Oracle v. Google Not Over Yet: Oracle Seeks Another New Trial While Google Seeks Sanctions On Oracle's Lawyers

from the keep-trying-and-trying dept

As you probably remember, a jury decided in Google's favor after a somewhat wacky trial that its use of some of the Java APIs was considered fair use. Oracle, of course, isn't going down quietly. It immediately asked the judge, William Alsup, to reject the jury's verdict, which he refused to do. Everyone expects that Oracle will appeal this as high as it can go, though its chances aren't great.

In the meantime, though, Oracle isn't done trying every possible door at the district court level. Last week it simply asked for a new trial in what I can only describe as Oracle's sour grapes motion. It starts out by claiming that "the verdict was against the weight of the evidence" and thus a new trial is necessary. And then it whines about a whole bunch of other issues, including Google's plans to use Android on computers, meaning that the "harm" portion of the trial was unfairly limited to just tablets and phones. It also whines about certain limitations and exclusions of information it was not allowed to present. These are purely "waaaaah, we lost, fix it, waaaaaah" kinds of arguments. The court also excluded lots of Google evidence as well, and Oracle may not really want to revisit some of that either. You can read the full document below or at the link above, but analyzing all of it is pretty silly. It's strictly a sour grapes argument that is unlikely to go anywhere.

At the same time, Oracle filed yet another motion for judgment as a matter of law... that also seems unlikely to go anywhere. Here, though, the argument is basically that the jury got fair use wrong. The argument here is pretty laughable. It goes through each of the four factors and argues why the jury got it wrong. Now, it's true, as some have argued, that a court can take the four fair use factors and basically come to any conclusion it wants, but it's hard to see Judge Alsup doing that here. It would be shocking to see him do so actually. And, rather than go through each argument, I'll just present the table of contents of Oracle's filing here so you can see how desperate the company is: Basically, Oracle is continuing to falsely pretend that fair use only applies to non-commercial use (it doesn't), and that creating something new with an API isn't transformative unless it's like artwork or something (this is wrong). Oracle's interpretation of fair use is not supported by the history or case law of fair use, and it would be shocking to see the court accept it here.

Meanwhile, on the flip side, Google is looking to punish Oracle's lawyers and asking for sanctions against them for revealing in open court sensitive information that had been sealed by the court.

On January 14, 2016, Oracle’s counsel Annette Hurst disclosed in open court representations of sensitive confidential financial information of both Google and third-party Apple Inc., as well as extremely confidential internal Google financial information.... After Ms. Hurst’s improper disclosures, Oracle and its counsel neither sought to remedy the effects of the disclosures nor acknowledged their wrongdoing. They instead refused to take responsibility for the disclosures, claimed they were inconsequential because Oracle hoped to use the information at trial (which it never did), and even argued that Google’s motion to seal the third party Apple information—which Judge Ryu subsequently granted,... —was “merely a delaying tactic.” ... Within days of the disclosures, and following Oracle’s failure to take remedial action, this information became headline news for major news outlets, at least one of which noted that, thanks to Ms. Hurst, the press could finally report on confidential information that had theretofore been only a subject of speculation.

Oracle’s disclosures and its subsequent actions reveal a profound disregard for this Court’s Protective Order and for other parties’ confidential information. Google and third party Apple were harmed by Oracle’s counsel’s disclosure regarding the terms of a significant and confidential commercial agreement. Google believes it is important, both for this case and for other cases in this District, for the Court to make clear that Oracle’s counsel’s actions were improper, that Oracle’s excuses for the disclosures are invalid, and that Oracle’s failure, after the fact, to cooperate in remedying the disclosures was inconsistent with the Protective Order.

Disclosing confidential/sealed information in court is a pretty big deal, though I have no idea how the court will rule on this matter.

Either way, it's safe to say that there's little love lost between Google and Oracle (and their lawyers).

Filed Under: apis, copyright, fair use
Companies: google, oracle

Judge Rejects Oracle's Attempt To Get Court To Reject Jury Verdict Over Java API Copyright

from the nice-try,-see-you-next-time dept

Following the jury verdict finding in favor of fair use for Google and its use of Oracle's Java APIs (if you haven't yet, you should listen to our podcast about the trial), Oracle asked Judge Alsup to basically ignore the jury ruling. Specifically, Oracle asked Judge Alsup to rule that "as a matter of law" that Google's use was not fair use, thus negating the need for the jury to settle any dispute. This is actually how the original Alsup ruling in this case came about. After the first trial had a jury find Google had infringed, Alsup said that, as a matter of law, APIs were not eligible for copyright protection and effectively dumped the jury ruling... until the appeals court overturned that ruling and sent the case back for a second trial focused solely on the fair use question.

This time, however, Judge Alsup was not at all willing to say that either side prevailed as a matter of law, and has declared the jury verdict final. Alsup's explanation for denying the motions to ignore the jury is well argued, and basically said "look, there was a clear trialable issue here and the jury handled it":

Under the law as stated in the final charge and on our trial record, our jury could reasonably have found for either side on the fair use issue. Our trial presented a series of credibility calls for our jury. Both sides are wrong in saying that all reasonable balancings of the statutory factors favor their side only. To the extent either side now quarrels with the law as stated in the final charge, the time for those arguments was at or before the charging conference or eventually on appeal. For now, at the district court, the jury instructions control.

Alsup notes that, of course Oracle is going to appeal, so as with last time, he adds some background potentially directed at the appeals court more than either of the parties in the case. Concerning the main line of attack that Oracle is expected to use on appeal -- over the instructions to the jury concerning fair use, Alsup notes that there was nothing wrong with the instructions at all, and that both parties had plenty of chances to weigh in on those instructions:

The fair use instructions followed largely the review of fair use law as set forth in the Federal Circuit’s opinion except for modifications urged by counsel and to account for how the case was actually tried. The final jury charge culminated an exhaustive and iterative process of proposals by the judge followed by critiques by counsel. Months before trial, the Court informed both sides that it expected to use the Federal Circuit’s opinion canvassing fair use law as the starting point and requested briefing from the parties addressing what modifications should be made. After reviewing those comments, the Court circulated a first proposed charge on fair use and requested critiques. Counsel submitted their critiques a week later with replies the following week. In light of the critiques, a second draft made substantial revisions, asking counsel to meet and confer to reach an agreed-on instruction in light of that proposal and to submit briefs and responses regarding the areas of disagreement. After reviewing the further briefs and responses, the Court next circulated “penultimate instructions on fair use,” a third draft, and invited a third round of comment. Those critiques also led to modifications and a final notice of the pre-instruction on fair use to be read to the jury before the start of the evidence. Counsel (and the jury) were advised that the final instructions at the end of the evidence would possibly be adjusted to reflect the way the case was tried (and, in fact, some minor modifications did occur). During the trial, the judge sought briefs on several issues in play as the evidence came in. Based thereon, a notice of the proposed final charge circulated the night before the close of evidence. At the charging conference, counsel raised both new points and old ones (although they were permitted to rest on prior critiques). Final modifications followed. The jury was charged accordingly

Alsup also goes into great detail (again, remember that he taught himself Java to better understand the issues in this case the first time around -- and it shows here) discussing the dividing line between Java and not just the APIs, but the "necessary" APIs and the non-necessary APIs. Check out the following, excerpted at great length, to show how thoroughly deep into the weeds Judge Alsup got to understand this case (for clarification, the term "SSO" stands for "Structure, Sequence, and Organization" and was a key issue in the case):

Oracle has portrayed the Java programming language as distinct from the Java API library, insisting that only the language itself was free for all to use. Turns out, however, that in order to write at all in the Java programming language, 62 classes (and some of their methods), spread across three packages within the Java API library, must be used. Otherwise, the language itself will fail. The 62 “necessary” classes are mixed with “unnecessary” ones in the Java API library and it takes experts to comb them out. As a result, Oracle has now stipulated before the jury that it was fair to use the 62 “necessary” classes given that the Java programming language itself was free and open to use without a license....

That the 62 “necessary” classes reside without any identification as such within the Java API library (rather than reside within the programming language) supports Google’s contention that the Java API library is simply an extension of the programming language itself and helps explain why some view the Java API declarations as free and open for use as the programming language itself. At least to the extent of the 62 “necessary” classes, Oracle agrees.

All this said, our fair use issue, as presented to our jury, came down to whether someone using the Java programming language to build their own library of Java packages was free to duplicate, not just the “necessary” functions in the Java API library but also to duplicate any other functions in it and, in doing so, use the same interfaces, i.e., declaring code, to specify the methods — so long as they supplied their own implementing code.
Oracle’s argument in the negative amounts to saying: Yes, all were free to use the Java programming language. Yes, all were free to use the 62 necessary classes from the Java API. Yes, all were free to duplicate the same functionality of any and all methods in the Java API library so long as they “re-implemented” (since copyright does not protect functionality or ideas, only expression). But, Oracle would say, anyone doing so should have scrambled the functionalities among a different taxonomy of packages and classes (except as to the 62 “necessary” classes). That is, they should have used a different SSO.

Here, the undramatic yet practical point comes into sharp focus. If, as it was entitled to do, Google had simply reorganized the same functionality of the 37 re-implemented Java packages into a different SSO (taking care, however, not to disturb the 62 necessary classes and their three respective packages), then Java programmers, in order to use the Java system as well as the reorganized Android system, would have had to master and keep straight two different SSO’s as they switched between the two systems for different projects. Our jury could reasonably have found that this incompatibility would have fomented confusion and error to the detriment of both Java-based systems and to the detriment of Java programmers at large. By analogy, all typewriters use the same QWERTY keyboard — imagine the confusion and universal disservice if every typewriter maker had to scramble the keyboard. Since both systems presupposed the Java programming language in the first place, it was better for both to share the same SSO insofar as they offered the same functionalities, thus maintaining usage consistency across systems and avoiding cross-system confusion, just as all typewriter keyboards should use the QWERTY layout — or so our jury could reasonably have found.

The same could have been reasonably found for the second purpose of the declaring code — specifying the inputs, outputs, and their type. To the extent a specification could be written in more than one way to carry out a given function, it was nevertheless better for all using the Java language to master a single specification rather than having to master, for the same function, different specifications, one for each system, with the attendant risk of error in switching between systems — or so our jury could reasonably have found.

In terms of the four statutory factors, this consideration bears significantly upon the nature and character of the use (the First Factor), the functional character of the declaring code (the Second Factor), and the limited extent of copying (the Third Factor), that is, Google copied only so much declaring code as was necessary to maintain inter-system consistency among Java users. Google supplied its own code for the rest. Overall, avoiding cross-system babel promoted the progress of science and useful arts — or so our jury could reasonably have found.

Honestly that's one of the most thorough and clear descriptions I've seen to date of the fair use question here.

Another issue that came up was whether or not Oracle showed that Google acted in "bad faith." Oracle used a number of emails (often taken out of context) to argue that Google knew it was infringing on Sun's copyrights (though, many of the details suggested the actual concern was more about trademark -- or involved people who didn't really understand the nuances of copyright law). Judge Alsup points out that it's not even clear "good faith" or "bad faith" are even allowed as considerations in fair use analysis, though he notes that he allowed Oracle to pursue it -- and then allowed Google to build a case for "good faith" in response. For the question of whether or not this is an issue "as a matter of law," Alsup notes that it's clearly one that a jury should decide (and did, in Google's favor):

... our jury could reasonably have concluded that Google’s use of parts of the Java API as an accelerant was undertaken based on a good faith belief that at least the declaring code and SSO were free to use (which it did use), while a license was necessary for the implementing code (which it did not use). Our jury could reasonably have concluded that Google’s concern about making an enemy of Sun reflected concern about the parties’ business relationship in light of the failed negotiations that would have brought Sun in as a major partner in Android, rather than concerns about litigation. Mental state was and remains a classic province of the jury.

The judge also rejects Oracle's claim that no one could possibly argue that direct copying of the APIs was "transformative." That's not how the "transformative" test works, Alsup notes, pointing to previous fair use cases, such as the Campbell case over the parody of the song "Pretty Woman," which involved direct copying

In Campbell, the accused work (a rap parody song) used the same bass riff and an identical first line of Roy Orbison’s “Oh, Pretty Woman.” The parody also included exact copies of certain phrases in subsequent lines and maintained the same structure and rhyme scheme throughout. The copied elements served the same function in the accused work as in the original. Nevertheless, the Supreme Court acknowledged that the transformative purpose of parody had a “need to mimic an original to make its point,” and thus, warranted copying some exact elements. The question of the extent of the copying permissible to serve that function was the subject of the inquiry of the third statutory fair use factor. So too here.

Android did not merely incorporate the copyrighted work “as part of a broader work,” without any change to the purpose, message, or meaning of the underlying work. Android did not merely adopt the Java platform wholesale as part of a broader software platform without any changes. Instead, it integrated selected elements, namely declarations from 37 packages to interface with all new implementing code optimized for mobile smartphones and added entirely new Java packages written by Google itself. This enabled a purpose distinct from the desktop purpose of the copyrighted works — or so our jury could reasonably have found.

In light of the foregoing, our jury could reasonably have concluded that Google’s use of the declaring code and SSO of 37 API packages from the desktop platform work in a full-stack, open-source mobile operating system for smartphones was transformative.

The ruling goes on like this, over and over again pointing out that the jury's decision is not so crazy and has support in the law. And then it concludes with a big slap to Oracle, noting that it seems to be making completely inconsistent arguments:

Stepping back, it seems hard to reconcile Oracle’s current position with the one it took just as the trial was getting underway, namely, that fair use is an equitable rule of reason and each case requires its own balancing of factors. In its critique of the first proposed jury instructions on fair use..., Oracle argued that the Court’s draft characterization of the policy of fair use contravened the legislative history, and Oracle cited the following language from a Senate report on the 1976 Copyright Act (which language was repeated in the House Report):

Although the courts have considered and ruled upon the fair use doctrine over and over again, no real definition of the concept has ever emerged. Indeed, since the doctrine is an equitable rule of reason, no generally applicable definition is possible, and each case raising the question must be decided on its own facts.

.... The Court adopted Oracle’s proposed instruction in the next draft as well as in the final charge to the jury, stating: “Since the doctrine of fair use is an equitable rule of reason, no generally accepted definition is possible, and each case raising the question must be decided on its own facts”....

Now, Oracle argues instead that this case must be decided as a matter of law, and not “on its own facts.” Oracle argues that Google’s copying fails to resemble any of the statutory examples of fair use listed in the precatory language of Section 107, again contradicting its earlier position that “no generally applicable definition is possible.”

Once again, much of this seems more addressed to the appeals court than the parties. Unfortunately, last time around that didn't work, as the appeals court got it wrong. Now we'll have to wait and see what happens this time around.

Filed Under: apis, copyright, fair use, java, matter of law, william alsup
Companies: google, oracle

Oracle's Lead Lawyer Against Google Vents That The Ruling 'Killed' The GPL

from the but-that's-not-true dept

When the Federal Circuit Appeals Court (CAFC) initially made its nutty ruling saying that APIs are copyright-eligible subject matter, many in the copyright and tech world were not only shocked, but were tremendously worried about how the ruling would impact innovation and software development going forward -- while supporters on the other side brushed off such concerns.

Now that the second trial has found that, even if APIs are covered by copyright, Google's use of the Java APIs in Android was fair use, perhaps it's only fair that people on the losing side are lashing out in the same manner as people on the other side did after the CAFC ruling.

Annette Hurst, the lawyer who led the case on the Oracle side, posted her thoughts to LinkedIn, claiming that the ruling represents the "death of free software," and, more specifically, saying that the ruling "killed" the GPL (General Public License, even though at the trial one witness insisted it was the Gnu Public License). From reading her post, it appears that she either doesn't understand that software and APIs are not the same thing, or that she just doesn't care. The whole argument is strange, and starts off with a bizarre, and simply wrong, assertion that "no copyright expert" would have predicted this result:

The developer community may be celebrating today what it perceives as a victory in Oracle v. Google. Google won a verdict that an unauthorized, commercial, competitive, harmful use of software in billions of products is fair use. No copyright expert would have ever predicted such a use would be considered fair. Before celebrating, developers should take a closer look. Not only will creators everywhere suffer from this decision if it remains intact, but the free software movement itself now faces substantial jeopardy.

Except, of course, tons of copyright experts predicted exactly this result (and many more argued that APIs should not be subject to copyright at all). Famed copyright scholar Pam Samuelson has been writing extensively about the case, focusing both on why APIs should not be covered by copyright (and, why basically every other court has agreed) as well as why, even if it is covered, it's fair use. Hell, she even wrote a response to the Hurst piece, explaining why Hurst was wrong. It's weird for Hurst to take a position that actually seems at odds with a huge number of copyright experts, and then state that none would take the position that many did.

From there, she appears to misunderstand the point made by the other side in the very case she led:

While we don't know what ultimately swayed the jury, Google's narrative boiled down to this: because the Java APIs have been open, any use of them was justified and all licensing restrictions should be disregarded. In other words, if you offer your software on an open and free basis, any use is fair use.

If that narrative becomes the law of the land, you can kiss GPL goodbye.

Except she's exaggerating here and misrepresenting the key issues in the case. No one was arguing, as she implies, that any software that is described as "free and open" or that is using the GPL means that any use is fair. Again, she's conflating APIs with actual software. The ruling doesn't impact software the way she thinks it does because she doesn't seem to want to acknowledge that APIs are not software. They're just a structure -- a table of contents effectively.

No business trying to commercialize software with any element of open software can afford to ignore this verdict. Dual licensing models are very common and have long depended upon a delicate balance between free use and commercial use. Royalties from licensed commercial distribution fuel continued development and innovation of an open and free option. The balance depends upon adherence to the license restrictions in the open and free option. This jury's verdict suggests that such restrictions are now meaningless, since disregarding them is simply a matter of claiming "fair use."

This is simply not true. The case revolved around the fact that the API and its "declaring code" are fundamentally different from the actual source code within the operating system. It serves an entirely different purpose. Part of the reason why the use of the same API is considered fair use is because of that very nature of it: the API is more functional -- it's like a pointer or a reference, rather than an actual bit of code. It's only if you don't understand that the two things are different that this ruling leads to the problems that Hurst describes. A case with the same facts, but where straight up source code was copied would have a much tougher uphill battle on the fair use front.

Developers beware. You may think you got a win yesterday. But it's time to think about more than your desires to copy freely when you sit down at a keyboard.

Once again, this shows a rather unfortunate ignorance of how coding works. It's not about a desire to "copy freely." It's about building amazing and innovative services, and making use of APIs to increase interoperability, which increases value. Copying an API structure is also just much more about making developers comfortable in using new environments. You know, like how Oracle copied SQL from IBM. Because lots of people understood SELECT-FROM-WHERE and it made little sense to create a relational database that didn't use that structure. It's not about copying freely. It's about interoperability.

And, really, the idea that an Oracle lawyer is "concerned" about the future of the GPL is fairly laughable. Thankfully, many people have weighed in in the comments -- including plenty who are quite familiar with the GPL and software development to explain to Hurst why she's wrong. Somehow, I think she has some fairly strong reasons to ignore those responses.

Filed Under: annette hurst, apis, copyright, fair use, free software, gpl, software, source code
Companies: google, oracle

How Java's Inherent Verboseness May Mess Up Fair Use For APIs

from the this-whole-case-is-fucked-up dept

The latest round of the Oracle/Google API copyright lawsuit has been an attention grabber to say the least. There's plenty of absurdity to go around, but in reading through the coverage and commentary, it became clear that part of the problem is actually in the nature of Java as a statically typed, verbose language. To me, the crux of the case has been in the fact that non-technical people don't seem to get that software and APIs are different things. They don't get that an API is more like a map or a menu, rather than the actual stuff itself. The API is basically just explaining how to get information, not what the information itself actually is.

But this distinction is lost on people who aren't very technical. Sarah Jeong, whose coverage of this case on both Twitter and Motherboard has been phenomenal, wrote a great piece last week calling out this distinction:

The problem with Oracle v. Google is that everyone actually affected by the case knows what an API is, but the whole affair is being decided by people who don’t, from the normals in the jury box to the normals at the Supreme Court—which declined to hear the case in 2015, on the advice of the normals at the Solicitor General’s office, who perhaps did not grasp exactly how software works.

In fact, during the jury selection process, it appears that an effort was made to make sure no one even remotely technical got onto the jury. So much for a jury of your peers, right?

But, a further point drove home for me just how messed up this whole thing is -- along with the recognition that part of the problem is in just how verbose Java is. Last week, one of the witnesses in the case was a top Android programmer, Dan Bornstein, who was actually asked to write some code on a white board, to show what "declaring code" is, as compared to the actual implementation code. While no photos are allowed in the courtroom, EFF's Parker Higgins (who also has been known to guest post here on occasion), did his best to recreate what Bornstein drew:

Here's my artist's rendition of the Bornstein sketch. Not perfect, but his handwriting and drawing aren't better. pic.twitter.com/aNu8ZAyXMP

— Parker Higgins ☔ (@xor) May 13, 2016

In response to this, on Twitter, programmer Aviv Ovadya, showed what the same thing would look like in Python, rather than Java:

@xor Translated to Python. Usually Java's verboseness just makes code a pain to write; now it may also mess up law. pic.twitter.com/WzOmcyRwyU

— Aviv (@metaviv) May 14, 2016

And the even clearer, side-by-side version:

@sarahjeong @xor Actual side by side version of the Java vs. Python versions for the court whiteboarding pic.twitter.com/Dd58egcaF2

— Aviv (@metaviv) May 14, 2016

Python is a dynamically typed language, rather than statically typed, meaning that the declaring code is much more concise, and much more obviously a specification of what's needed, rather than code designed to do something directly. In the Java version, if you don't have a fair bit of experience with programming, the difference between the declaring code and the implementation is not that clear. It looks pretty similar. That's why it's probably no surprise that in asking the Supreme Court to reject hearing this case, the Solicitor General of the US wrote:

Nothing about the declaring code at issue here materially distinguishes it from other computer code

As we pointed out at the time, this is just wrong. The declaring code explains the interface for communicating with computer code. The implementation is actual computer code. They're not the same. But in Java... they look pretty similar because Java is so verbose, and requires much more detailed declaring code. In the Python version, the differences are much, much clearer, and you can see how the declaring code is basically just a specification for something you want, rather than a bit of creative coding to do something new.

And thus, what we're left with is the fact that, in part because of how Java works, the declaring code looks too much like regular code and that confuses the hell out of basically anyone who's not a programmer. Remember how, in the first version of this trial, Judge William Alsup first had to teach himself Java to understand why an API should not be covered by copyright? Unfortunately, the appeals court justices (and Supreme Court Justices) did no such thing, and couldn't understand the inherent difference here, sending the case back to Judge Alsup's courtroom.

And, now, even with it being "fact" that APIs are covered by copyright in certain cases in the 9th Circuit (hopefully other courts have a chance to fix this at some point soon...), we're still facing the same kind of argument.

Technically, this round for the trial is supposed to focus solely on whether or not Google's use of the Java APIs is "fair use" under copyright law. But that has made for some weird discussions in the trial, because you don't need fair use if there's no copyright in the first place. And since many people involved were operating under the (reasonable!) assumption that there was no copyright in the API, it's made for some weird discussions in the trial, where everyone has to dance around the copyrightability question. In fact, there's been some discussion between the judge and the two companies over whether or not the jury should even be informed about the results of the first case and the subsequent appeals process.

In the end, it's creating a very messy case, and a big part of that mess is because code is confusing to non-techie folks, and Java's inherent design appears to make it even more confusing -- which does not bode well for copyright and APIs going forward. And that could create a really big mess in the software world. Lots of people who dislike Java have claimed for a long time that it is inherently awful, in part because of how verbose it is. But perhaps they didn't realize that factor might wreck some important concepts in software development far beyond just Java programming itself.

Filed Under: apis, copyright, declaring code, java, languages, programming, python, verboseness
Companies: google, oracle

Stakes Are High In Oracle v. Google, But The Public Has Already Lost Big

from the there's-more-to-this-than-fair-use dept

Attorneys for the Oracle and Google companies presented opening statements this week in a high-stakes copyright case about the use of application-programming interfaces, or APIs. As Oracle eagerly noted, there are potentially billions of dollars on the line; accordingly, each side has brought "world-class attorneys," as Judge William Alsup noted to the jury. And while each company would prefer to spend their money elsewhere, these are businesses that can afford to spend years and untold resources in the courtroom.

Unfortunately, the same can't be said for the overwhelming majority of developers in the computer industry, whether they're hobbyist free software creators or even large companies. Regardless of the outcome of this fair use case, the fact that it proceeded to this stage at all casts a long legal shadow over the entire world of software development.

At issue is Google's use in its Android mobile operating system of Java API labels -- a category of code Google (and EFF) previously argued was not eligible for copyright. Judge Alsup, who demonstrated some proficiency with programming Java in the first leg of the case, came to the same conclusion. But then the Federal Circuit reversed that position two years ago, and when the Supreme Court declined to hear the issue, there was nowhere left to appeal. With this new decision on copyrightability handed down from above, Google and Oracle now proceed to litigate the question of whether Android's inclusion of the labels is a fair use.

If Google wins at this stage, it's tempting to declare the nightmare of that Federal Circuit opinion behind us. After all, fair use is a right -- and even if API labels are subject to copyright restrictions, those restrictions are not absolute. Google prevailing on fair use grounds would set a good precedent for the next developer of API-compatible software to argue that their use too is fair.

Tempting, but not quite right. After all, there is a real cost to defending fair use. It takes time, money, lawyers, and thanks to the outrageous penalties associated with copyright infringement, comes with a substantial risk. Beyond all those known costs, wedging a layer of copyright permissions culture into API compatibility comes with serious unknowable costs, too: how many developers will abandon ideas for competitive software because the legal risks are too great?

There's a reason people say that if you love fair use, you should give it a day off once in a while. Even the vital doctrine of fair use shouldn't be the only outlet for free speech. In many areas, an absence of copyright, or the use of permissive public licenses, can foster more creativity than fair use alone could. Sadly for now, in the world of software development it's the paradigm we have.

Reposted from the Electronic Frontier Foundation's Deeplinks Blog

Filed Under: api, apis, copyright, copyrightable subject matter, fair use, java, software
Companies: google, oracle

The Fight Over Copyrighting Klingon Heats Up, And Gets More Ridiculous

from the are-we-really-fighting-over-this? dept

Last year, we wrote about a somewhat speculative article by Charles Duan from Public Knowledge, connecting the ridiculous result of the Oracle/Google fight on the copyrightability of software APIs, to the idea of trying to claim copyright in a language, with a particular focus on Klingon, the made up language from the Star Trek universe. And, then, of course, back in March, that speculative hypothetical became much more real, when Paramount's lawsuit against a Star Trek fan film did, in fact, argue that Klingon was covered by copyright, and that the fan film violated that copyright.

A bunch of things have happened since then, as this mess careens towards trial, and we wanted to catch you up. First, the lawyers for the fan film, put together by Axanar Productions, challenged many of the claims made by Paramount in its amended complaint, noting that many of the things listed as copyright infringing, clearly were not -- including the language of Klingon.

The Klingon language... itself is an idea or a system, and is not copyrightable. As the Supreme Court held in the context of a system of bookkeeping, although copyright protects the author’s expression of the system, it does not prevent others from using the system. Baker v. Selden, 101 U.S. 99, 101 (1879). The mere allegation that Defendants used the Klingon language, without any allegation that Defendants copied Plaintiffs’ particular expression of that language, is therefore insufficient to state a claim for copyright infringement as to any protected element.

That filing similarly challenged the idea that costumes (such as "gold shirts") or geometric shapes (like "triangular medals on uniforms") were copyrightable. Oh, and also lots of things that clearly predate the Star Trek universe, like the idea of transporters ("have existed in science fiction since 1877") and warp drive ("have existed in science fiction as early as 1945").

Paramount Pictures, not surprisingly, disagreed on all of this, insisting that all of these things absolutely were legitimately covered by copyright. First, it argues (somewhat convincingly...) that the issue is not these individual items, but rather the entire collection of them, creating a "world" that is covered by copyright, and that the fan film is obviously creating a derivative work, which they claim infringes. But then Paramount Pictures decides to attack the claims that these individual things can't be covered by copyright anyway. On the question of copyright in Klingon, they actually argue that Axanar's argument "is absurd."

Language is part of dialogue, which represents one aspect of the Star Trek Copyrighted Works and may be considered (at a later point) in a substantial similarity analysis.... Defendants argue that the Klingon language is not copyrightable because it is a useful system... Again, this issue is not yet before the Court – and certainly is not an issue to be addressed on a motion to dismiss.

Moreover, this argument is absurd, since a language is only useful if it can be used to communicate with people, and there are no Klingons with whom to communicate. The Klingon language is wholly fictitious, original, and copyrightable, and Defendants’ incorporation of that language in their works will be part of the Court’s eventual substantial similarity analysis. Defendants’ use of the Klingon language in their works is simply further evidence of their infringement of Plaintiffs’ characters, since speaking this fictitious language is an aspect of their characters.

And then things got even more fun. A group called the Language Creation Society, represented by Marc Randazza, sought to file an amicus curiae (friend of the court) brief, which is well worth reading, in part because the section headings, along with a few key words, are in Klingon. For example, there's this: If you're wondering, the footnotes reveal the translation. The ending of the first paragraph would read as "it lacks reasons." The two words in the latter paragraph are translated as "pathetic" and "arrogant." The pronunciations are also included in the footnotes, but I'll let you explore those yourself. The full brief is worth reading as it lays out, in great detail, why Klingon cannot be covered by copyright. It goes through a bunch of legal reasons, with caselaw citations, and then also points out conceptually just how stupid this is:

To claim copyright in a language is to claim ownership over all possible thoughts and artistic expression that might employ that language. If not ownership, such a claim at least provides some support for the idea that the copyright owner could, at some point, simply pull the plug on any future development in the language. It is a breathtakingly vast legal assertion that encompasses particular expression that the claimed copyright owner, by definition, cannot even conceive of.

The filing also points out how silly the assertion above, by Paramount, that since there are no Klingons to communicate with, it's not a language and therefore is copyrightable:

First, this is a non-sequitur; a process or system need not be “useful” in order to preclude copyright protection, and Plaintiffs provide no authority to the contrary.

But more importantly, this is an insulting assertion. Many humans speak Klingon. The annual qep'a' involves singing and storytelling in Klingon. (See Exhibit 6.) People get married in Klingon. (See Exhibit 10.) Linguist d'Armond Speers even spent three years teaching his infant son to speak Klingon. (See Tara Bannow, “Local company creates Klingon dictionary,” MINNESOTA DAILY (Nov. 17, 2009), attached as Exhibit 12.) Speaking and writing in Klingon is not simply a matter of transposing words from a different language, either; it has an unusual grammatical structure that provides a different connotation than other languages....

And insult aside, Plaintiff’s contention is absurd. A language is not constrained to a given ethnic or racial group. By their logic, Ancient Greek is not “useful” because the Ancient Greeks are no longer with us, and the language has no native speakers, despite it being the original language of some of the seminal literary and philosophical works of the western world. Plaintiffs’ logic would seem to dictate that French is not “useful” if spoken by a native German.

Well, it probably won't surprise you to find out that Paramount Pictures and its pricey lawyers weren't too pleased about Randazza's/Language Creation Society's filing. They've filed an opposition. They argue (perhaps correctly), that the filing comes way too late, but also claim that the issue of the copyright in Klingon is "not before the court."

In its application and amicus brief, LCS is asking the Court for an advisory opinion on whether fictional languages are copyrightable. This is not at issue in the motion to dismiss. At the motion to dismiss stage, the Court will determine whether Plaintiffs have sufficiently alleged the existence of their Star Trek Copyrighted Works and whether Plaintiffs have alleged infringement by the Defendants. The Court has not been asked to perform a substantial similarity analysis at this stage of the proceeding, and especially not to determine the independent copyrightability of the Klingon language (or fictitious languages in general) outside of context of Star Trek works.

Instead, they argue again that Klingon is just one piece of the puzzle that they're using to show that Axanar is an infringing work. But, of course, that makes no sense. Because they were the ones who started this off by claiming that Klingon was covered by its copyright. And if Klingon is not copyrightable, then they can't make use of it as an example of how Axanar is infringing.

Meanwhile, Axanar Productions then hit back at Paramount Pictures in a new filing on Friday, claiming that in its opposition to the Language Creators' brief, it "raised new arguments."

First, while Plaintiffs now argue that the Klingon language is “merely one aspect of the Star Trek Copyrighted Works” and that Defendants’ use of Klingon is “further evidence of their infringement of Plaintiffs’ characters” (Dkt. 38 at 3-4), in the First Amended Complaint (“FAC”) Plaintiffs do not limit their allegations in this way. In the FAC, Plaintiffs claim ownership over “Klingons” as a race (FAC at 12) and over the appearance of Klingons (FAC at 13-14), and they claim separately to own the “Klingon language” (FAC at 32). In fact, the Klingon language is listed as a “Star Trek Copyrighted Work” according to the chart in the FAC. Id. Plaintiffs are hard-pressed to link their claim to the Klingon language to an actual character when their FAC does not identify a single specific Klingon character, let alone any character they claim Defendants have infringed through using the Klingon language.

They also point out that the question of whether or not Klingon is covered by copyright is pretty important in establishing whether or not Paramount has a legitimate claim:

Indeed, like recipes in a cookbook, while the Klingon Dictionary may be protected from wholesale copying, the individual Klingon words contained therein and expression flowing from the Klingon language system are simply not protected. This Court should decline to allow Plaintiffs to stifle expression in Klingon when this matter can be resolved now as matter of law.

And, yes, it's amazing that a copyright lawsuit has resulted in someone begging the court not to "allow Plaintiffs to stifle expression in Klingon." What a world we live in.

The Axanar filing also accuses Paramount of shifting standards when convenient:

Plaintiffs’ Opposition to the Motion claims that substantial similarity analysis is “unnecessary” here. Opp. (Dkt. 31) at 11:7-9. But now, Plaintiffs are reversing course and suddenly claiming that the individual works they alleged in the FAC are just pieces for a broader substantial similarity analysis. Plaintiffs cannot invoke the substantial similarity test only when convenient, and cannot complain about parsing out Plaintiffs’ claim to the Klingon language when their FAC does just that. FAC at 32. Further, the FAC remains unclear about (1) which episodes and films that Plaintiffs claim to own are at issue here (rendering it impossible to even begin to engage in any substantial similarity analysis), and (2) how the Court could engage in a substantial similarity analysis with respect to the Potential Fan Film when it has not yet been made.

Needless to say, there's likely much more to come on all of this, and I imagine that it will continue to be quite entertaining. That said, while the larger issue may seem silly, the underlying issues here are of extreme importance. As in the Oracle/Google case, allowing copyright over something as simple as instructions or the concept of a language, represents a massive expansion of copyright law in a manner that clearly stifles both innovation and expression. We should be quite worried when courts are willing to allow such absurdities.

Filed Under: apis, copyright, fan films, klingon, languages, star trek
Companies: axanar productions, cbs, paramount pictures

Can't Make This Up: Paramount Says Star Trek Fan Flick Violates Copyright On Klingon And 'Uniform With Gold Stars'

from the make-it-stop dept

Let's go back just a few months to remind you about two stories that seem fairly unrelated.

1. Story one: at the very end of last year, we wrote about the ridiculousness of CBS and Paramount suing the makers of a Star Trek fan film on the basis of that fan film actually looking like it was going to be good. The key issue, not surprisingly, was about money. Because this fan film had raised over $1 million from crowdfunding, suddenly it must somehow be illegal.
2. Story two: a few months earlier, in trying to better explain to people just how crazy CAFC's ruling regarding copyrighting application programming interfaces (APIs) was, we discussed Charles Duan's excellent argument that noted that if such a ruling stood, merely using Klingon could be copyright infringement. The basic argument was that an API is a "created language." But could you imagine a situation in which the creators of such a language would claim that merely speaking it was infringement.

Well, welcome back to the present, in which Paramount and CBS's lawyers are now claiming that part of the reason why the fan film infringes is because of its use of Klingon. As first noted by Eriq Gardner at THR, Esq., the lawyers for the fan film had responded to the original lawsuit by pointing out that nothing in the lawsuit showed any specific thing that they were infringing on. And that's a problem, because of that old idea/expression dichotomy. You're only supposed to be able to infringe by copying the actual "expression," not just the general idea. And, thus, we get the amended complaint, in which the lawyers for Paramount and CBS desperately scramble to try to come up with just about anything that they can claim was infringed upon. And thus, we get... Klingon. The amended complaint basically argues that anything similar to Star Trek is copyright infringement, including characters, races, places, costumes, plot points, spaceships, logos and... language. Yes, including Klingon: But, that's hardly all. Paramount and CBS literally claim that using any of the following terms are infringing: "beaming up," "transporters," "warp drive," "stardate" or "starfleet" or "phasers." Really.

To claim making use of words or phrases like that, which certainly remind people of Star Trek, is by itself infringing seems crazy. Ditto for claiming that merely using Klingon is somehow infringing. But, really, when you're throwing everything at the wall, you're going to throw some really stupid shit. How about this one: it's infringing because it has the same "mood and theme" and that's as a "science fiction action adventure." Even things like the fact that the Klingon logo is similar is called out: And there are a lot of complaints about costume similarities, starting with a "uniform with a gold shirt" with a "particular type of collar": Or uniforms with a "cowl neck." Or, "triangular medals on uniforms." Really. Believe it or not there's a lot more in there. I'm just highlighting a few. And a bunch of these it's difficult to believe are actually protected by copyright. General similarities in "mood and theme" are nowhere near copyrightable. Costumes, which make up a bunch of the claims, are (as we've discussed in the past) considered by the US Copyright Office as "useful articles" and not subject to copyright protection.

Clearly, the lawyers at Paramount and CBS are trying to argue that by copying many of these non-copyrightable elements, all together, that somehow magically makes it copyright infringement. And, you never know. Courts have been persuaded by these kinds of arguments in the past. And, of course, no one denies that this is clearly an attempt to build a "Star Trek" fan film. So it's obviously based on Star Trek. But there's a real issue about whether or not there really is infringement here, and by throwing absolutely everything into the filing, even things that are clearly not even remotely covered by copyright, it really makes Paramount/CBS look extremely desperate.

Filed Under: apis, copyright, costumes, fan films, klingon, languages, star trek, uniforms
Companies: cbs, paramount

Appeals Court: No You Can't Copyright Yoga

from the what's-that-got-to-do-with-software dept

We first wrote about this issue more than a decade ago, but there's been a ridiculous attempt by some yoga instructors to use intellectual property to lock up certain yoga poses. While most of the focus has been on copyright, other attempts have used other forms of intellectual property as well. But the most watched legal dispute was the one brought by Bikram Yoga and Bikram Choudhury against Evolution Yoga... and the 9th Circuit appeals court has now made it abundantly clear: you can't copyright yoga.

Though Choudhury emphasizes the aesthetic attributes of the Sequence’s “graceful flow,” at bottom, the Sequence is an idea, process, or system designed to improve health. Copyright protects only the expression of this idea—the words and pictures used to describe the Sequence—and not the idea of the Sequence itself. Because the Sequence is an unprotectible idea, it is also ineligible for copyright protection as a “compilation” or “choreographic work.”

In other words, the idea/expression dichotomy actually matters. And it matters in important ways:

Following Baker, and recognizing this vital distinction between ideas and expression, courts have routinely held that the copyright for a work describing how to perform a process does not extend to the process itself.

Um... that seems rather important in that question over the question on whether or not APIs are covered by copyright. Since an API is just describing how to perform a process, it does not mean the process itself is covered by copyright.

Bikram tried to argue that copyright should be allowed for his poses because they are beautiful, but as the court points out, that's got nothing to do with anything:

Choudhury contends that the Sequence’s arrangement of postures is “particularly beautiful and graceful.” But beauty is not a basis for copyright protection. The performance of many ideas, systems, or processes may be beautiful: a surgeon’s intricate movements, a book-keeper’s careful notations, or a baker’s kneading might each possess a certain grace for at least some viewers. Indeed, from Vermeer’s milkmaid to Lewis Hine’s power house mechanic, the individual engrossed in a process has long attracted artistic attention. But the beauty of the process does not permit one who describes it to gain, through copyright, the monopolistic power to exclude all others from practicing it. This is true even where, as here, the process was conceived with at least some aesthetic considerations in mind. Just as some steps in a recipe may reflect no more than the author’s belief that a particular ingredient is beautiful or that a particular cooking technique is impressive to watch and empowering to practice, some elements in Choudhury’s Sequence may reflect his aesthetic preferences. Yet just like the recipe, the Sequence remains unprotectible as a process the design of which primarily reflects function, not expression.

Again, this seems to suggest (yet again) how wrong the CAFC got the decision over APIs.

Separately, the court rejects Bikram's attempt to claim that his yoga sequence is a form of choreography which is (somewhat ridiculously) copyrightable.

The Sequence is not copyrightable as a choreographic work for the same reason that it is not copyrightable as a compilation: it is an idea, process, or system to which copyright protection may “[i]n no case” extend.

This also offers the court an opportunity to explain how important the idea/expression dichotomy is, and the problems that arise when courts (like CAFC) get it totally wrong.

Our day-to-day lives consist of many routinized physical movements, from brushing one’s teeth to pushing a lawnmower to shaking a Polaroid picture, that could be (and, in two of the preceding examples, have been) characterized as forms of dance. Without a proper understanding of the idea/expression dichotomy, one might obtain monopoly rights over these functional physical sequences by describing them in a tangible medium of expression and labeling them choreographic works. The idea/expression dichotomy thus ensures that expansive interpretations of the categories enumerated as proper subjects of copyright will, “[i]n no case,” extend copyright protection beyond its constitutional limits.

It's good to see the court get this right and to make it clear that there is no copyright in yoga poses. But it also highlights just how bad (and wrong) the decision in the Oracle v. Google case was by CAFC.

Filed Under: 9th circuit, apis, bikram choudhury, copyright, expression, idea, idea expression dichotomy, yoga
Companies: bikram yoga, evolution yoga

Yes, The Appeals Court Got Basically Everything Wrong In Deciding API's Are Covered By Copyright

from the fundamentally-not-understanding-that-apis-are-not-software dept

Copyright expert and professor Pam Samuelson, one of the most respected scholars of copyright law, has published a short paper explaining what she calls the "three fundamental flaws in CAFC's Oracle v. Google decision." As you may recall, that ruling was a complete disaster, overturning a lower court decision that noted that application programming interfaces (APIs) are not copyrightable, because Section 102 of the Copyright Act pretty clearly says that:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

But CAFC got super confused, and basically ignored 102 while misunderstanding what an API actually is. After the White House itself got confused, the Supreme Court refused to hear the case. This means that the CAFC ruling stays in place, despite it being at odds with lots of other courts. And this might not be a huge problem, since most copyright cases won't go to CAFC. The only reason the Oracle case went to CAFC was because it started out as a patent case, and CAFC gets all patent appeals, even if the appeal has nothing to do with patents. Except... of course, now there's incentive to toss in a bogus patent complaint along with a questionable "interface copyright" complaint just to get it into CAFC's jurisdiction.

Samuelson's paper is a good read (and we'll get to it), but I'd actually argue it's a bit too tame, and leaves out the really fundamental flaw in the CAFC ruling and in the White House brief: these non-programmers don't realize that an API is not software. Almost all of the mistakes stem from this simple fact. They assume that an API is software. And this is highlighted very clearly in the CAFC ruling where they quote Pam Samuelson out of context and then completely miss what she's actually saying. Here's from that ruling:

Google argues that “[a]fter Sega, developers could no longer hope to protect [software] interfaces by copyright . . . Sega signaled that the only reliable means for protecting the functional requirements for achieving interoperability was by patenting them.” ... (quoting Pamela Samuelson, Are Patents on Interfaces Impeding Interoperability...). And, Google relies heavily on articles written by Professor Pamela Samuelson, who has argued that “it would be best for a commission of computer program experts to draft a new form of intellectual property law for machine-readable programs.” Pamela Samuelson, CONTU Revisited: The Case Against Copyright Protection for Computer Programs in Machine-Readable Form.... Professor Samuelson has more recently argued that “Altai and Sega contributed to the eventual shift away from claims of copyright in program interfaces and toward reliance on patent protection. Patent protection also became more plausible and attractive as the courts became more receptive to software patents.”...

Although Google, and the authority on which it relies, seem to suggest that software is or should be entitled to protection only under patent law—not copyright law— several commentators have recently argued the exact opposite. See Technology Quarterly, Stalking Trolls, ECONOMIST, Mar. 8, 2014, http://www.economist. com/news/technology-quarterly/21598321-intellectualproperty- after-being-blamed-stymying-innovationamerica- vague (“[M]any innovators have argued that the electronics and software industries would flourish if companies trying to bring new technology (software innovations included) to market did not have to worry about being sued for infringing thousands of absurd patents at every turn. A perfectly adequate means of protecting and rewarding software developers for their ingenuity has existed for over 300 years. It is called copyright.”); Timothy B. Lee, Will the Supreme Court save us from software patents?, WASH. POST, Feb. 26, 2014, 1:13 PM, http://www.washingtonpost.com/blogs/the-switch/wp/ 2014/02/26/will-the-supreme-court-save-us-from-softwarepatents/ (“If you write a book or a song, you can get copyright protection for it. If you invent a new pill or a better mousetrap, you can get a patent on it. But for the last two decades, software has had the distinction of being potentially eligible for both copyright and patent protection. Critics say that’s a mistake. They argue that the complex and expensive patent system is a terrible fit for the fast-moving software industry. And they argue that patent protection is unnecessary because software innovators already have copyright protection available.”).

But this is just wrong. If you actually look at Samuelson's quotes, she's talking about interfaces not software. Notice in every quote she is not actually talking about the software itself, but "interfaces," "functional requirements" and "program interfaces." The absolute worst is the first quote, where Samuelson writes "interfaces" and CAFC inserts a "[software]" to imply that it's the same thing. It's not. The two paragraphs are not actually at odds. It is entirely reasonable to argue that interfaces shouldn't be protected by copyright (thanks to Section 102) and that software should not be patentable.

It only looks like they're disagreeing if you're confused and you think that an API is the same thing as the software itself. But that's like saying a recipe is the same as a meal or that a dictionary is the same as a novel that uses those words. It's not the same thing.

So while Samuelson's new paper is great, I still feel like she holds back on that key issue, which is so just blatantly wrong, and seems to underline why non-technical people (including the judges in this case) got so confused. Of course software is copyrightable. The argument is over whether or not an API necessary for interoperability is copyrightable. And, as Samuelson's paper notes, it had been widely accepted prior to the CAFC ruling that the answer is no because they're "procedures, processes, systems and methods" under Section 102.

A second flaw was the CAFC’s overbroad view of the extent to which the “structure, sequence and organization” (SSO) of computer programs are protectable by copyright law. During the 1980s, some courts regarded program SSO as having a broad scope of protection under copyright law. But in the last two and a half decades, courts and commentators have recognized that the SSO concept is too imprecise and misleading to be useful in software copyright cases. The SSO concept does not help courts make appropriate distinctions between protectable and unprotectable structural elements of programs. Procedures, processes, systems, and methods of operation, almost by definition, contribute to the SSO of programs that embody them. However, this does not make those elements protectable by copyright. The design of many program structures, including APIs, is inherently functional and aimed at achieving technical goals of efficiency. This disqualifies them as protectable expression under U.S. law.

Anyway, the rest of the paper is a good read, and hopefully it means that eventually this issue will get back to the Supreme Court -- and one hopes, at that time, someone can at least get through to them that an API is not software.

Filed Under: api, apis, cafc, copyright, copyrightable subject matter, pam samuelson, software
Companies: google, oracle