heard.
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Bob Dowling (profile), 5 Dec 2013 @ 2:39am

Re: Appeals
The ruling would have to be pretty contentious for that to happen...

I think this would count as contentious. Alsup worked very hard on his ruling and given the amici that addressed his court I think there would be some very vocal agitation by some very rich corporations.
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Anonymous Coward, 5 Dec 2013 @ 4:18am

Re: What will happen?
Actually, what will really happen is more migration of high technology development to countries with saner laws. Which is why those trade agreements are so dangerous; they are aimed at making other country's laws even worse than the USA's, so there will be nowhere to migrate to.
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Anonymous Coward, 5 Dec 2013 @ 5:10am

I thought one of the courts involved with the SCO/IBM saga also ruled that APIs are not copywritable.

If the appeals court over rules this one case, what happens to all the precedent set by multiple lower courts?

Is CAFC a district court?
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Anonymous Coward, 5 Dec 2013 @ 5:35am

Re:
Is CAFC a district court?
The �CAFC�, in full, is the United States Court of Appeals for the Federal Circuit. It is not a district court.

In the U.S. federal system, the U.S. district courts are the trial courts. The U.S. circuit courts of appeal supervise the decisions of the district courts at the intermediate level, under the overall supervision of the U.S. Supreme Court.

�

If the appeals court over rules this one case, what happens to all the precedent�
Precedent is generally divided into two types: pursuasive precedents and binding precedents. Generally, the district courts are bound to follow the holdings of decisions handed down by their own supervising circuit. The decisions of other circuits may pursuade a district court judge, but, on the other hand, the district court might not be pursuaded by some other circuit's decision.

The appellate jurisdiction of the CAFC complicates this simple model. Briefly, the CAFC hears and decides appeals of all patent cases, and their holdings bind all the U.S. district courts on patent matters. On non-patent matters, it's even more complicated. When the CAFC hears and decides a matter that would ordinarily be heard and decided by one of the other circuit courts of appeal, the CAFC should apply the law of that other circuit.
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Anonymous Coward, 5 Dec 2013 @ 6:34am

Re: Re: Re:
Indeed, why should I code in a language where the owner could sue me over using their coding language at any time?

The whole value of a coding language is that other people use it, and computers know how to read it. Granting a patent or copyright on it goes completely against both those goals.
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Anonymous Coward, 5 Dec 2013 @ 8:25am

Re: Re: Re:
Does it really produce awful results, or are "this is awful" opinions being formed by that which strikes the fancy of the news media? For example, when was the last time you read a news story about an everyday matter where nothing out of the ordinary happened?
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Anonymous Coward, 5 Dec 2013 @ 8:29am

Re: Re: Appeals
The CAFC does not routinely flout USSC decisions, and anyone who states or suggests otherwise is woefully uninformed. What goes unstated in most of the "flouting" stories is that the CAFC is many times placed in the position of trying to make sense out of a USSC decision that borders on the unintelligible.
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Andrew D. Todd, 5 Dec 2013 @ 10:55am

Oracle Does Not Hold Most Of The Copyrights, to Anonymous Coward #5
Java is not a language de novo. Its various interfaces are derivative of C++, C, PL/I, Pascal, Algol, FORTRAN, COBOL, SNOBOL, and probably other languages. If interfaces were copyrightable, then Oracle would be in violation of a long list of copyrights. Every new language developer takes the existing complex of ideas and adds a few features.
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Anonymous Coward, 5 Dec 2013 @ 12:10pm

Re: Re: Re: Re:
On the other hand it only takes a few awful opinions being formed in ultra-high-profile cases like this one to outweigh the mundane cases in which it works.
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Andrew D. Todd, 5 Dec 2013 @ 12:20pm

The Legal Precedents (to Mike Masnick, #16)
I beg to correct you. This issue is "black letter law." There are a series of cases going back more than a hundred years, on this point. A typical early case ran as follows: someone published a manual of book-keeping, copyrighted it, and then claimed that the copyright covered the use of the system of book-keeping. I imagine that the author of the book was unhappy that people were buying one copy of the book and using it to direct the work of ten or a hundred clerks at rows of desks, each clerk doing a small portion of the job, and walking up to the chief clerk's desk to consult the book as needed-- or, more precisely, to consult the chief clerk, who then consulted the book in cases which he could not answer out of his head. Hence the author's sense of ill usage at only selling a tenth or a hundredth as many copies as he expected to sell, based on his assumption that every clerk was supposed to be a generalist, learning and practicing the whole art of book-keeping. The courts firmly shot this claim down, insisting that such a degree of protection could only be gained by a patent. The leading cases are: Baker vs. Selden (Supreme Court, 1880); Seltzer vs Sunbrock (S.D. California, 1938); and Continental Casualty vs. Beardsley (2n Circuit, Supreme Court Cert. Denied, 1958). Judge Alsup was not making stuff up out of his head, but operating firmly within a legal tradition from long before computers.

The Supreme Court is not monolithic about copyright, as was revealed in Wiley vs. Kirtsaeng. They will see Oracle's claims as an attempt to turn a copyright into a patent, and shoot it down. The Supreme Court is extremely interventionist when it perceives that a lower court is attempting to systematically resist its rulings. The Supreme Court has a certain reluctance to "upset the apple cart." It tends, when it can, to legitimate the status quo. Hence its rulings in cases involving the duration of copyright, and its rulings in cases involving file-sharing programs and services whose net effect is that anyone can get a copy of anything for free, just as if it were in the public domain, even if it was only published two weeks ago. The classic case of the Supreme Court's reluctance was Dred Scott (1857), and we ultimately had to fight a civil war about _that_. Oracle's claims are not for the preservation of the status quo-- they call for radical changes.

http://en.wikipedia.org/wiki/Dred_Scott
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Anonymous Coward, 5 Dec 2013 @ 3:23pm

Re: Re: Re: Re: Re:
� the mundane cases in which it works.

The mill-run cases produce results that suck the hardest. Ninety-nine percent of the apples in that barrel are rotten.

I think the judiciary almost always performs better under the glare of public scrutiny. But one good apple shined up and sitting pretty on the top of the barrel doesn't save the truckload.
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hjweth (profile), 5 Dec 2013 @ 6:19pm

Re: copying is copying
When the preprocessor copies the APIs via #include, my program is violating the copyright, so I should definitely avoid writing any code that calls those Oracle functions.
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Lawrence D'Oliveiro, 6 Dec 2013 @ 12:42am

As I recall among the reporting of the original Oracle vs Google trial, at one point Judge Alsup asked Oracle if their problem was that Google only copied a subset of the Java APIs, rather than the whole thing. In other words, Oracle seemed to be making the argument that Google�s harm was in fragmenting Java by introducing an incompatible subset, not in copying it wholesale.

But of course, you can�t claim copyright infringement because the alleged infringer didn�t copy enough.

I wonder if Google�s lawyers can remind the Appeals Court of this little point?
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Anonymous Coward, 6 Dec 2013 @ 4:20am

Re:
I wonder if Google�s lawyers can remind the Appeals Court of this little point?

Re-read the order which is being appealed. On p.31, Judge Alsup writes:
� For example, Java-based code using the replicated parts of the 37 API packages will run on Android but will not if a 38th package is needed. Such imperfect interoperability leads to a �fragmentation� � a Balkanization � of platforms, a circumstance which Sun and Oracle have tried to curb via their licensing programs. In this litigation, Oracle has made much of this problem, at times almost leaving the impression that if only Google had replicated all 166 Java API packages, Oracle would not have sued.

(Emphasis added.)

Do you think that's enough of a reminder for the appeals judges? Perhaps their minds have just been made up all along, and their eyes glazed over as they read Judge Alsup's reasoning.
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Anonymous Coward, 6 Dec 2013 @ 9:40am

Re: Re: Re: Re: Re: Re:
Fair enough but the earlier comment implied the situation on the ground was the opposite.
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Anonymous Coward, 6 Dec 2013 @ 10:35am

Re: Re: Re: Re: Re: Re: Re:
� but the earlier comment implied the situation on the ground was the opposite.

Yes. The immediate comment to which you replied was a fairly subtle troll, wasn't it?

Early in the 20th Century, the progressive answer to decision-making in an increasingly industrialized society envisioned commissions and boards of independent, neutral experts utilizing modern scientific knowledge to inform their decision-making. That gave us institutions like, for example, the FCC, which if you examine the bios of the current commissioners, is not today led by people who emphasize their Electrical Engineering degrees. It's still an open problem.

The point here is that this society-wide problem has been well-recognized for around a century or so.

Someone who implies that that current system only fails when people look, and works well when no one's looking is�well, it's fairly subtle troll.
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