What did I say two years ago . The result of the first trial made absolutely no sense (the law is the law). It was pretty clear that Oracle had a good case on this up the ladder.
Now well have to wait a while for them to make peace and Google to pay up. This will mean all android applications will need to be rebuilt and tested after Google is forced to be put back in line with their java bastard.
What did I say two years ago . The result of the first trial made absolutely no sense (the law is the law). It was pretty clear that Oracle had a good case on this up the ladder.
Now well have to wait a while for them to make peace and Google to pay up. This will mean all android applications will need to be rebuilt and tested after Google is forced to be put back in line with their java bastard.
If the decision is in Google's favor you will decide it was unjust and if it isn't you will decide it is the best thing evarrr.
I am an Android user but if Android becomes unusable due to Google's changes (to me, no snarky comments please) or banned or whatever wet dream many people are having I'll switch to an iPhone instantly. No real sweat off my back.
Is there anyone here who isn't salivating to the point of dehydration over the possible outcome of this trial who isn't emotionally invested towards or against a company who can actually explain this clearly and concisely for a layman. Aside from this forum all others (The Verge, ars, and a few lesser sites) seem to deem this a bad decision by the appeals court. Can someone explain without vitriol or circle jerkery exactly how this is in fact not a bad decision?
Thank you in advance.
Either way, I don't really care. I like iOS 7 enough and after falling in love with my macbook I may just go all in Apple after all....and eat crow amongst my friends. Lol
If the decision is in Google's favor you will decide it was unjust and if it isn't you will decide it is the best thing evarrr.
I am an Android user but if Android becomes unusable due to Google's changes (to me, no snarky comments please) or banned or whatever wet dream many people are having I'll switch to an iPhone instantly. No real sweat off my back.
Is there anyone here who isn't salivating to the point of dehydration over the possible outcome of this trial who isn't emotionally invested towards or against a company who can actually explain this clearly and concisely for a layman. Aside from this forum all others (The Verge, ars, and a few lesser sites) seem to deem this a bad decision by the appeals court. Can someone explain without vitriol or circle jerkery exactly how this is in fact not a bad decision?
Thank you in advance.
Either way, I don't really care. I like iOS 7 enough and after falling in love with my macbook I may just go all in Apple after all....and eat crow amongst my friends. Lol
Well if the outcome had been the same as the first trial about copyrightability of software code then there absolutely would be no copyrightability at all for any source code and mean software piracy is OK. Anyone trying to say that API:s arent copyrightable because you should be able to use them for free does not know what they are talking about. Using API:s (calling API functions) is not the same thing as copying them into your own software.
I will bet a 1000 bucks that this will either end up in Google being forced to settle and pay for a license and past infringement (and stop using the bastardized java they use) or if they don't they will ultimately loose this trial and pay damages and take a license (and stop using the bastardized java they use). But it might take a couple of years for this to happen with appeals and all.
If the decision is in Google's favor you will decide it was unjust and if it isn't you will decide it is the best thing evarrr.
I am an Android user but if Android becomes unusable due to Google's changes (to me, no snarky comments please) or banned or whatever wet dream many people are having I'll switch to an iPhone instantly. No real sweat off my back.
Is there anyone here who isn't salivating to the point of dehydration over the possible outcome of this trial who isn't emotionally invested towards or against a company who can actually explain this clearly and concisely for a layman. Aside from this forum all others (The Verge, ars, and a few lesser sites) seem to deem this a bad decision by the appeals court. Can someone explain without vitriol or circle jerkery exactly how this is in fact not a bad decision?
Thank you in advance.
Either way, I don't really care. I like iOS 7 enough and after falling in love with my macbook I may just go all in Apple after all....and eat crow amongst my friends. Lol
Wrong. People who predicted this two years ago didn't just go "it's a bad decision" - they gave specific reasons why. And those reasons two years ago were echoed by the judges in this appeal. Anybody can make a 50:50 guess and be right some of the time. People who give detailed reasons and and are then proven right are the ones who truly understand the issues.
You want a short explanation? Stealing is bad and trying to justify stealing by claiming fair use is adding insult to jury.There's no other way to condense all the issues down into a single sentence.
Is there anyone here who isn't salivating to the point of dehydration over the possible outcome of this trial who isn't emotionally invested towards or against a company who can actually explain this clearly and concisely for a layman. Aside from this forum all others (The Verge, ars, and a few lesser sites) seem to deem this a bad decision by the appeals court. Can someone explain without vitriol or circle jerkery exactly how this is in fact not a bad decision?
Many will try to convince you that this is some radical departure from copyright, when the Appeals Court really just reinstated the status quo that all original expression in an authored work is protectable, including software. Judge Alsup's decision was the radical departure, because it said that when noncopyrightable function coexists with otherwise protectable expression, the function trumps the expression and makes it noncopyrightable. The problem is that all computer code, any program, is about functionality (getting the computer to do something), and so Alsup's decision essentially says no software can be protected by copyright, upsetting decades of precedent. Which is why you'll hear people referring to Alsup's decision as "absurd" and expressing a lot of relief that now things are back to normal. The only thing different is that the Appeals Court has made it clear that except for certain narrow situations, all software is copyrightable, that there is no special exemption for APIs.
The key precedent for all this is the Supreme Court's decision in Feist, which says that the threshold for copyrightability is a very low one, that it only takes the merest spark of original expression for an authored work to be considered copyrightable (on the other hand, proving infringement has a much higher bar). Because of Feist, it is extremely unlikely that the Supreme Court would ever hear an appeal from Google on the copyrightability aspect of this case. The Appeals Court also reiterates that when function and expression coexist in the same code, it is possible to separate them, to protect the expression without granting copyright protection to the functionality. In other words, one can still give copyright protection to the original expression in APIs without giving copyright protection to their functionality. Anyone is free to recreate functionality (except where a function or method is patented), anyone can write software to accomplish a certain function, you just can't copy the way someone else has already done it. That's the expressive part. IOW, Google was free to write their own APIs to achieve the same functionality as the Java APIs, so long as they didn't copy Sun's way.
Many will try to convince you that this is some radical departure from copyright, when the Appeals Court really just reinstated the status quo that all original expression in an authored work is protectable, including software. Judge Alsup's decision was the radical departure, because it said that when noncopyrightable function coexists with otherwise protectable expression, the function trumps the expression and makes it noncopyrightable. [/COLOR]
Something obviously being missed by you and others (including me initially) is an incorrect understanding by the Appeals Court. You've mentioned this one yourself: Google admits to copying 7000 lines of declaring code verbatim. The problem? I guess no one thought to go back to the court record to see Google never said they did any such thing. Here's the statement they really submitted in the original case:
"Google denies infringing any such copyrighted material ... The copyrighted Java platform has more than 37 API packages and so does the accused Android platform. As for the 37 API packages that overlap, Google agrees that it uses the same names and declarations but contends that its line-by-line implementations are different … Google agrees that the structure, sequence and organization of the 37 accused API packages in Android is substantially the same as the structure, sequence and organization of the corresponding 37 API packages in Java... "
And here's the most important part: "With respect to the API documentation, Oracle contends Google copied the English-language comments in the registered copyrighted work and moved them over to the documentation for the 37 API packages in Android. Google agrees that there are similarities in the wording but, pointing to differences as well, denies that its documentation is a copy. Google further asserts that the similarities are largely the result of the fact that each API carries out the same functions in both systems."
If true then couldn't this be a issue of function only rather than expression? That would move the argument closer if not in line with the three Java API's that the Appeals Court seems to be saying are not copyright-eligible. The more I read this opinion the more I think it speaks to the specific facts from this case and not all API's. Not really certain but I'm still reading a couple more times.
In any event it appears the Appeals Court relied on an erroneous "fact" stated on page 12 of their ruling, Google admitting to literal copying. That's evident with the court stating " nothing prevented Google from writing its own declaring code, along with its own implementing code, to achieve the same result." Going by the above quotes from the first trial it would seem that's just what Google says they did...
AND IF they did (i'm not saying they factually did) I noted you have already offered your opinion on that: Google was free to write their own APIs to achieve the same functionality as the Java APIs, so long as they didn't copy Sun's way.
It's somewhat unfortunate that in some of these recent cases (Samsung/Apple, Google/Oracle, Apple/Justice Dept) those making the findings have little to no knowledge of or experience with the subject they're tasked with. Taking this to SCOTUS would hardly be giving it to more technology-oriented body either. I think they still rely on passing notes rather than using email or other electronic methods.
Something obviously being missed by you and others is an incorrect understanding by the Appeals Court. You've mentioned this one yourself: Google admits to copying 7000 lines of declaring code verbatim. The problem? I guess no one thought to go back to the court record to see Google never said they did any such thing. Here's the statement they really submitted in the original case:
"Google denies infringing any such copyrighted material ... The copyrighted Java platform has more than 37 API packages and so does the accused Android platform. As for the 37 API packages that overlap, Google agrees that it uses the same names and declarations but contends that its line-by-line implementations are different … Google agrees that the structure, sequence and organization of the 37 accused API packages in Android is substantially the same as the structure, sequence and organization of the corresponding 37 API packages in Java... "
I know legal terms and concepts are tricky and easily confused, and that's what you've done here. You are confusing copying with infringing. Google did not deny copying the 7000+ lines of declaring code, just as it did not deny copying the 9 lines of RangeCheck Code, or the other 8 files where material was found to be copied verbatim. Go read Alsup's ruling, or any coverage of the original trial. Google does not contest it copied these things, they do not say "we don't know how that got there." At trial they detailed precisely how they put it there. Google does deny they infringed. Not the same thing. One can copy without infringing, if for example, what was copied wasn't copyrightable. That's what Google argued at trial, and what Alsup agreed with—that they copied but did not infringe because what they copied wasn't copyrightable. Now the Appeals Court has reversed that and what Google admits to copying has been found to also be infringing because the Appeals Court has ruled that APIs are, in fact, copyrightable.
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And here's the most important part: "With respect to the API documentation, Oracle contends Google copied the English-language comments in the registered copyrighted work and moved them over to the documentation for the 37 API packages in Android. Google agrees that there are similarities in the wording but, pointing to differences as well, denies that its documentation is a copy. Google further asserts that the similarities are largely the result of the fact that each API carries out the same functions in both systems."
You are confusing the API documentation with the 7000+ lines of declaring code. The declaring code is not the documentation. The jury in the first trial came to the conclusion that Google did not infringe the documentation, but they did rule that Google infringed the 7000+ lines of declaring code. No one is arguing anything about the documentation, the Appeals Court ruling has to do with the 7000 lines of declaring code that Google admits it copied verbatim.
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If true then couldn't this be a issue of function only rather than expression? That would move the argument closer if not in line with the three Java API's that the Appeals Court seems to be saying are not copyright-eligible. The more I read this opinion the more I think it speaks to the specific facts from this case and not all API's. Not really certain but I'm still reading a couple more times.
Of course it only speaks to this case. There are other (very simple) APIs where the functionality can only be achieved by writing it one way, and there is little or no opportunity for the author to make creative choices, and without creative choices, there can be no original expression to protect. In such cases the idea (in this case the function) can't be separated from the expression of the idea, they wind up being the same, and since one can't copyright ideas, there is no original expression to copyright. However, Sun had an infinity of choices as to how it structured and organized the 37 Java API packages, and deciding among that infinity of choices is precisely what constitutes original expression, so any of the infinite choices they made to structure Java would be copyrightable. Whenever there are choices for an author to make, there is original expression for copyright to protect.
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In any event it appears the Appeals Court relied on an erroneous "fact" stated on page 12 of their ruling, Google admitting to literal copying. That's evident with the court stating " nothing prevented Google from writing its own declaring code, along with its own implementing code, to achieve the same result." Going by the above quotes from the first trial it would seem that's just what Google says they did...
Nope, Google copied verbatim, has always admitted they copied verbatim, and never denied they copied the declaring code verbatim. They argued that in copying APIs that they didn't infringe anything and Alsup agreed with that but they never denied copying, but the Appeals Court reversed Alsup's decision. Google not only copied verbatim, they infringed by copying the API declaring code verbatim. There are now just two questions left, 1) was their infringement an allowable exception (Fair Use) and if not, 2) what should the damages be.
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It's somewhat unfortunate that in some of these recent cases (Samsung/Apple, Google/Oracle, Apple/Justice Dept) those making the findings have little to no knowledge of or experience with the subject they're tasked with. Taking this to SCOTUS would hardly be giving it to more technology-oriented body either. I think they still rely on passing notes rather than using email or other electronic methods.
That's a weasel's argument. The Federal Circuit is highly technical, that's why it handles _ALL_ patent appeal cases which are extremely technical. It is the court with the best grasp of technical issues in the land. People who believe that these issues should only be decided by people who agree with their anti-copyright ideology, aren't even fit to fetch coffee for those judges.
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By the way for a contrary legal opinion on why the Appeals Court may have it wrong there's this if you're interested:
Well I've read that post several times now, and can't even find that it's a coherent argument, so I can't say I understand what he's saying and can only conclude he's another Google fanboy-in-denial who is merely arguing his "feelings." It's just a muddle trying to make the Sega precedent (interoperability can be a fair use) apply to copyrightability, even before the question of fair use is addressed. The Appeals court has definitively ruled that interoperability has no place whatsoever in deciding whether or not something is copyrightable. They utterly rejected Alsup's opinion on that as he couldn't cite any case law, legislation, or even theory on it. He made it up out of thin air! The Appeals Court does acknowledge interoperability can be relevant as a fair use defense, and have left that question open to be decided by a new jury trial.
I know legal terms and concepts are tricky and easily confused, and that's what you've done here. You are confusing copying with infringing. Google did not deny copying the 7000+ lines of declaring code, just as it did not deny copying the 9 lines of RangeCheck Code, or the other 8 files where material was found to be copied verbatim.
Thanks for that! Perhaps that's why no one else noticed it.
I know legal terms and concepts are tricky and easily confused, and that's what you've done here. You are confusing copying with infringing. Google did not deny copying the 7000+ lines of declaring code, just as it did not deny copying the 9 lines of RangeCheck Code, or the other 8 files where material was found to be copied verbatim. Go read Alsup's ruling, or any coverage of the original trial. Google does not contest it copied these things, they do not say "we don't know how that got there." At trial they detailed precisely how they put it there. Google does deny they infringed. Not the same thing. One can copy without infringing, if for example, what was copied wasn't copyrightable. That's what Google argued at trial, and what Alsup agreed with—that they copied but did not infringe because what they copied wasn't copyrightable. Now the Appeals Court has reversed that and what Google admits to copying has been found to also be infringing because the Appeals Court has ruled that APIs are, in fact, copyrightable.
You are confusing the API documentation with the 7000+ lines of declaring code. The declaring code is not the documentation. The jury in the first trial came to the conclusion that Google did not infringe the documentation, but they did rule that Google infringed the 7000+ lines of declaring code. No one is arguing anything about the documentation, the Appeals Court ruling has to do with the 7000 lines of declaring code that Google admits it copied verbatim.
Of course it only speaks to this case. There are other (very simple) APIs where the functionality can only be achieved by writing it one way, and there is little or no opportunity for the author to make creative choices, and without creative choices, there can be no original expression to protect. In such cases the idea (in this case the function) can't be separated from the expression of the idea, they wind up being the same, and since one can't copyright ideas, there is no original expression to copyright. However, Sun had an infinity of choices as to how it structured and organized the 37 Java API packages, and deciding among that infinity of choices is precisely what constitutes original expression, so any of the infinite choices they made to structure Java would be copyrightable. Whenever there are choices for an author to make, there is original expression for copyright to protect.
Nope, Google copied verbatim, has always admitted they copied verbatim, and never denied they copied the declaring code verbatim. They argued that in copying APIs that they didn't infringe anything and Alsup agreed with that but they never denied copying, but the Appeals Court reversed Alsup's decision. Google not only copied verbatim, they infringed by copying the API declaring code verbatim. There are now just two questions left, 1) was their infringement an allowable exception (Fair Use) and if not, 2) what should the damages be.
That's a weasel's argument. The Federal Circuit is highly technical, that's why it handles _ALL_ patent appeal cases which are extremely technical. It is the court with the best grasp of technical issues in the land. People who believe that these issues should only be decided by people who agree with their anti-copyright ideology, aren't even fit to fetch coffee for those judges.
Well I've read that post several times now, and can't even find that it's a coherent argument, so I can't say I understand what he's saying and can only conclude he's another Google fanboy-in-denial who is merely arguing his "feelings." It's just a muddle trying to make the Sega precedent (interoperability can be a fair use) apply to copyrightability, even before the question of fair use is addressed. The Appeals court has definitively ruled that interoperability has no place whatsoever in deciding whether or not something is copyrightable. They utterly rejected Alsup's opinion on that as he couldn't cite any case law, legislation, or even theory on it. He made it up out of thin air! The Appeals Court does acknowledge interoperability can be relevant as a fair use defense, and have left that question open to be decided by a new jury trial.
Nice job!
Appreciate your effort.
Not sure but the G guy often reminds me of Elmer ......... FUD.
Ideological dogma. The guy claims to be speaking for "software developers," so right there he's full o' it. Most real software developers that make a difference in the world and a difference in the market are—there's no other word for it—greedy capitalists, or minions of greedy capitalists, and maybe some feeling-guilty idealists. That's not to say the idealists don't also make a difference, I'm just sayin it's baloney that all, or even most practicing software developers see this the way he does, if they've even thought about it! However, if you changed every time he uses "software developer" to "anti-copyrighter," you'll immediately see who he's representing.
[…]
Is there anyone here who isn't salivating to the point of dehydration over the possible outcome of this trial who isn't emotionally invested towards or against a company who can actually explain this clearly and concisely for a layman. Aside from this forum all others (The Verge, ars, and a few lesser sites) seem to deem this a bad decision by the appeals court. Can someone explain without vitriol or circle jerkery exactly how this is in fact not a bad decision?
[…]
I understand your frustration with commentary on this forum.
You can find some pretty thorough and well reasoned discussion as to why this decision was correct and aligned with established law on the Foss patents web site: http://www.fosspatents.com/
I understand your frustration with commentary on this forum.
You can find some pretty thorough and well reasoned discussion as to why this decision was correct and aligned with established law on the Foss patents web site: http://www.fosspatents.com/
Maybe?....
foss
herr used to be boss
but now I wonder
how much he really coss.
Lawyers can argue any side for a fee
He flip too much for me.
He's tiresome with all that self aggrandizing but when he isn't talking about himself, usually his analysis is pretty accurate. Today's post is refreshing compared to all the hyperbole you hear from self proclaimed representatives of "software developers" about how this ruling is the end of the world. As far as Android's future goes, the only sensible solution I can see for Google going forward is to come to some long term Java-licensed arrangement with Oracle, and yeah Android's not going to be as free as Google touted, so what else is new? Same as it ever was.
Maybe Google's got something else up their sleeve nobody knows about, but for Android to move off of its Java foundation isn't just a Google problem but involves migrating all their developers too, and anyone who writes Android Apps will have to learn some whole new framework, and Google's going to likely have to license something else unless they've been developing a plan B in secret. What they'd have to do is on a level with what Jobs had to do in migrating Mac developers to OSX. Could take years, during which time a lot of Android's steam could be lost.
So I think he's right that the path of least resistance will be for Google to take a Java license. And it's definitely in Oracle's interest to come to an agreement. Once past damages are accounted for, I'm doubtful Oracle would charge Google more than other Java licensees, but it'll still be a whole lot of money because there's a whole lot of Android out there. I'm not a fan of Larry Ellison or Oracle, but I like there's some poetic justice in it all.
As far as Mueller's recent anti-Apple turn, he does have something of a point about Apple's "holy war," but he's overstating or doesn't see it in the bigger picture. People say this holy war thing looks bad on Apple wrt PR and I say PR is just one way to spin your brand. High profile court cases are another—see, I'm more cynical. With every court development, even the ones it loses, Apple is successfully branding Samsung a copycat and reinforcing that cheap knockoff stereotype for its strongest competitor, at the same time branding itself as the true innovator. I don't think anyone can deny that consumers are buying into it and Apple's winning the brand war. It's almost like some of the litigation costs could legitimately come out of the marketing budget. Jobs always knew how to milk the most out of any rivalry, whether it's Mac vs PC or iOS vs Android, and for now Cook doesn't have a lot of choice but to finish what Jobs started.
Just had a chance to look at this thread.. Sharp analysis/insights by ruddy.
Giving up on the API would, as ruddy pointed out, mean each application has to be rewritten. However, in theory at least, this would be a 'search and replace' of the source if Google manages to release something that stays clear of the Java SSO. It would be interesting to hear experts weigh in on how easy or difficult that would be, to a app developer.
One thing that should be obvious to anyone including those that sue Google or its ecosystem is their remarkable ability to fight and survive lawsuits. As foss boss Mueller points out, Apple hasn't collected a cent and Samsung has moved on, practically unscathed. You could say the same for Google. I would not be surprised at all, if it turns out they had a workable Plan B all along. This could be a license deal with Oracle on terms that don't hurt Google much or could be something radically different that makes Java API redundant. It already has ChromeOS that takes a different path and is rapidly gaining market and mind share.
In either case, Google has been as successful in the courtroom and legal arena as on the marketplace and that is not by chance or luck.
For Oracle the choice is equally tough. Java is practically dead in many respects, thanks to HTML5 and web apps that don't use Java either in front or back end. It is widely seen as a security nightmare. Less said about its mobile forays the better. In many ways it is far more important for Oracle to partner with Google to keep Java alive. That should moderate any license demand.
Just had a chance to look at this thread.. Sharp analysis/insights by ruddy.
Giving up on the API would, as ruddy pointed out, mean each application has to be rewritten. However, in theory at least, this would be a 'search and replace' of the source if Google manages to release something that stays clear of the Java SSO. It would be interesting to hear experts weigh in on how easy or difficult that would be, to a app developer.
I don't believe so. You are thinking they can just rewrite implementation code, and Google has already done that—written their own implementation code for Java. They will have to rewrite declaring code, a whole new framework which will take years to develop so even if they've been doing that in a skunkworks somewhere or even if they license something from someone else, they still have to get their developers to learn something that is not at all structured like Java, sequenced like Java, or organized like Java.
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One thing that should be obvious to anyone including those that sue Google or its ecosystem is their remarkable ability to fight and survive lawsuits. As foss boss Mueller points out, Apple hasn't collected a cent and Samsung has moved on, practically unscathed.
Yes that's a good point, Google has made great strides pushing the IP envelope and succeeding where one wouldn't have expected them to. That does not mean that this time they will automatically get a free pass. In the upcoming Fair Use Trial, they might win, which I believe doubtful if it were a judge ruling, but it'll be a jury trial and anything can happen there.
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I would not be surprised at all, if it turns out they had a workable Plan B all along. This could be a license deal with Oracle on terms that don't hurt Google much or could be something radically different that makes Java API redundant.
They're smart people, they know their options better than any of us, but whatever they do is going to require a transition, and a transition of platform takes time and will inevitably involve some kind of deal with Oracle.
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For Oracle the choice is equally tough. Java is practically dead in many respects, thanks to HTML5 and web apps that don't use Java either in front or back end. It is widely seen as a security nightmare. Less said about its mobile forays the better. In many ways it is far more important for Oracle to partner with Google to keep Java alive. That should moderate any license demand.
I don't think Oracle's choice is tough at all. I think they know they need to be flexible. In exchange for a piece of the Android pie they have an opportunity to fix things and revive its future prospects. If Google loses on Fair Use, which I think is likely, there's still a good chance everyone can benefit from the outcome.
Comments
Now well have to wait a while for them to make peace and Google to pay up. This will mean all android applications will need to be rebuilt and tested after Google is forced to be put back in line with their java bastard.
If the decision is in Google's favor you will decide it was unjust and if it isn't you will decide it is the best thing evarrr.
I am an Android user but if Android becomes unusable due to Google's changes (to me, no snarky comments please) or banned or whatever wet dream many people are having I'll switch to an iPhone instantly. No real sweat off my back.
Is there anyone here who isn't salivating to the point of dehydration over the possible outcome of this trial who isn't emotionally invested towards or against a company who can actually explain this clearly and concisely for a layman. Aside from this forum all others (The Verge, ars, and a few lesser sites) seem to deem this a bad decision by the appeals court. Can someone explain without vitriol or circle jerkery exactly how this is in fact not a bad decision?
Thank you in advance.
Either way, I don't really care. I like iOS 7 enough and after falling in love with my macbook I may just go all in Apple after all....and eat crow amongst my friends. Lol
If the decision is in Google's favor you will decide it was unjust and if it isn't you will decide it is the best thing evarrr.
I am an Android user but if Android becomes unusable due to Google's changes (to me, no snarky comments please) or banned or whatever wet dream many people are having I'll switch to an iPhone instantly. No real sweat off my back.
Is there anyone here who isn't salivating to the point of dehydration over the possible outcome of this trial who isn't emotionally invested towards or against a company who can actually explain this clearly and concisely for a layman. Aside from this forum all others (The Verge, ars, and a few lesser sites) seem to deem this a bad decision by the appeals court. Can someone explain without vitriol or circle jerkery exactly how this is in fact not a bad decision?
Thank you in advance.
Either way, I don't really care. I like iOS 7 enough and after falling in love with my macbook I may just go all in Apple after all....and eat crow amongst my friends. Lol
Well if the outcome had been the same as the first trial about copyrightability of software code then there absolutely would be no copyrightability at all for any source code and mean software piracy is OK. Anyone trying to say that API:s arent copyrightable because you should be able to use them for free does not know what they are talking about. Using API:s (calling API functions) is not the same thing as copying them into your own software.
I will bet a 1000 bucks that this will either end up in Google being forced to settle and pay for a license and past infringement (and stop using the bastardized java they use) or if they don't they will ultimately loose this trial and pay damages and take a license (and stop using the bastardized java they use). But it might take a couple of years for this to happen with appeals and all.
You want a short explanation? Stealing is bad and trying to justify stealing by claiming fair use is adding insult to jury.There's no other way to condense all the issues down into a single sentence.
Many will try to convince you that this is some radical departure from copyright, when the Appeals Court really just reinstated the status quo that all original expression in an authored work is protectable, including software. Judge Alsup's decision was the radical departure, because it said that when noncopyrightable function coexists with otherwise protectable expression, the function trumps the expression and makes it noncopyrightable. The problem is that all computer code, any program, is about functionality (getting the computer to do something), and so Alsup's decision essentially says no software can be protected by copyright, upsetting decades of precedent. Which is why you'll hear people referring to Alsup's decision as "absurd" and expressing a lot of relief that now things are back to normal. The only thing different is that the Appeals Court has made it clear that except for certain narrow situations, all software is copyrightable, that there is no special exemption for APIs.
The key precedent for all this is the Supreme Court's decision in Feist, which says that the threshold for copyrightability is a very low one, that it only takes the merest spark of original expression for an authored work to be considered copyrightable (on the other hand, proving infringement has a much higher bar). Because of Feist, it is extremely unlikely that the Supreme Court would ever hear an appeal from Google on the copyrightability aspect of this case. The Appeals Court also reiterates that when function and expression coexist in the same code, it is possible to separate them, to protect the expression without granting copyright protection to the functionality. In other words, one can still give copyright protection to the original expression in APIs without giving copyright protection to their functionality. Anyone is free to recreate functionality (except where a function or method is patented), anyone can write software to accomplish a certain function, you just can't copy the way someone else has already done it. That's the expressive part. IOW, Google was free to write their own APIs to achieve the same functionality as the Java APIs, so long as they didn't copy Sun's way.
Something obviously being missed by you and others (including me initially) is an incorrect understanding by the Appeals Court. You've mentioned this one yourself: Google admits to copying 7000 lines of declaring code verbatim. The problem? I guess no one thought to go back to the court record to see Google never said they did any such thing. Here's the statement they really submitted in the original case:
"Google denies infringing any such copyrighted material ... The copyrighted Java platform has more than 37 API packages and so does the accused Android platform. As for the 37 API packages that overlap, Google agrees that it uses the same names and declarations but contends that its line-by-line implementations are different … Google agrees that the structure, sequence and organization of the 37 accused API packages in Android is substantially the same as the structure, sequence and organization of the corresponding 37 API packages in Java... "
And here's the most important part: "With respect to the API documentation, Oracle contends Google copied the English-language comments in the registered copyrighted work and moved them over to the documentation for the 37 API packages in Android. Google agrees that there are similarities in the wording but, pointing to differences as well, denies that its documentation is a copy. Google further asserts that the similarities are largely the result of the fact that each API carries out the same functions in both systems."
Page 10 of this doc:
http://docs.justia.com/cases/federal/district-courts/california/candce/3:2010cv03561/231846/1018/0.pdf
If true then couldn't this be a issue of function only rather than expression? That would move the argument closer if not in line with the three Java API's that the Appeals Court seems to be saying are not copyright-eligible. The more I read this opinion the more I think it speaks to the specific facts from this case and not all API's. Not really certain but I'm still reading a couple more times.
In any event it appears the Appeals Court relied on an erroneous "fact" stated on page 12 of their ruling, Google admitting to literal copying. That's evident with the court stating " nothing prevented Google from writing its own declaring code, along with its own implementing code, to achieve the same result." Going by the above quotes from the first trial it would seem that's just what Google says they did...
AND IF they did (i'm not saying they factually did) I noted you have already offered your opinion on that: Google was free to write their own APIs to achieve the same functionality as the Java APIs, so long as they didn't copy Sun's way.
It's somewhat unfortunate that in some of these recent cases (Samsung/Apple, Google/Oracle, Apple/Justice Dept) those making the findings have little to no knowledge of or experience with the subject they're tasked with. Taking this to SCOTUS would hardly be giving it to more technology-oriented body either. I think they still rely on passing notes rather than using email or other electronic methods.
By the way for a contrary legal opinion on why the Appeals Court may have it wrong there's this if you're interested:
http://madisonian.net/2014/05/09/oracle-v-google-reversed-framing-matters/
and from a developer's point-of-view.
http://www.wired.com/2014/05/oracle-copyright/
and an on-going developer discussion
http://developers.slashdot.org/story/14/05/09/1646238/court-oracle-entitled-to-copyright-protection-over-some-parts-of-java
Something obviously being missed by you and others is an incorrect understanding by the Appeals Court. You've mentioned this one yourself: Google admits to copying 7000 lines of declaring code verbatim. The problem? I guess no one thought to go back to the court record to see Google never said they did any such thing. Here's the statement they really submitted in the original case:
"Google denies infringing any such copyrighted material ... The copyrighted Java platform has more than 37 API packages and so does the accused Android platform. As for the 37 API packages that overlap, Google agrees that it uses the same names and declarations but contends that its line-by-line implementations are different … Google agrees that the structure, sequence and organization of the 37 accused API packages in Android is substantially the same as the structure, sequence and organization of the corresponding 37 API packages in Java... "
I know legal terms and concepts are tricky and easily confused, and that's what you've done here. You are confusing copying with infringing. Google did not deny copying the 7000+ lines of declaring code, just as it did not deny copying the 9 lines of RangeCheck Code, or the other 8 files where material was found to be copied verbatim. Go read Alsup's ruling, or any coverage of the original trial. Google does not contest it copied these things, they do not say "we don't know how that got there." At trial they detailed precisely how they put it there. Google does deny they infringed. Not the same thing. One can copy without infringing, if for example, what was copied wasn't copyrightable. That's what Google argued at trial, and what Alsup agreed with—that they copied but did not infringe because what they copied wasn't copyrightable. Now the Appeals Court has reversed that and what Google admits to copying has been found to also be infringing because the Appeals Court has ruled that APIs are, in fact, copyrightable.
Page 10 of this doc:
http://docs.justia.com/cases/federal/district-courts/california/candce/3:2010cv03561/231846/1018/0.pdf
You are confusing the API documentation with the 7000+ lines of declaring code. The declaring code is not the documentation. The jury in the first trial came to the conclusion that Google did not infringe the documentation, but they did rule that Google infringed the 7000+ lines of declaring code. No one is arguing anything about the documentation, the Appeals Court ruling has to do with the 7000 lines of declaring code that Google admits it copied verbatim.
Of course it only speaks to this case. There are other (very simple) APIs where the functionality can only be achieved by writing it one way, and there is little or no opportunity for the author to make creative choices, and without creative choices, there can be no original expression to protect. In such cases the idea (in this case the function) can't be separated from the expression of the idea, they wind up being the same, and since one can't copyright ideas, there is no original expression to copyright. However, Sun had an infinity of choices as to how it structured and organized the 37 Java API packages, and deciding among that infinity of choices is precisely what constitutes original expression, so any of the infinite choices they made to structure Java would be copyrightable. Whenever there are choices for an author to make, there is original expression for copyright to protect.
In any event it appears the Appeals Court relied on an erroneous "fact" stated on page 12 of their ruling, Google admitting to literal copying. That's evident with the court stating " nothing prevented Google from writing its own declaring code, along with its own implementing code, to achieve the same result." Going by the above quotes from the first trial it would seem that's just what Google says they did...
Nope, Google copied verbatim, has always admitted they copied verbatim, and never denied they copied the declaring code verbatim. They argued that in copying APIs that they didn't infringe anything and Alsup agreed with that but they never denied copying, but the Appeals Court reversed Alsup's decision. Google not only copied verbatim, they infringed by copying the API declaring code verbatim. There are now just two questions left, 1) was their infringement an allowable exception (Fair Use) and if not, 2) what should the damages be.
That's a weasel's argument. The Federal Circuit is highly technical, that's why it handles _ALL_ patent appeal cases which are extremely technical. It is the court with the best grasp of technical issues in the land. People who believe that these issues should only be decided by people who agree with their anti-copyright ideology, aren't even fit to fetch coffee for those judges.
http://madisonian.net/2014/05/09/oracle-v-google-reversed-framing-matters/ ;
Well I've read that post several times now, and can't even find that it's a coherent argument, so I can't say I understand what he's saying and can only conclude he's another Google fanboy-in-denial who is merely arguing his "feelings." It's just a muddle trying to make the Sega precedent (interoperability can be a fair use) apply to copyrightability, even before the question of fair use is addressed. The Appeals court has definitively ruled that interoperability has no place whatsoever in deciding whether or not something is copyrightable. They utterly rejected Alsup's opinion on that as he couldn't cite any case law, legislation, or even theory on it. He made it up out of thin air! The Appeals Court does acknowledge interoperability can be relevant as a fair use defense, and have left that question open to be decided by a new jury trial.
Thanks for that! Perhaps that's why no one else noticed it.
Nice job!
Appreciate your effort.
Not sure but the G guy often reminds me of Elmer ......... FUD.
http://www.wired.com/2014/05/oracle-copyright/
Ideological dogma. The guy claims to be speaking for "software developers," so right there he's full o' it. Most real software developers that make a difference in the world and a difference in the market are—there's no other word for it—greedy capitalists, or minions of greedy capitalists, and maybe some feeling-guilty idealists. That's not to say the idealists don't also make a difference, I'm just sayin it's baloney that all, or even most practicing software developers see this the way he does, if they've even thought about it! However, if you changed every time he uses "software developer" to "anti-copyrighter," you'll immediately see who he's representing.
Nice job!
Appreciate your effort.
Thx!
I understand your frustration with commentary on this forum.
You can find some pretty thorough and well reasoned discussion as to why this decision was correct and aligned with established law on the Foss patents web site:
http://www.fosspatents.com/
Maybe?....
foss
herr used to be boss
but now I wonder
how much he really coss.
Lawyers can argue any side for a fee
He flip too much for me.
YMMV
It's a thing, deal!!!
He's tiresome with all that self aggrandizing but when he isn't talking about himself, usually his analysis is pretty accurate. Today's post is refreshing compared to all the hyperbole you hear from self proclaimed representatives of "software developers" about how this ruling is the end of the world. As far as Android's future goes, the only sensible solution I can see for Google going forward is to come to some long term Java-licensed arrangement with Oracle, and yeah Android's not going to be as free as Google touted, so what else is new? Same as it ever was.
Maybe Google's got something else up their sleeve nobody knows about, but for Android to move off of its Java foundation isn't just a Google problem but involves migrating all their developers too, and anyone who writes Android Apps will have to learn some whole new framework, and Google's going to likely have to license something else unless they've been developing a plan B in secret. What they'd have to do is on a level with what Jobs had to do in migrating Mac developers to OSX. Could take years, during which time a lot of Android's steam could be lost.
So I think he's right that the path of least resistance will be for Google to take a Java license. And it's definitely in Oracle's interest to come to an agreement. Once past damages are accounted for, I'm doubtful Oracle would charge Google more than other Java licensees, but it'll still be a whole lot of money because there's a whole lot of Android out there. I'm not a fan of Larry Ellison or Oracle, but I like there's some poetic justice in it all.
As far as Mueller's recent anti-Apple turn, he does have something of a point about Apple's "holy war," but he's overstating or doesn't see it in the bigger picture. People say this holy war thing looks bad on Apple wrt PR and I say PR is just one way to spin your brand. High profile court cases are another—see, I'm more cynical. With every court development, even the ones it loses, Apple is successfully branding Samsung a copycat and reinforcing that cheap knockoff stereotype for its strongest competitor, at the same time branding itself as the true innovator. I don't think anyone can deny that consumers are buying into it and Apple's winning the brand war. It's almost like some of the litigation costs could legitimately come out of the marketing budget. Jobs always knew how to milk the most out of any rivalry, whether it's Mac vs PC or iOS vs Android, and for now Cook doesn't have a lot of choice but to finish what Jobs started.
Just had a chance to look at this thread.. Sharp analysis/insights by ruddy.
Giving up on the API would, as ruddy pointed out, mean each application has to be rewritten. However, in theory at least, this would be a 'search and replace' of the source if Google manages to release something that stays clear of the Java SSO. It would be interesting to hear experts weigh in on how easy or difficult that would be, to a app developer.
One thing that should be obvious to anyone including those that sue Google or its ecosystem is their remarkable ability to fight and survive lawsuits. As foss boss Mueller points out, Apple hasn't collected a cent and Samsung has moved on, practically unscathed. You could say the same for Google. I would not be surprised at all, if it turns out they had a workable Plan B all along. This could be a license deal with Oracle on terms that don't hurt Google much or could be something radically different that makes Java API redundant. It already has ChromeOS that takes a different path and is rapidly gaining market and mind share.
In either case, Google has been as successful in the courtroom and legal arena as on the marketplace and that is not by chance or luck.
For Oracle the choice is equally tough. Java is practically dead in many respects, thanks to HTML5 and web apps that don't use Java either in front or back end. It is widely seen as a security nightmare. Less said about its mobile forays the better. In many ways it is far more important for Oracle to partner with Google to keep Java alive. That should moderate any license demand.
Just had a chance to look at this thread.. Sharp analysis/insights by ruddy.
Giving up on the API would, as ruddy pointed out, mean each application has to be rewritten. However, in theory at least, this would be a 'search and replace' of the source if Google manages to release something that stays clear of the Java SSO. It would be interesting to hear experts weigh in on how easy or difficult that would be, to a app developer.
I don't believe so. You are thinking they can just rewrite implementation code, and Google has already done that—written their own implementation code for Java. They will have to rewrite declaring code, a whole new framework which will take years to develop so even if they've been doing that in a skunkworks somewhere or even if they license something from someone else, they still have to get their developers to learn something that is not at all structured like Java, sequenced like Java, or organized like Java.
One thing that should be obvious to anyone including those that sue Google or its ecosystem is their remarkable ability to fight and survive lawsuits. As foss boss Mueller points out, Apple hasn't collected a cent and Samsung has moved on, practically unscathed.
Yes that's a good point, Google has made great strides pushing the IP envelope and succeeding where one wouldn't have expected them to. That does not mean that this time they will automatically get a free pass. In the upcoming Fair Use Trial, they might win, which I believe doubtful if it were a judge ruling, but it'll be a jury trial and anything can happen there.
I would not be surprised at all, if it turns out they had a workable Plan B all along. This could be a license deal with Oracle on terms that don't hurt Google much or could be something radically different that makes Java API redundant.
They're smart people, they know their options better than any of us, but whatever they do is going to require a transition, and a transition of platform takes time and will inevitably involve some kind of deal with Oracle.
For Oracle the choice is equally tough. Java is practically dead in many respects, thanks to HTML5 and web apps that don't use Java either in front or back end. It is widely seen as a security nightmare. Less said about its mobile forays the better. In many ways it is far more important for Oracle to partner with Google to keep Java alive. That should moderate any license demand.
I don't think Oracle's choice is tough at all. I think they know they need to be flexible. In exchange for a piece of the Android pie they have an opportunity to fix things and revive its future prospects. If Google loses on Fair Use, which I think is likely, there's still a good chance everyone can benefit from the outcome.