Confused Jury Says Google Infringed On Oracle's Copyright, Sorta, But Maybe Not

from the if-it-was-fair-use,-it-wasn't-infringement dept

There was some indication last week that the jury in the Oracle/Google lawsuit was having trouble coming to agreement, and it appears that despite some effort to try to fix that, in the end the jury remained deadlocked on a bunch of issues. However, it did decide that Google infringed on Oracle's copyright in the Java APIs it used -- but what the jury punted on was whether or not those uses were allowed via fair use. This seems a bit odd, since fair use, despite supposedly being a defense, still means that there was no infringement. So, basically the jury said that Google may have infringed... which is pretty useless for a jury. Separately, the jury rejected the idea that Google infringed on the documentation of the APIs. It also found that Google did not infringe on the comments for some of the code, but did infringe on using rangeCheck in two files. That said, the jury again punted on whether or not the use was de minimis (which, again, would mean non-infringement).

According to The Verge (who is in the court room), the jury also wasn't buying the claim that Google relied on Sun's statements saying that Google's use was okay. The jury's main problem with Google's claim here wasn't that Sun hadn't made clear that the use was acceptable. It was that there wasn't much evidence that Google actually relied on such claims from Sun. I can understand why the jury might claim this, but I wonder why it would matter. Given that Sun made clear that Google's use was acceptable, in what world could you later turn around and claim that its use was unacceptable?

Either way, the fact that the jury couldn't come to an answer on the fair use/de minimis questions effectively sinks the entire process. Google immediately asked the judge to declare a mistrial, and the judge has supposedly asked both companies to prepare arguments over whether or not a mistrial should be declared, so this is far from over.

Filed Under: api, de minimis, fair use, java
Companies: google, oracle, sun

Fight Is On Between Oracle And Google Over Java API Copyrights

from the shouldn't-have-gotten-this-far dept

Last summer, we noted that there was an interesting "sideshow" in the patent dispute between Oracle and Google -- a question of whether or not Java's APIs are covered by copyright. That "sideshow" has become the main attraction now that the trial has started and many of the patent claims have been kicked out.

Oracle has been quite public with its argument (pdf), which is mostly based on taking snippets from Google emails that suggest a need to license Java. The favorite of the bunch is this one:

They also point to some snippets of code that do appeared to be copied:


If you just see that side of it, you might be convinced, but the details suggest a much less convincing story. First off, there are serious concerns about whether or not an API even can be covered by copyright. In fact, before Sun was acquired by Oracle, Sun's own CTO had said that "internet specifications are not protectable under copyright," which (you might think) gives Google an implied go ahead to make use of the API. Furthermore, many of the email snippets that Oracle presents are taken out of context -- they show little snippets of big emails and pull from very very different time periods -- ranging from 2005 to 2010, when different factors applied. Oracle also scrubbed a blog from former Sun CEO Jonathan Schwartz in which he warmly welcomed Google to the Java family when the company launched Android.

Perhaps more damning: Larry Ellison himself in 2009 at the JavaOne event spoke about Google's Android development and how they were contributing code back to Java. Ellison himself was put on the stand and appeared to contradict his own depositions when it came time to discuss the specifics of the copyright. That can't go over well. Not only that, but he stumbled, and claimed he was "not sure" when asked specific questions:

On cross-examination, Google came out firing and the room got tense quickly. “Do you understand that no one owns the Java programming language?” lead counsel Robert Van Nest asked.

Ellison began a longer answer, but Judge William Alsup interrupted him and said it was a “yes or no” question. Finally Ellison said, “I’m not sure.”

“And anyone can use it without royalty?” Van Nest followed up.

“I’m not sure,” Ellison said again.

Then Van Nest showed a video of Ellison receiving the same question on a deposition video and answering “That’s correct” to both.

Oracle's response, of course, will be that it just meant for developing apps, not for using the API -- but its other statements are a lot less clear on that. Either way, it seems pretty clear that Sun gave an implied open license to these things, so to come back now and insist otherwise is pretty questionable. Furthermore, there still are questions as to whether or not an API can actually be covered by copyright at all.

Separately, Oracle keeps talking about just how much work it is to create APIs, and even points to some Google statements about the difficulty of doing so. That's smoke and mirrors. Difficulty has no bearing on copyright law. It's kind of surprising that Oracle's lawyers would even bring it up, as "sweat of the brow" arguments won't get very far. Hell, even if it biases a jury, it would get rejected on appeal. It seems like Oracle's strategy here is just to confuse the jury and go for guilty by association because they're going to have trouble showing actual guilt.

As for the specific code snippets shown above, those a few lines out of 50,000 or so files. Under copyright there's a defense known as de minimis copying, if you're just found to have copied a very tiny portion of something. It seems like that might apply here as well.

Also, you may have heard stories about the results of this trial potentially being worth billions of dollars or something, but that was before most of the patents got thrown out. The patents left over aren't worth very much at all, and the end result means that if Oracle wins, it'll likely get less than $100 million. That's still a significant sum, but it's a lot less than what Oracle had hoped to get in this lawsuit.

In the end, as it seemed from the beginning, Oracle's case looks pretty weak (and getting weaker).

Filed Under: api, copying, de minimis, java, larry ellison
Companies: google, oracle, sun

Spotify Finally Becomes A True Platform: Now Let's See Some Innovation

from the build-in-cwf+rtb dept

Nearly two years ago, Spotify first hinted at its desire to set itself up as a platform that others could build things on top of. And it's finally become a reality. This could actually be quite cool. Just a couple months ago, we were pointing out that just "putting radio on the internet" isn't that cool, but that we need killer apps for music. Spotify as a platform will hopefully make it easier for those killer apps to happen. The current crop of apps that they launched with are pretty ordinary, but I'm excited to think what comes next. Things I'd love to see: Turntable.fm (still the most addictive and coolest "social music" service out there) integrated directly into Spotify) as well as integration with things like TopSpin or Bandcamp. Right now there are options to do ticketsales, but what if you could build in ways to let people buy merch... or, better yet, connect with the artist directly via Spotify? And those are the obvious ones. The real killer app is probably going to take us all entirely by surprise. This is, by the way, yet another reason that short-sighted artists and labels are going to regret dropping out of Spotify. You have to be where the killer apps are or you're going to get left behind.

Filed Under: api, apps, innovation, music, platform
Companies: spotify

Twitter Wishes 4.5 Million Osama Bin Laden-Related Tweets Into Their API Cornfield

from the tweets-or-it-didn't-happen dept

Considering Twitter was instrumental in breaking the story of Osama Bin Laden's death, it seems somewhat strange that they would also be instrumental in limiting access to one of the biggest stories of 2011, if not the decade. (Of course, we're barely into this decade so we probably shouldn't be building these "best of" lists quite yet...) At the center of this unfortunate situation is a dataset constructed from public tweets using either "osama" or "bin laden," which was compiled using Twitter's own API.

Shortly after hearing of Bin Laden's unexpected mortal coil shuffling, Rob Domanski, who blogs as The Nerfherder, was informed of an archive of Osama Bin Laden-related tweets, all packaged up in handy XML format for use with DiscoverText software:

The datafiles were samples taken from live feed Twitter imports starting shortly after the announcement that Osama bin Laden’s death.

• Twitter searches for "bin laden" (647,585 documents, 505 MB)
• Twitter searches for "osama" (586,665 documents, 451 MB)

This was all for research purposes, however Twitter quickly shut down the project citing their Terms of Service (TOS) Agreement.

Stuart Shulman of DiscoverText had compiled the documents "using an authorized connection to Twitter via their API" which is apparently a violation of Twitter's API Terms of Service. He received an email from Twitter asking him to remove the datasets:

I'm writing about Twitter data being offered for sale on DiscoverText. Scraping the Twitter service is prohibited by our site Terms of Service, and furthermore, resyndicating data obtained through the Twitter API is prohibited by section I.4.a of our API Terms of Service (http://dev.twitter.com/pages/api_terms).

As such, we request you remove the datasets listed at http://discovertext.com/osamabinladen.aspx and any other datasets containing Tweets offered on your site.

Shulman responded:

Let’s be clear. We have never sold a Tweet. The data collected through the Twitter API and shared through our system is the same publicly available data other users capture with screenshots and share on blogs, Facebook or Twitter itself. Nonetheless, the datasets we have assembled and similar samples are being taken temporarily off the Web site pending a resolution of this issue with Twitter.

Well, "temporarily" has turned into "indefinitely." As of June 1st, Shulman's dataset contained 4.5 million Osama Bin Laden-related tweets, all of which can only be marveled at as a REALLY BIG NUMBER but not shared in any usable fashion thanks to Twitter's complaint.

If it's just a "policy first" decision on Twitter's part, it seems a little short-sighted. This information was (and is) of great interest to people worldwide. Perhaps some sort of warning could have been issued instead of a full takedown, thus allowing Twitter to assert its position on API usage without locking up the dataset. Once the dataset already exists, why block it? It's disheartening to see something with as much potential as Shulman's project getting thrown under the TOS bus.

Filed Under: api, data, information
Companies: twitter

Vevo Doesn't Put Ads In YouTube API, Gets Upset When Music Streaming Startup Uses That Fact

from the umm... dept

I actually had decently high hopes for Vevo, the partnership between Universal Music and YouTube to create a website for official music videos (currently from three of the four major record labels). I mean, I always figured that eventually the labels would screw stuff up, but I thought it actually had a shot at maybe being useful. The fact that Universal put Rio Caraeff in charge seemed like a good sign as well, since Caraeff seemed like the sort of music industry exec who understood the new marketplace for music, and wasn't encumbered with the "old ways" of doing things. But rather than a useful site, Vevo has basically been a cookie cutter version of what you would do if the record labels created their own YouTube. That is, it took none of the good parts of YouTube. Hell, it didn't even take the ability to handle a lot of traffic. For the first few days after it launched, Vevo just didn't work at all.

Its latest screwup was that it didn't include its preroll ads in the YouTube API, meaning that others who used the API could access and repurpose Vevo content without the ads, and even show the content outside the US (which Vevo currently does not allow). It didn't take long for one enterprising startup, Muziic, to do exactly that. Muziic has received some attention for basically using the YouTube API to create an iTunes-like experience out of YouTube videos (it also gets attention for being founded by a 16-year old). Muziic sent out an announcement this week about how it was using the YouTube API to add Vevo content, meaning you could access Vevo videos without the preroll ads and outside the US.

Vevo's first response? To send a cease and desist. At the very least, it wasn't a legal nastygram, but a more friendly cease & desist sent by Caraeff himself. But "cease" what? Muziic was using the API as designed, and even though Caraeff admits that Vevo is quickly scrambling to change the API, he still says Muziic needs to cease from using the Vevo logo or referencing the company's name. But Muziic used the name in an accurate and descriptive manner. It accurately noted that it was now offering Vevo content -- without ads and outside the US -- all legally via the use of the API provided by YouTube/Vevo itself.

Muziic's co-founder responded to Caraeff's email over at Hypebot, saying that he "was as shocked as anyone when I realized there were not yet any "pre-roll" advertisements for Vevo content in the API," but since it was how the company set up the API, it seems perfectly reasonable to use it that way. He also notes that he had reached out to Vevo prior to this to try to work out an arrangement with the company and got no response.

Filed Under: api, cease and desist, copyright, music
Companies: muziic, vevo

Google Blocking Set Top Boxes From Showing YouTube Unless They Pay Up?

from the evil-is-as-evil-does dept

I'm wondering if there's more to this, because it seems rather "un-Google-like." The makers of a set top box that can display internet content are complaining that Google is blocking them from displaying YouTube content, unless they agree to "partner" and commit to buying lots of ads (the amount is in dispute). If this sounds quite a bit like the ongoing battle between Hulu and Boxee, you might be right. However, in that case, at least you could sort of understand the (misguided) thinking behind it, since Hulu is owned by the colossally short-sighted content companies. But what's Google's excuse? If all these set top boxes are really doing is accessing free internet content and formatting it better for a TV, why stop it? They're really no different than accessing content via a computer and a browser -- it's just that the "computer" is a set top box and the "browser" is formatted for a television. That shouldn't require a special agreement, or any sort of ad buy commitment. Update: Received a confused and angry email from YouTube PR linking us to the very Wired article we linked to and demanding we add their PR statement (which is already in the Wired article). However, it does not actually answer the questions raised or change the point of this post. The fact that YouTube restricts set tops from accessing the content still does not make sense.

Filed Under: api, blocking, set top boxes, tv, video, youtube
Companies: google, youtube

Can You Copyright Movie Times?

from the and-if-you-could,-why-would-you? dept

One of our readers, Jay Anderson, writes in to let us know that he was working on a useful little app to let people put in their zip code, find local movies, and click through to buy tickets. In doing so, he found an undocumented API on a major site that provided all the relevant info, and linked back to MovieShowtimes.com, a site owned by West World Media. Anderson contacted the site to find out if it had some sort of affiliate program since it was reasonable to assume the site would be happy to gain some free traffic. No such luck. Instead, he got back a threatening letter, warning him that he was opening himself up to copyright infringement damages that could be upwards of $600,000 per month.

You need to know it is unlawful and a violation of our copyright and intellectual property rights for you to build a system that obtains our content from any source other than to obtain an expressed license from West World Media for legal usage of our content. Each violation of our Intellectual property rights allows us to collect damages of up to $150,000 per infringement. This would equate in liquid damages of over $600,000 per month if you violate our rights.

Anderson responded, asking the company how factual information (such as movie times) could be covered by copyright, and the company responded:

"It is not our responsibility or duty to explain complex US Intellectual Property rights law, we however enjoy many protections from them. I suggest you hire an IP attorney to explain it to you. From your response, it seems to me you have no intentions of moving forward in a legal manner. We closely monitor any and all usage of our content and if we discover your unlawful usage of it, we will exercise our rights to their fullest extent of the law."

Now, obviously, the company makes its money by licensing its database of showtimes to certain websites, but that information is factual, and it's difficult to see how the company could hold a copyright on it (at least in the US, where there's no real "database right" -- elsewhere... perhaps a different story). There's also no creative element in merely listing showtimes, and it's hard to see how they would possibly be covered by copyright. If the problem is that the company is upset that its business model can't handle other people sending it traffic, that's a business model problem, not a copyright problem. Time to redesign the business model to take a cut of sales, rather than to rely on artificial copyrights. Unfortunately, though, it doesn't stop a company from making such threats...

Separately, this reminds me of the fact that, just a few months ago, we were talking about how the movie times in newspapers were apparently paid advertisements by the theaters themselves. So, this seems like an odd switch as well: newspapers get paid for movie listings, but websites have to pay for them? How does that work?

Filed Under: api, copyright, movie times, services
Companies: movieshowtimes.com, west world media

The Guardian Follows The NY Times In Making News A Platform

from the good-job dept

A bunch of folks have been sending in the wonderful news that the Guardian, in the UK, has opened up an API and is sharing data in such a way that others can build programs on top of the news. This is fantastic -- and follows on a similar move last month by the NY Times. It appears that both the NY Times and the Guardian really are pushing the boundaries of recognizing that being an online newspaper these days needs to be about a lot more than delivering the news.

Perhaps even more interesting (though, getting much less attention) is the companion bit of news from some editors at the Guardian -- who are pointing out that they hope and pray each day that the NY Times gives into temptation and starts trying to charge for news... because it will create a huge opening for the Guardian to create a much larger online audience. This is what plenty of people have been pointing out for years: if clueless newspaper execs decide to start charging for news, it just opens the door wide for smarter news organizations to stay free and accumulate a much larger audience.

Filed Under: api, news, newspapers, platform
Companies: ny times, the guardian

NY Times Turning News Into A Platform

from the smart dept

For years, we've been big fans of the concept of having newspapers start becoming platforms, rather than monolithic "news delivering" services. Over the past year or so, a group of digitally savvy folks at the NY Times have shown one way that can work. Their latest move? To turn the NY Times news articles into a true platform. They've released an API for news, allowing others to actually build useful tools on top of the NY Times' news articles. Contrast that to, say, GateHouse Media, which recently sued the NY Times for trying to build useful tools on top of GateHouse's content.

Of course, just because there are some folks on the digital side who "get it" at the NY Times, it doesn't mean management has quite figured things out yet. At the same time as releasing this API, the paper's Executive Editor, Bill Keller is talking about trying to lock up their content and charge people for it, again. Yes, the newspaper needs new and innovative business models, but by now it should know that trying to charge for such content simply isn't a sustainable model. There's too much competition out there (which the NY Times discovered already when it tried and failed to charge for content a few years back). There are things that the paper can charge for -- but basic online content isn't one that will be successful.

Filed Under: api, news, platform
Companies: ny times

NY Times Starting To Recognize That Data Is News

from the all-the-data-that's-fit-to-release dept

Last year, we pointed out that, after quite a slow (and, at times, backwards looking) start, it appeared that the NY Times was finally figuring out how to truly embrace the web. That meant more than just putting its newspaper online, but taking advantage of the unique opportunities opened up by the web. However, there was still plenty of room for improvement, but it appears that the NY Times continues to move in that direction. Two years ago, we wrote about how newspapers should start freeing up their data via APIs so that others could make useful applications out of it. News organizations often have a tremendous amount of useful data that others might not have access to. Putting it to good use by opening up an API would be a truly valuable service.

And that's exactly what the NY Times appears to be doing, if only on a limited scale (for now). It's set up an API for campaign finance data, allowing anyone to build useful tools or visualizations on top of it. And, that's not all, they're also getting ready to release an API for movie reviews. In other words, the NY Times is definitely recognizing the value in not just freeing up their stories, but making core underlying data totally accessible and useful.

Filed Under: api, data, news
Companies: new york times