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Oracle v. Google - Understanding the Copyright Issue with API Specifications - mw
Tuesday, February 21 2012 @ 12:00 PM EST

One of the central themes in Oracle's copyright claims is that Google copied Oracle's (Sun's) design specifications for application interfaces (APIs) for Java Mobile Edition. Specifically, Oracle proposes the following question to be answered by the jury with respect to its copyright infringement claims:

Has Oracle proven by a preponderance of the evidence (i.e., “more likely than not”) that Google infringed Oracle’s copyrights in the Java software platform by (1) copying elements of the 37 Java API design specifications into Android software or documentation, (2) creating derivative works within Android based on the 37 Java API design specifications, and/or (3) copying elements of the 12 Java software code files into Android?

- Document 531, Appendix A [PDF; Text]

The thing that has always bothered me about this claim and which has always bothered me about Sun's (now Oracle's) licensing practices around Java specifications is whether they have overreached. That is, is Oracle extending the reach of its copyrights beyond the specification in a manner that would constitute copyright misuse.

Let's look at a typical specification license used by Sun in 2006, the Java Platform, Standard Edition License.

Oracle starts off by making the licensee's acceptance of all of the conditions of the license conditions precedent to the license:

[Oracle] IS WILLING TO LICENSE THIS SPECIFICATION TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT.
By making acceptance of these terms a condition precedent to the agreement, Oracle seeks to make any breach of the agreement grounds for an infringement claim, i.e., you breached, you have no license, you are infringing. An infringement action provides both monetary and equitable remedies (money and injunctive relief). If the terms of the agreement were mere covenants, i.e., promises to undertake some act, Oracle would only be able to sue for breach of contract and recover monetary damages for the breach.

Attempting such a step is dangerous ground for a licensor, however, particularly if the licensor seeks, through such language, to extend the reach of copyright protection to matter otherwise not protected by copyright. Setting aside the issue of patents because we are only focused on copyright here, the possibility of overreaching is manifest in this further language from the license:

  1. License for Evaluation Purposes.
    Sun hereby grants you a fully-paid, non-exclusive, non-transferable, worldwide, limited license (without the right to sublicense), under Sun's applicable intellectual property rights to view, download, use and reproduce the Specification only for the purpose of internal evaluation. This includes (i) developing applications intended to run on an implementation of the Specification, provided that such applications do not themselves implement any portion(s) of the Specification, and (ii) discussing the Specification with any third party; and (iii) excerpting brief portions of the Specification in oral or written communications which discuss the Specification provided that such excerpts do not in the aggregate constitute a significant portion of the Specification.
  2. License for the Distribution of Compliant Implementations.
    Sun also grants you a perpetual, non-exclusive, non-transferable, worldwide, fully paid-up, royalty free, limited license (without the right to sublicense) under any applicable copyrights or, subject to the provisions of subsection 4 below, patent rights it may have covering the Specification to create and/or distribute an Independent Implementation of the Specification that: (a) fully implements the Specification including all its required interfaces and functionality; (b) does not modify, subset, superset or otherwise extend the Licensor Name Space, or include any public or protected packages, classes, Java interfaces, fields or methods within the Licensor Name Space other than those required/authorized by the Specification or Specifications being implemented; and (c) passes the Technology Compatibility Kit (including satisfying the requirements of the applicable TCK Users Guide) for such Specification ("Compliant Implementation"). In addition, the foregoing license is expressly conditioned on your not acting outside its scope. No license is granted hereunder for any other purpose (including, for example, modifying the Specification, other than to the extent of your fair use rights, or distributing the Specification to third parties). Also, no right, title, or interest in or to any trademarks, service marks, or trade names of Sun or Sun's licensors is granted hereunder. Java, and Java-related logos, marks and names are trademarks or registered trademarks of Sun Microsystems, Inc. in the U.S. and other countries.
  3. Pass-through Conditions.
    You need not include limitations (a)-(c) from the previous paragraph or any other particular "pass through" requirements in any license You grant concerning the use of your Independent Implementation or products derived from it. However, except with respect to Independent Implementations (and products derived from them) that satisfy limitations (a)-(c) from the previous paragraph, You may neither: (a) grant or otherwise pass through to your licensees any licenses under Sun's applicable intellectual property rights; nor (b) authorize your licensees to make any claims concerning their implementation's compliance with the Specification in question. [emphasis added]
The key question, to me, is what is the limit of the copyright in Oracle's specification. Does it only extend to the specification or does it extend to implementations? To me, the law in the U.S. on this question is quite clear. Consider the seminal case of Baker v. Selden. The Baker defines the limits of copyright protection in the context of a method or process described in a copyrighted work. In Baker, the plaintiff, Mr. Selden, wrote a book on accounting and bookkeeping practices that include numerous illustrations of how to maintain the books and records. The issue is well framed by this passage from the opinion:

The book or series of books of which the complainant claims the copyright consists of an introductory essay explaining the system of book- keeping referred to, to which are annexed certain forms or banks, consisting of ruled lines, and headings, illustrating the system and showing how it is to be used and carried out in practice. This system effects the same results as book-keeping by double entry; but, by a peculiar arrangement of columns and headings, presents the entire operation, of a day, a week, or a month, on a single page, or on two pages facing each other, in an account-book. The defendant uses a similar plan so far as results are concerned; but makes a different arrangement of the columns, and uses different headings. If the complainant's testator had the exclusive right to the use of the system explained in his book, it would be difficult to contend that the defendant does not infringe it, notwithstanding the difference in his form of arrangement; but if it be assumed that the system is open to public use, it seems to be equally difficult to contend that the books made and sold by the defendant are a violation of the copyright of the complainant's book considered merely as a book explanatory of the system. Where the truths of a science or the methods of an art are the common property of the whole world, any author has the right to express the one, or explain and use the other, in [101 U.S. 99, 101] his own way.
The court concluded that "blank account-books are not the subject of copyright; and that the mere copyright of Selden's book did not confer upon him the exclusive right to make and use account-books, ruled and arranged as designated by him and described and illustrated in said book."

Baker has subsequently been cited for the proposition that copyright does not extend to the protection of a process or method described in the work, only the work itself. This principle has since been codified in 17 U.S.C. § 102(b), which provides:

(b)

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.

A specification provides the instructions for how to build an API. It does not describe the specific lines of codes to be written. Rather, it provides a blueprint for how to build the code in much the same manner that an architects blueprint tells a contractor how to build a house. There is no question that the architect owns the copyright in the blueprint. But when the contractor purchases a copy of the blueprint license, the contractor obtains the right to use the blueprint to build the structure described in the blueprint without further claim from the architect. The architect certainly has no copyright claim in the finished structure. I would suggest that this analogy applies to one who develops an implementation of an API specification. Yet, Oracle attempts to claim a copyright in the finished structure (the API implementation) through its license conditions. Thus, we come to the issue of whether Oracle's practices constitute copyright misuse.

Copyright misuse is well described in the case of Lasercomb America Inc. v. Reynolds,911 F.2d 970 (4th Cir. 1990):

3. The “Misuse of Copyright” Defense

Although the patent misuse defense has been generally recognized since Morton Salt, it has been much less certain whether an analogous copyright misuse defense exists. See supra note 9. This uncertainty persists because no United States Supreme Court decision has firmly established a copyright misuse defense in a manner analogous to the establishment of the patent misuse defense by Morton Salt. The few courts considering the issue have split on whether the defense should be recognized, see Holmes, Intellectual Property, §4.09 (collecting cases), and we have discovered only one case which has actually applied copyright misuse to bar an action for infringement. M. Witmark & Sons v. Jensen, 80 F.Supp. 843 [79 USPQ 6](D. Minn. 1948), appeal dismissed, 177 F.2d 515 [84 USPQ 41] (8th Cir. 1949).

We are of the view, however, that since copyright and patent law serve parallel public interests, a “misuse” defense should apply to infringement actions brought to vindicate either right. As discussed above, the similarity of the policies underlying patent and copyright is the great and historically has been consistently recognized. Both patent law and copyright law seek to increase the store of human knowledge and arts by rewarding inventors and authors with the exclusive rights to their works for a limited time. At the same time, the granted monopoly power does not extend to property not covered by the patent or copyright. Morton Salt,314 U.S. at 492; Paramount Pictures, 334 U.S. at 156-58; 16 cf. Baker v. Selden, 101 U.S. 99, 101-04 (1880).

Thus, we are persuaded that the rationale of Morton Salt in establishing the misuse defense applies to copyrights. In the passage from Morton Salt quoted above, the phraseology adapts easily to a copyright context:

The grant to the [author] of the special privilege of a [copyright] carries out a public policy adopted by the Constitution and laws of the United States, “to promote the Progress of Science and useful Arts, by securing for limited Times to [Authors] . . . the exclusive Right . . .” to their [“original” works]. United States Constitution, Art. I, §8, cl. 8, [17 U.S.C.A. §102]. But the public policy which includes [original works] within the granted monopoly excludes from it all that is not embraced in the [original expression]. It equally forbids the use of the [copyright] to secure an exclusive right or limited monopoly not granted by the [Copyright] Office and which it is contrary to public policy to grant. Cf. Morton Salt, 314 U.S. at 492.

Having determined that “misuse of copyright” is a valid defense, analogous to the misuse of patent defense, our next task is to determine whether the defense should have been applied by the district court to bar Lasercomb’s infringement action against the defendants in this case. Lasercomb included the following language in its license agreement to its software:

D. Licensee agrees during the term of this Agreement that it will not permit or suffer its directors, officers and employees, directly or indirectly, to write, develop, produce or sell computer assisted die making software.

E. Licensee agrees during the term of this Agreement and for one (1) year after the termination of this Agreement, that it will not write, develop, produce or sell or assist others in the writing, developing, producing or selling of computer assisted die making software, directly or indirectly without Lasercomb’s prior written consent. Any such activity undertaken without Lasercomb’s written consent shall nullify any warranties or agreements of Lasercomb set forth herein.

The term of the Lasercomb license was 99 years, and by this language Lasercomb sought to bar the development of competing software by its licensees. The court in Lasercomb found:

... that misuse of copyright is a valid defense, that Lasercomb’s anticompetitive clauses in its standard licensing agreement constitute misuse of copyright, and that the defense is available to appellants even though they were not parties to the standard licensing agreement. Holding that Lasercomb should have been barred by the defense of copyright misuse from suing for infringement of its copyright in the [software] program ...
As stated by the court, a copyright misuse defense bars the copyright holder from asserting the copyright until such time as the act giving rise to the defense is removed.

As in Lasercomb, it strikes me that Oracle and its predecessor, Sun, seek to extend the reach of copyright in the API specifications in an improper manner. Whether the court agrees remains to be seen, but the Oracle/Sun licensing practices certainly beg the question.


**************

Documents

Java Platform, Standard Edition License

SUN MICROSYSTEMS, INC. ("SUN") IS WILLING TO LICENSE THIS SPECIFICATION TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED IN THIS AGREEMENT. PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY. BY DOWNLOADING THIS SPECIFICATION, YOU ACCEPT THE TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU ARE NOT WILLING TO BE BOUND BY IT, SELECT THE "DECLINE" BUTTON AT THE BOTTOM OF THIS PAGE.

Specification: JAVA PLATFORM, STANDARD EDITION ("Specification")
Version: 6
Status: Final Release
Release: December 7, 2006

Copyright 2006 SUN MICROSYSTEMS, INC.
4150 Network Circle, Santa Clara, California
95054, U.S.A
All rights reserved.

LIMITED LICENSE GRANTS

  1. License for Evaluation Purposes.
    Sun hereby grants you a fully-paid, non-exclusive, non-transferable, worldwide, limited license (without the right to sublicense), under Sun's applicable intellectual property rights to view, download, use and reproduce the Specification only for the purpose of internal evaluation. This includes (i) developing applications intended to run on an implementation of the Specification, provided that such applications do not themselves implement any portion(s) of the Specification, and (ii) discussing the Specification with any third party; and (iii) excerpting brief portions of the Specification in oral or written communications which discuss the Specification provided that such excerpts do not in the aggregate constitute a significant portion of the Specification.
  2. License for the Distribution of Compliant Implementations.
    Sun also grants you a perpetual, non-exclusive, non-transferable, worldwide, fully paid-up, royalty free, limited license (without the right to sublicense) under any applicable copyrights or, subject to the provisions of subsection 4 below, patent rights it may have covering the Specification to create and/or distribute an Independent Implementation of the Specification that: (a) fully implements the Specification including all its required interfaces and functionality; (b) does not modify, subset, superset or otherwise extend the Licensor Name Space, or include any public or protected packages, classes, Java interfaces, fields or methods within the Licensor Name Space other than those required/authorized by the Specification or Specifications being implemented; and (c) passes the Technology Compatibility Kit (including satisfying the requirements of the applicable TCK Users Guide) for such Specification ("Compliant Implementation"). In addition, the foregoing license is expressly conditioned on your not acting outside its scope. No license is granted hereunder for any other purpose (including, for example, modifying the Specification, other than to the extent of your fair use rights, or distributing the Specification to third parties). Also, no right, title, or interest in or to any trademarks, service marks, or trade names of Sun or Sun's licensors is granted hereunder. Java, and Java-related logos, marks and names are trademarks or registered trademarks of Sun Microsystems, Inc. in the U.S. and other countries.
  3. Pass-through Conditions.
    You need not include limitations (a)-(c) from the previous paragraph or any other particular "pass through" requirements in any license You grant concerning the use of your Independent Implementation or products derived from it. However, except with respect to Independent Implementations (and products derived from them) that satisfy limitations (a)-(c) from the previous paragraph, You may neither: (a) grant or otherwise pass through to your licensees any licenses under Sun's applicable intellectual property rights; nor (b) authorize your licensees to make any claims concerning their implementation's compliance with the Specification in question.
  4. Reciprocity Concerning Patent Licenses.
    a. With respect to any patent claims covered by the license granted under subparagraph 2 above that would be infringed by all technically feasible implementations of the Specification, such license is conditioned upon your offering on fair, reasonable and non-discriminatory terms, to any party seeking it from You, a perpetual, non-exclusive, non-transferable, worldwide license under Your patent rights which are or would be infringed by all technically feasible implementations of the Specification to develop, distribute and use a Compliant Implementation.

    b. With respect to any patent claims owned by Sun and covered by the license granted under subparagraph 2, whether or not their infringement can be avoided in a technically feasible manner when implementing the Specification, such license shall terminate with respect to such claims if You initiate a claim against Sun that it has, in the course of performing its responsibilities as the Specification Lead, induced any other entity to infringe Your patent rights.

    c. Also with respect to any patent claims owned by Sun and covered by the license granted under subparagraph 2 above, where the infringement of such claims can be avoided in a technically feasible manner when implementing the Specification such license, with respect to such claims, shall terminate if You initiate a claim against Sun that its making, having made, using, offering to sell, selling or importing a Compliant Implementation infringes Your patent rights.

  5. Definitions.
    For the purposes of this Agreement: "Independent Implementation" shall mean an implementation of the Specification that neither derives from any of Sun's source code or binary code materials nor, except with an appropriate and separate license from Sun, includes any of Sun's source code or binary code materials; "Licensor Name Space" shall mean the public class or interface declarations whose names begin with "java", "javax", "com.sun" or their equivalents in any subsequent naming convention adopted by Sun through the Java Community Process, or any recognized successors or replacements thereof; and "Technology Compatibility Kit" or "TCK" shall mean the test suite and accompanying TCK User's Guide provided by Sun which corresponds to the Specification and that was available either (i) from Sun's 120 days before the first release of Your Independent Implementation that allows its use for commercial purposes, or (ii) more recently than 120 days from such release but against which You elect to test Your implementation of the Specification.

This Agreement will terminate immediately without notice from Sun if you breach the Agreement or act outside the scope of the licenses granted above.

DISCLAIMER OF WARRANTIES

THE SPECIFICATION IS PROVIDED "AS IS". SUN MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT (INCLUDING AS A CONSEQUENCE OF ANY PRACTICE OR IMPLEMENTATION OF THE SPECIFICATION), OR THAT THE CONTENTS OF THE SPECIFICATION ARE SUITABLE FOR ANY PURPOSE. This document does not represent any commitment to release or implement any portion of the Specification in any product. In addition, the Specification could include technical inaccuracies or typographical errors.

LIMITATION OF LIABILITY

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL SUN OR ITS LICENSORS BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUE, PROFITS OR DATA, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, ARISING OUT OF OR RELATED IN ANY WAY TO YOUR HAVING, IMPELEMENTING OR OTHERWISE USING USING THE SPECIFICATION, EVEN IF SUN AND/OR ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. You will indemnify, hold harmless, and defend Sun and its licensors from any claims arising or resulting from: (i) your use of the Specification; (ii) the use or distribution of your Java application, applet and/or implementation; and/or (iii) any claims that later versions or releases of any Specification furnished to you are incompatible with the Specification provided to you under this license.

RESTRICTED RIGHTS LEGEND

U.S. Government: If this Specification is being acquired by or on behalf of the U.S. Government or by a U.S. Government prime contractor or subcontractor (at any tier), then the Government's rights in the Software and accompanying documentation shall be only as set forth in this license; this is in accordance with 48 C.F.R. 227.7201 through 227.7202-4 (for Department of Defense (DoD) acquisitions) and with 48 C.F.R. 2.101 and 12.212 (for non-DoD acquisitions).

REPORT

If you provide Sun with any comments or suggestions concerning the Specification ("Feedback"), you hereby: (i) agree that such Feedback is provided on a non-proprietary and non-confidential basis, and (ii) grant Sun a perpetual, non-exclusive, worldwide, fully paid-up, irrevocable license, with the right to sublicense through multiple levels of sublicensees, to incorporate, disclose, and use without limitation the Feedback for any purpose.

GENERAL TERMS

Any action related to this Agreement will be governed by California law and controlling U.S. federal law. The U.N. Convention for the International Sale of Goods and the choice of law rules of any jurisdiction will not apply.

The Specification is subject to U.S. export control laws and may be subject to export or import regulations in other countries. Licensee agrees to comply strictly with all such laws and regulations and acknowledges that it has the responsibility to obtain such licenses to export, re-export or import as may be required after delivery to Licensee.

This Agreement is the parties' entire agreement relating to its subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals, conditions, representations and warranties and prevails over any conflicting or additional terms of any quote, order, acknowledgment, or other communication between the parties relating to its subject matter during the term of this Agreement. No modification to this Agreement will be binding, unless in writing and signed by an authorized representative of each party.

Rev. April, 2006


Baker v. Selden

BAKER v. SELDEN

101 U.S. 99

October Term, 1879

APPEAL from the Circuit Court of the United States for the Southern District of Ohio.

The facts are stated in the opinion of the court.

Mr. Alphonso Taft and Mr. H. P. Lloyd for the appellant.

Mr. C. W. Moulton and Mr. M. I. Southard for the appellee.

MR. JUSTICE BRADLEY delivered the opinion of the court.

Charles Selden, the testator of the complainant in this case, in the year 1859 took the requisite steps for obtaining the copyright [101 U.S. 99, 100] of a book, entitled 'Selden's Condensed Ledger, or Book-keeping Simplified,' the object of which was to exhibit and explain a peculiar system of book- keeping. In 1860 and 1861, he took the copyright of several other books, containing additions to and improvements upon the said system. The bill of complaint was filed against the defendant, Baker, for an alleged infringement of these copyrights. The latter, in his answer, denied that Selden was the author or designer of the books, and denied the infringement charged, and contends on the argument that the matter alleged to be infringed is not a lawful subject of copyright.

The parties went into proofs, and the various books of the complainant, as well as those sold and used by the defendant, were exhibited before the examiner, and witnesses were examined to both sides. A decree was rendered for the complainant, and the defendant appealed.

The book or series of books of which the complainant claims the copyright consists of an introductory essay explaining the system of book- keeping referred to, to which are annexed certain forms or banks, consisting of ruled lines, and headings, illustrating the system and showing how it is to be used and carried out in practice. This system effects the same results as book-keeping by double entry; but, by a peculiar arrangement of columns and headings, presents the entire operation, of a day, a week, or a month, on a single page, or on two pages facing each other, in an account-book. The defendant uses a similar plan so far as results are concerned; but makes a different arrangement of the columns, and uses different headings. If the complainant's testator had the exclusive right to the use of the system explained in his book, it would be difficult to contend that the defendant does not infringe it, notwithstanding the difference in his form of arrangement; but if it be assumed that the system is open to public use, it seems to be equally difficult to contend that the books made and sold by the defendant are a violation of the copyright of the complainant's book considered merely as a book explanatory of the system. Where the truths of a science or the methods of an art are the common property of the whole world, any author has the right to express the one, or explain and use the other, in [101 U.S. 99, 101] his own way. As an author, Selden explained the system in a particular way. It may be conceded that Baker makes and uses account-books arranged on substantially the same system; but the proof fails to show that he has violated the copyright of Selden's book, regarding the latter merely as an explanatory work; or that he has infringed Selden's right in any way, unless the latter became entitled to an exclusive right in the system.

The evidence of the complainant is principally directed to the object of showing that Baker uses the same system as that which is explained and illustrated in Selden's books. It becomes important, therefore, to determine whether, in obtaining the copyright of his books, he secured the exclusive right to the use of the system or method of book-keeping which the said books are intended to illustrate and explain. It is contended that he has secured such exclusive right, because no one can use the system without using substantially the same ruled lines and headings which he was appended to his books in illustration of it. In other words, it is contended that the ruled lines and headings, given to illustrate the system, are a part of the book, and, as such, are secured by the copyright; and that no one can make or use similar ruled lines and headings, or ruled lines and headings made and arranged on substantially the same system, without violating the copyright. And this is really the question to be decided in this case. Stated in another form, the question is, whether the exclusive property in a system of book-keeping can be claimed, under the law or copyright, by means of a book in which that system is explained? The complainant's bill, and the case made under it, are based on the hypothesis that it can be.

It cannot be pretended, and indeed it is not seriously urged, that the ruled lines of the complainant's account-book can be claimed under any special class of objects, other than books, named in the law of copyright existing in 1859. The law then in force was that of 1831, and specified only books, maps, charts, musical compositions, prints, and engravings. An account-book, consisting of ruled lines and blank columns, cannot be called by any of these names unless by that of a book.

There is no doubt that a work on the subject of book-keeping, [101 U.S. 99, 102] though only explanatory of well-known systems, may be the subject of a copyright; but, then, it is claimed only as a book. Such a book may be explanatory either of old systems, or of an entirely new system; and, considered as a book, as the work of an author, conveying information on the subject of book-keeping, and containing detailed explanations of the art, it may be a very valuable acquisition to the practical knowledge of the community. But there is a clear distinction between the book, as such, and the art which it is intended to illustrate. The mere statement of the proposition is so evident, that it requires hardly any argument to support it. The same distinction may be predicated of every other art as well as that of book-keeping. A treatise on the composition and use of medicines, be they old or new; on the construction and use of ploughs, or watches, or churns; or on the mixture and application of colors for painting or dyeing; or on the mode of drawing lines to produce the effect of perspective,- would be the subject of copyright; but no one would contend that the copyright of the treatise would give the exclusive right to the art or manufacture described therein. The copyright of the book, if not pirated from other works, would be valid without regard to the novelty, or want of novelty, of its subject-matter. The novelty of the art or thing described or explained has nothing to do with the validity of the copyright. To give to the author of the book an exclusive property in the art described therein, when no examination of its novelty has ever been officially made, would be a surprise and a fraud upon the public. That is the province of letters-patent, not of copyright. The claim to an invention or discovery of an art or manufacture must be subjected to the examination of the Patent Office before an exclusive right therein can be obtained; and it can only be secured by a patent from the government.

The difference between the two things, letters-patent and copyright, may be illustrated by reference to the subjects just enumerated. Take the case of medicines. Certain mixtures are found to be of great value in the healing art. If the discoverer writes and publishes a book on the subject ( as regular physicians generally do), he gains no exclusive right to the manufacture and sale of the medicine; he gives that to the [101 U.S. 99, 103] public. If he desires to acquire such exclusive right, he must obtain a patent for the mixture as a new art, manufacture, or composition of matter. He may copyright his book, if he pleases; but that only secures to him the exclusive right of printing and publishing his book. So of all other inventions or discoveries.

The copyright of a book on perspective, no matter how many drawings and illustrations it may contain, gives no exclusive right to the modes of drawing described, though they may never have been known or used before. By publishing the book, without getting a patent for the art, the latter is given to the public. The fact that the art described in the book by illustrations of lines and figures which are reproduced in practice in the application of the art, makes no difference. Those illustrations are the mere language employed by the author to convey his ideas more clearly. Had he used words of description instead of diagrams (which merely stand in the place of words), there could not be the slightest doubt that others, applying the art to practical use, might lawfully draw the lines and diagrams which were in the author's mind, and which he thus described by words in his book.

The copyright of a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds, or to the diagrams which he employs to explain them, so as to prevent an engineer from using them whenever occasion requires. The very object of publishing a book on science or the useful arts is to communicate to the world the useful knowledge which it contains. But this object would be frustrated if the knowledge could not be used without incurring the guilt of piracy of the book. And where the art it teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the public; not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application.

Of course, these observations are not intended to apply to ornamental designs, or pictorial illustrations addressed to the taste. Of these it may be said, that their form is their essence, [101 U.S. 99, 104] and their object, the production of pleasure in their contemplation. This is their final end. They are as much the product of genius and the result of composition, as are the lines of the poet or the historian's period. On the other hand, the teachings of science and the rules and methods of useful art have their final end in application and use; and this application and use are what the public derive from the publication of a book which teaches them. But as embodied and taught in a literary composition or book, their essence consists only in their statement. This alone is what is secured by the copyright. The use by another of the same methods of statement, whether in words or illustrations, in a book published for teaching the art, would undoubtedly be an infringement of the copyright.

Recurring to the case before us, we observe that Charles Selden, by his books, explained and described a peculiar system of book-keeping, and illustrated his method by means of ruled lines and blank columns, with proper headings on a page, or on successive pages. Now, whilst no one has a right to print or publish his book, or any material part thereof, as a book intended to convey instruction in the art, any person may practise and use the art itself which he has described and illustrated therein. The use of the art is a totally different thing from a publication of the book explaining it. The copyright of a book on book-keeping cannot secure the exclusive right to make, sell, and use account-books prepared upon the plan set forth in such book. Whether the art might or might not have been patented, is a question which is not before us. It was not patented, and is open and free to the use of the public. And, of course, in using the art, the ruled lines and headings of accounts must necessarily be used as incident to it.

The plausibility of the claim put forward by the complainant in this case arises from a confusion of ideas produced by the peculiar nature of the art described in the books which have been made the subject of copyright. In describing the art, the illustrations and diagrams employed happen to correspond more closely than usual with the actual work performed by the operator who uses the art. Those illustrations and diagrams consist of ruled lines and headings of accounts; and [101 U.S. 99, 105] it is similar ruled lines and headings of accounts which, in the application of the art, the book-keeper makes with his pen, or the stationer with his press; whilst in most other cases the diagrams and illustrations can only be represented in concrete forms of wood, metal, stone, or some other physical embodiment. But the principle is the same in all. The description of the art in a book, though entitled to the benefit of copyright, lays no foundation for an exclusive claim to the art itself. The object of the one is explanation; the object of the other is use. The former may be secured by copyright. The latter can only be secured, if it can be secured at all, by letters-patent.

The remarks of Mr. Justice Thompson in the Circuit Court in Clayton v. Stone & Hall (2 Paine, 392), in which copyright was claimed in a daily price-current, are apposite and instructive. He says: 'In determining the true construction to be given to the act of Congress, it is proper to look at the Constitution of the United States, to aid us in ascertaining the nature of the property intended to be protected. 'Congress shall have power to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their writings and discoveries.' The act in question was passed in execution of the power here given, and the object, therefore, was the promotion of science; and it would certainly be a pretty extraordinary view of the sciences to consider a daily or weekly publication of the state of the market as falling within any class of them. They are of a more fixed, permanent, and durable character. The term 'science' cannot, with any propriety, by applied to a work of so fluctuating and fugitive a form as that of a newspaper or price-current, the subject-matter of which is daily changing, and is of mere temporary use. Although great praise may be due to the plaintiffs for their industry and enterprise in publishing this paper, yet the law does not contemplate their being rewarded in this way: it must seek patronage and protection from its utility to the public, and not a work of science. The title of the act of Congress is, 'for the encouragement of learning,' and was not intended for the encouragement of mere industry, unconnected with learning and the sciences. . . . We are, accordingly, of opinion that the paper in question is not [101 U.S. 99, 106] a book the copyright to which can be secured under the act of Congress.'

The case of Cobbett v. Woodward (Law Rep. 14 Eq. 407) was a claim to copyright in a catalogue of furniture which the publisher had on sale in his establishment, illustrated with many drawings of furniture and decorations. The defendants, being dealers in the same business, published a similar book, and copied many of the plaintiff's drawings, though it was shown that they had for sale the articles represented thereby.

The court held that these drawings were not subjects of copyright. Lord Romilly, M. R., said: 'This is a mere advertisement for the sale of particular articles which any one might imitate, and any one might advertise for sale. If a man not being a vendor of any of the articles in question were to publish a work for the purpose of informing the public of what was the most convenient species of articles for household furniture, or the most graceful species of decorations for articles of home furniture, what they ought to cost, and where they might be bought, and were to illustrate his work with designs of each article he described,-such a work as this could not be pirated with impunity, and the attempt to do so would be stopped by the injunction of the Court of Chancery; yet if it were done with no such object, but solely for the purpose of advertising particular articles for sale, and promoting the private trade of the publisher by the sale of articles which any other person might sell as well as the first advertiser, and if in fact it contained little more than an illustrated inventory of the contents of a warehouse, I know of no law which, while it would not prevent the second advertiser from selling the same articles, would prevent him from using the same advertisement; provided he did not in such advertisement by any device suggest that he was selling the works and designs of the first advertiser.'

Another case, that of Page v. Wisden (20 L. T. N. S. 435), which came before Vice-Chancellor Malins in 1869, has some resemblance to the present. There a copyright was claimed in a cricket scoring-shett, and the Vice- Chancellor held that it was not a fit subject for copyright, partly because it was not new, but also because 'to say that a particular [101 U.S. 99, 107] mode of ruling a book constituted an object for a copyright is absurd.'

These cases, if not precisely in point, come near to the matter in hand, and, in our view, corroborate the general proposition which we have laid down.

In Drury v. Ewing (1 Bond, 540), which is much relied on by the complainant, a copyright was claimed in a chart of patterns for cutting dresses and basques for ladies, and coats, jackets, &c., for boys. It is obvious that such designs could only be printed and published for information, and not for use in themselves. Their practical use could only be exemplified in cloth on the tailor's board and under his shears; in other words, by the application of a mechanical operation to the cutting of cloth in certain patterns and forms. Surely the exclusive right to this practical use was not reserved to the publisher by his copyright of the chart. Without undertaking to say whether we should or should not concur in the decision in that case, we think it cannot control the present.

The conclusion to which we have come is, that blank account-books are not the subject of copyright; and that the mere copyright of Selden's book did not confer upon him the exclusive right to make and use account-books, ruled and arranged as designated by him and described and illustrated in said book.

The decree of the Circuit Court must be reversed, and the cause remanded with instructions to dismiss the complainant's bill; and it is

So ordered


  


Oracle v. Google - Understanding the Copyright Issue with API Specifications - mw | 208 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections thread
Authored by: nsomos on Tuesday, February 21 2012 @ 12:05 PM EST
Please post your corrections to the article here.
A summary in the title may be helpful.

Thanks

[ Reply to This | # ]

News picks
Authored by: feldegast on Tuesday, February 21 2012 @ 12:17 PM EST
Please make links clickable

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Off topic
Authored by: feldegast on Tuesday, February 21 2012 @ 12:19 PM EST
Please make links clickable

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

Comes Transcribing
Authored by: feldegast on Tuesday, February 21 2012 @ 12:20 PM EST
Thank you for your support

---
IANAL
My posts are ©2004-2012 and released under the Creative Commons License
Attribution-Noncommercial 2.0
P.J. has permission for commercial use.

[ Reply to This | # ]

But why would anybody even accept such a specification license?
Authored by: Anonymous on Tuesday, February 21 2012 @ 12:43 PM EST
Having implemented various APIs I always found it easier to rely on books
written about them, like the O'Reilly Java in a nutshell books, which have nice
bare bones api overviews and separate explanations of usage of these classes and
interfaces. That combined with testing against actual applications using those
APIs was all that was needed.

So why would anybody accept such a license when they can just go to a book store
and buy a (better) book on the API to implement things?

[ Reply to This | # ]

A wonderful contribution!
Authored by: Anonymous on Tuesday, February 21 2012 @ 01:23 PM EST

I for one have been very worried all along about Google having to argue for the right to interface with the Java API in front of a random jury - a right we thought we already had established since the days the IBM PC BIOS was first cloned.

Mark has shown a possible way around this potential for disaster. I feel better for his efforts, and for that I am grateful.

Gringo

[ Reply to This | # ]

All java programs are belong to Oracle
Authored by: Anonymous on Tuesday, February 21 2012 @ 02:15 PM EST
At what point does a java program become just a user vice an
implementation of the specs? If the java program implements an
interface defined in spec, does that change? Creating an object that is
'drop-in' replacement such as a custom collection? How about an IDE
which 'copies' the interface declaration?

Object-oriented progamming uses such encapsulation and
'redefinitions'.

[ Reply to This | # ]

Baker v Selden
Authored by: Anonymous on Tuesday, February 21 2012 @ 03:22 PM EST
You realize of course, that were Mr. Selden inventing his system today, he would

patent the business method, and thus be able to prevent the entire world from
using it...

[ Reply to This | # ]

  • Baker v Selden - Authored by: Anonymous on Tuesday, February 21 2012 @ 07:18 PM EST
  • Baker v Selden - Authored by: Anonymous on Tuesday, February 21 2012 @ 08:15 PM EST
  • Business Methods - Authored by: mexaly on Tuesday, February 21 2012 @ 10:50 PM EST
    • Business Methods - Authored by: Anonymous on Wednesday, February 22 2012 @ 08:50 AM EST
  • Baker v Selden - Authored by: Anonymous on Wednesday, February 22 2012 @ 01:31 PM EST
private extensions to copyright law?
Authored by: Anonymous on Tuesday, February 21 2012 @ 03:58 PM EST
"By making acceptance of these terms a condition precedent to the
agreement, Oracle seeks to make any breach of the agreement grounds for an
infringement claim, i.e., you breached, you have no license, you are infringing.
An infringement action provides both monetary and equitable remedies (money and
injunctive relief). If the terms of the agreement were mere covenants, i.e.,
promises to undertake some act, Oracle would only be able to sue for breach of
contract and recover monetary damages for the breach."

As I read this paragraph, it also applies to most (all?) click through EULAs.
Software copyright holders have been given a golden key through these contracts,
to unlock the treasures that a copyright violation makes available. Any rules
and regulations a company puts into the EULA contract become part of copyright
law for that product. Defy the rules and become a copyright pirate. This EULA
contract is a very powerful lever and it has been used with a casual lack of
care. The restraints on adding illegal or outrageous clauses to EULAs, and
hence to the private copyright law, are very minimal.

I am not a lawyer. Is this view distorted?

--

Bondfire "private laws! surely there must be some kind of constitutional
issue in there"

[ Reply to This | # ]

copyright misuse & GPL
Authored by: awkScooby on Tuesday, February 21 2012 @ 06:37 PM EST
Putting my evil hat on for a moment: *if* I can construct a valid copyright
misuse defense, then I can ignore the terms of the GPL because the copyright
owners are barred from asserting the copyright.

That seems to be a way around the "if the GPL is found invalid, then you
still get me because then I'm in violation of copyright law" feature of the
GPL.

[ Reply to This | # ]

I think the judge gets it.
Authored by: Ian Al on Wednesday, February 22 2012 @ 06:20 AM EST
From the transcript of Google's summary judgement hearing:
MR. JACOBS: THERE WE GO. THIS IS THE COPYRIGHT LEGEND AND LICENSE ON THE API SPECIFICATION. THIS IS EXHIBIT 22 TO THE SWOOPES DECLARATION. AND WHAT YOU'LL SEE HERE IS THE WAY SUN-NOW-ORACLE IS RELYING ON COPYRIGHT TO PROTECT THE COMPATIBILITY, THE NONFRAGMENTATION OF THE JAVA PLATFORM.

SO WHAT THE LICENSE GRANT IN THE API SPECIFICATION IS IS:

"A FULLY PAID," ET CETERA, "LICENSE UNDER SUN'S INTELLECTUAL PROPERTY RIGHTS THAT ARE ESSENTIAL TO PRACTICE THIS SPECIFICATION. THIS LICENSE ALLOWS AND IS LIMITED TO THE CREATION AND DISTRIBUTION OF CLEAN ROOM IMPLEMENTATIONS OF THIS SPECIFICATION THAT INCLUDE A COMPLETE IMPLEMENTATION OF THE CURRENT VERSION OF THIS SPECIFICATION WITHOUT SUBSETTING," MEANING TAKING THINGS OUT, "OR SUPERSETTING," MEANING ADDING THINGS IN, "IMPLEMENTS ALL THE INTERFACES AND FUNCTIONALITY OF THE STANDARD JAVA PACKAGES AS DEFINED BY SUN," AGAIN, WITHOUT SUBSETTING OR SUPERSETTING, "DO NOT ADD ANY ADDITIONAL PACKAGES, CLASSES OR METHODS TO THE JAVA PACKAGES, AND THEN PASS THE TEST SUITES THAT ARE AVAILABLE FROM SUN, ARE NOT DERIVED FROM THE SOURCE CODE," ET CETERA.

SO THIS IS THE -- COPYRIGHT IS THE ENFORCEMENT MECHANISM HERE. COPYRIGHT PROTECTS THESE API SPECIFICATIONS FROM WHAT GOOGLE DID. GOOGLE DID EXACTLY WHAT THIS LICENSE PROHIBITS. GOOGLE SUBSETTING --

THE COURT: WELL, PERHAPS THEY DID, UNLESS -- BUT IF THE LAW PERMITTED THEM TO DO THAT, IF IT'S NOT COPYRIGHTABLE IN THE FIRST PLACE, OR THAT THERE WAS FAIR USE, OR, I MEAN, JUST BECAUSE THAT'S WHAT YOU DEMAND IN YOUR COPYRIGHT LICENSES DOESN'T MEAN THAT THE LAW BACKS THAT UP AS BEING REQUIRED.
From the jury questions:
Google infringed Oracle’s copyrights in the Java software platform by (1) copying elements of the 37 Java API design specifications into Android software or documentation, (2) creating derivative works within Android based on the 37 Java API design specifications, and/or (3) copying elements of the 12 Java software code files into Android?
From the SE licence:
to create and/or distribute an Independent Implementation of the Specification that: (a) fully implements the Specification including all its required interfaces and functionality; (b) does not modify, subset, superset or otherwise extend the Licensor Name Space, or include any public or protected packages, classes, Java interfaces, fields or methods within the Licensor Name Space other than those required/authorized by the Specification or Specifications
Dalvik is not Java. It does not implement the many SE or ME specifications. Therefore, it does not have to avoid modification, subsetting, supersetting or otherwise extending the Licensor Name Space, or including any public or protected packages, classes, Java interfaces, fields or methods within the Licensor Name Space other than those required/authorized by the Specification or Specifications


Thus, the portion of the licence that might apply to Google is the following:
License for Evaluation Purposes. Sun hereby grants you a fully-paid, non-exclusive, non-transferable, worldwide, limited license (without the right to sublicense), under Sun's applicable intellectual property rights to view, download, use and reproduce the Specification only for the purpose of internal evaluation. This includes... and (ii) discussing the Specification with any third party; and (iii) excerpting brief portions of the Specification in oral or written communications which discuss the Specification provided that such excerpts do not in the aggregate constitute a significant portion of the Specification.
I omitted the bit about developing applications to run on Java SE, because that is irrelevant to Google. So Google are allowed to share portions of the specification as long as it is not a significant portion. Oracle say Google copied 37 API packages. The API packages referenced in Oracle's complaint contain between 160 and 200 packages. The two web-pages on which each of the 2 API Specifications are documented, and on which the licence appears, just lists the names of the packages and a simple description of what is in each package. The packages in one of the versions cited by Oracle, Java 2 Platform, Standard Edition, version 1.4.2., have 2723 classes in them and the classes are listed by name on the same page as the packages. Clicking on the class name takes you to another document describing the class and listing the names of the objects in the class. Click again and you get to the method specifications. Oracle only claim that Google copied elements of 37 of the packages. Is that a significant portion? How many methods in how many objects in how many classes did they copy out of the tens of thousands?

All I have covered, so far, is names and outline descriptions. The names, Judge Alsup tells us, are unprotectable. Did Google copy the outline descriptions? Why would they need to? If you keep clicking from page to page, eventually you get to the functional specification for a method together with a brief description of what it does.
Method Detail

get_domain_policy

public Policy get_domain_policy(int policy_type) This returns the policy of the specified type for objects in this domain. The types of policies available are domain specific. See the CORBA specification for a list of standard ORB policies.

Parameters:

policy_type - Type of policy to request
What I have done there is not an implementation of Java SE and is not a significant portion of Java 2 Platform, Standard Edition, version 1.4.2. and so I am licensed to show it to you and discuss it with you. This is the first point where Google might need to copy stuff from the API because it is the functional definition of the method. How much of this is creative expression as protected by copyright law and how much is the abstract ideas of how this tiny fraction of the Java 2 Platform, Standard Edition, version 1.4.2. actually works? How much of it has to be used in order to use the freely available Java language?

From Wikipedia:
In general, a namespace is a container that provides context for the identifiers (names, or technical terms, or words) it holds, and allows the disambiguation of homonym identifiers residing in different namespaces.

... In the Java programming language, identifiers that appear in namespaces have a short (local) name and a unique long "qualified" name for use outside the namespace.
So, the general perception is that there is not one name space in Java, but several. The name space restriction given in the 'licence' has no technical or legal meaning.

There are seven different licences for the various versions of the SE APIs. There are more if you count the ME versions. Which, if any, is the version that applied to what Google allegedly copied?

Oracle have spoliated the evidence of which specific API specification(s) they accuse Google of copying and also the copyright licence in force for the specific copyright protected documents. All of the websites for the versions of SE in Oracle's complaints are gone. Only the public API Specification sites now exist. What was on the original website and was covered by the 'licence'? Was it, perhaps, to do with the entire Java SE system and not just the API names and definitions? Of the copyright document from which Oracle claim Google copied, how much of it was the API part and how much more was there on the entire licensed site?

Finally, the licensed right to 'view, download, use and reproduce the Specification'. I don't need a licence from a recipe book author to bake one of his cakes. I don't need a licence from an author of a woodworking book to use the book to make a piece of furniture. I don't need a licence from a mathematician to use the proofs in his book as a part of my own mathematical work. Copyright does not protect the ideas expressed by the creative expression, only the creative expression, itself. Oracle cannot protect the specifications from use by using the copyright laws.

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

API Copyright and the JCP process
Authored by: hAckz0r on Wednesday, February 22 2012 @ 12:27 PM EST
What I don't get is how Oracle can claim complete ownership of the API Copyright in the first place. All Java API's are born as a submission by an individual or company whom is a member of the Java Community Process (JCP) organization (see JCP.ORG ). There are a LOT of members, and any one of them can submit a new API, which after approval goes to a committee to create the specification. Yes, Oracle is a member, but they didn't necessarily do the submission, nor did Sun. It would be interesting to go through the records to see exactly who did submit each of the API's to the JCP committee. That being said, its the committee that creates the final API, not just Sun/Oracle. It's a shared process with which MANY individuals take part and vote.

All roads do not lead to Oracle. If Sun/Oracle is just a "part" or the process then they should have equally restricted rights when it comes to enforcement. The JCP organization should be the one with the Legal power of attorney when it comes to API enforcement, and Oracle is NOT in charge. Theoretically, I would think (IANAL), the JCP should have a vote to see if they are going to enforce any Copyright violations, and likely the many members will have a very different view of the world than Oracle does, in what an API is actually for in the first place.

For instance, here is the vote for the PDA Optional Packages for J2ME vote. Do you see Oracle on the roster? Did they vote? Well Sun casted their one vote along with these others: IBM, Insignia, Matsushita, Nokia, PalmSource, Philips, RIM, Siemens, WindRiver. So by my count Sun might have 1/10th of the Copyright? Go figure how Oracle could claim 100% in this case.

It would be fun to take the disputed API's and see just how much of the votes can be attributed to Oracle, prior to the Sun buyout. A very small percentage I would bet. What I have not figured out is how to tell who actually submitted an API in the first place. If it was someone other than Sun or Oracle then how could they claim anything "artistic" (aka non-functional) in the API in the first place? Just on the paper documents what were distributed.

---
DRM - As a "solution", it solves the wrong problem; As a "technology" its only 'logically' infeasible.

[ Reply to This | # ]

Failure to grok an SDK.......
Authored by: Anonymous on Wednesday, February 22 2012 @ 02:59 PM EST


Is this whole thing just a case of some non-technical middle manager/quasi-legal
type, discovering that you can write an 'java application source code' and run
it on an android gadget then failing to understand the process that actually
makes it work?

Now they've kicked the monster in to gear, it's hard to get it to stop.

Put the patents aside, they're near dead anyway.

Android API is in a different namespace to Java API
so this isn't about the Android API which is separate
from java.

This is about Oracle/Sun Copyrights. I am at this time unclear on exactly what
Oracle claims is infringed or how exactly it was that Google infringed.

Is this about the Copyright in the API, or the Copyright in the API
Specification? It seems the lawyers are trying to conflate the two in a
meaningless way.

As an exercise

If I download the OpenGL Specification, or buy a copy of the red book, my
understanding is that all copyright does is prevent me from duplicating and
distributing either of those things.


If I decide, just for fun, and because I'm poor that I'd like to implement a
FakeGL environment.
With the above documents in hand there is nothing to stop me going ahead and
producing a BlackBox software lump that 'responds like OpenGL', such that I
might independently and separately write an application that uses the lump while
prototyping development.

When prototyping is done, I can ship my application without the lump, and it
will work on an available GL implementation if there is one (in an ideal world)

Just for fun, call it Mesa.
At this point AFIAK(IANAL), no one is bothered, I haven't done anything wrong.

All that work done, I now want to write a book about my exploits, explaining how
what/why and how to use it.

I could make my life easy by writing the foreword : "Its NotGL, it's this
which is something else, the important thing is it looks like OpenGL from where
you sit" and then promptly paste in the contents of either the OpenGL API
Specification or the Red Book.

No question, even though IANAL, clearly dodgy behaviour.

So I go ahead and work work work, and craft a user guide
/ manual/ reference to my lump. Of necessity, there are bits of my book that
look like they might have been taken directly out of the API specification.
Dodgy plagiarism again?

Nope, IANAL, but isn't that exactly what the functional defence is for?

I even include a sample replicating the famous HellowWorld example (Say the
coloured triangle) from the RedBook.

IANAL, but I'm hoping, De minimis, Homage/Review/Reference would cover me

If I give someone a copy of my lump?

in binary format?

in source code?

With a copy of my book?


So what exactly is it that Google is supposed to have done? because AFAIK they
haven't even done that!





[ Reply to This | # ]

Oracle v. Google -API "copying" and fragmentation: I don't get it it
Authored by: Anonymous on Wednesday, February 22 2012 @ 07:16 PM EST
I'm seriously ignorant here, but I don't get it. If the API's are
"copied", which to me says that the same names are used, in the same
order, to pass values from Java to the Dalvik device, then that avoids
fragmenting Java: Java, Dalvik, you do the same thing.

On the other hand, if you change the names or the order of the values to be
passed to the Dalvik device, then you "fragment" Java.

So what does Oracle want? Non-fragmentation, using the same names and same
order, or a different set of names and order producing fragmentation?

I'm just dumb, I guess.

[ Reply to This | # ]

Cartography and entitlement
Authored by: Ian Al on Thursday, February 23 2012 @ 05:30 AM EST
From my previous comment, the only evidence remaining that Oracle have not spoliated is the published APIs for the many different versions of Java, each of which starts with an alphabetical list of all the packages and all of the classes. Each package is given an outline description of what is packaged inside it.

To my knowledge, Sun never registered the copyrights to the open API packages. They registered the copyright of whole versions of Java.
Certificate of Registration

TITLE OF THIS WORK

Java 2 Standard Edition 1.4

PREVIOUS OR ALTERNATIVE TITLES

J2SE 1,4m Java 2 Platform, Standard Edition, v 1.4, Java 2 Standard Edition Software Development Kit 1.4, SDK 1.4

... NATURE OF AUTHORSHIP

New and revised computer code and accompanying documentation and manuals

DERIVATIVE WORK OR COMPILATION

Prior works by claimant and licensed-in components.
So, the registration is for a compilation of the whole platform, SDK and documentation that makes Java 2 SE 1.4. The APIs are part of the documentation of the SDK and are not separately registered. In other words, the APIs are unregistered copyrights.

They claim that Google copied elements from 37 of approximately 160 packages in total, depending on the version of Java.

Google did not copy anything from the Sun website. They copied from the Apache Harmony website where they were given an Apache licence to do so. The Harmony project was in full compliance with the Sun, Java licence because they, independently implemented Java SE in accordance with the licence they got from Sun.

Let's imagine that Google copied from the Sun website where the Sun licence was the permission to copy. What do Oracle maintain the complete API package represents.

MR. JACOBS: THE REASON COPYRIGHT LAWS WOULD PROTECT THESE API'S IS -- I ACTUALLY WOULD PROBABLY START IN THE SAME VERY INITIAL STARTING POINT THAT THE GOOGLE'S COUNSEL DID: BASIC COPYRIGHT LAW PRINCIPLES. WHAT'S THE BEST ANALOGY IN THE WORLD THAT YOU AND I ARE MORE ROUTINELY FAMILIAR WITH TO AN APPLICATION PROGRAMMING INTERFACE? AND PROBABLY IT'S A DETAILED PLOT OUTLINE, A VERY, VERY DETAILED PLOT OUTLINE IN WHICH THERE ARE LOOPS BACK AND FORTH, IN THE WHICH THE PLOT OUTLINE SAYS:

"OH, WELL, LET'S GO BACK UP HERE TO REMIND OURSELVES WHO MR. JONES WAS, BECAUSE WE DESCRIBED MR. JONES UP HERE. AND NOW WE'RE GOING TO ACTUALLY TELL 1YOU A LITTLE BIT ABOUT WHAT MR. JONES DID IN THIS NARRATIVE FLOW." AND THE IMPLEMENTATION OF THAT PLOT OUTLINE, THE ANALOGY TO THE CODE WOULD BE THE ACTUAL NOVEL ITSELF. THE APPLICATION PROGRAM INTERFACES, AS PROFESSOR MITCHELL MAKES CLEAR IN HIS DECLARATION, IS BEST SEEN AS A KIND OF A GUIDE, A ROADMAP TO THE COMPUTER PROGRAM ITSELF.

AND IN THE CASE OF THE JAVA API'S WE'RE TALKING ABOUT, I TRIED TO EMPHASIZE THE COMPLEXITY OF THIS PLOT OUTLINE, BECAUSE IT'S NOT MERELY A LINEAR PLOT OUTLINE, A, B, C, D. THERE ARE -- IT'S A WEB OF INTERRELATIONSHIPS AND A WEB OF DEPENDENCIES.
But wait, the first page of the APIs is just a list of packages and classes. It is like an alphabetical index to a road atlas of the USA. 'Go to page 5 to go to the State of Texas'. When you get to page 5, you find a web of interrelationships between the road systems in Texas and a web of dependencies on the roads leading to other pages and to other states. The roads are not arranged on a linear grid, at all. There are loops back and forth between the pages. I am trying to emphasize the complexity of this cartographical outline. The API is best seen as a kind of guide, a roadmap to the computer program itself.

So, do you need a licence from the cartographer to drive down the roads of the US, especially if the cartographer is Google and you get the maps for free?

---
Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid!

[ Reply to This | # ]

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