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Ah! The Morning After... ~pj
Friday, June 01 2012 @ 10:11 AM EDT

Didn't you wake up feeling great? I did. And the more I think about the Oracle v. Google ruling on APIs, the better I feel. We have statements from both parties now, and I've rounded up the usual suspects, to see how they are taking it.

First, Google's statement:
The court’s decision upholds the principle that open and interoperable computer languages form an essential basis for software development. It’s a good day for collaboration and innovation.
And Oracle's:
Waaah. We hired the same law firm as SCO Group and tried the same strategy and yet we lost. How could *that* ever happen? No fair. We'll appeal! Just like SCO.
Kidding. Here's the real statement:
Oracle said it will appeal the ruling....

Oracle countered that Alsup's ruling would "make it far more difficult to defend intellectual property rights against companies anywhere in the world that simply takes them as their own."

By the way, that AP report got this part wrong:
Now, U.S. District Judge William Alsup said Google’s use of the APIs wasn’t covered by copyright law in the first place.

The effect of Thursday’s ruling is limited because a jury had earlier reached an impasse on the issue of fair use. But the ruling could be important in any appeals.

Um. No. The ruling totally wipes away the earlier partial ruling by the jury on the API question. Or as lawyers would say, it's now moot. There is no question of fair use for code that can't be copyrighted. You can't infringe something that isn't covered by copyright law, and so you don't need a defense like fair use. If that isn't clear, if you read this article on the Sony v. Connectix case, used in the Oracle v. Google litigation, you'll see why.

Caleb Garling provides a slightly longer Oracle statement:

Oracle soon issued a response. “Oracle is committed to the protection of Java as both a valuable development platform and a valuable intellectual property asset,” the statement read. “This ruling, if permitted to stand, would undermine the protection for innovation and invention in the United States and make it far more difficult to defend intellectual property rights against companies anywhere in the world that simply takes them as their own.”
Take them would be more grammatically correct, I believe, but why quibble. They must be upset.

Update: I now have the complete Oracle statement to the press:

"Oracle is committed to the protection of Java as both a valuable development platform and a valuable intellectual property asset. It will vigorously pursue an appeal of this decision in order to maintain that protection and to continue to support the broader Java community of over 9 million developers and countless law abiding enterprises. Google's implementation of the accused APIs is not a free pass, since a license has always been required for an implementation of the Java Specification. And the court's reliance on "interoperability" ignores the undisputed fact that Google deliberately eliminated interoperability between Android and all other Java platforms. Google's implementation intentionally fragmented Java and broke the "write once, run anywhere" promise. This ruling, if permitted to stand, would undermine the protection for innovation and invention in the United States and make it far more difficult to defend intellectual property rights against companies anywhere in the world that simply takes them as their own."
What about Edward J. Naughton, the lawyer for Microsoft who claimed APIs have been copyrighted for twenty years? You remember Mr. Naughton, don't you? The fellow who claimed Google had misused GPL's header files in Bionic, the part that connects Android to the Linux kernel, by putting them under the Apache License? Everyone, including Linus, told him he was all wet, but then did he really believe that silly stuff in the first place? One wonders. You know who believed him and spread the word? Guess. Yup! Florian Mueller. Wherever it is that corporations find their supporters, one thing is for sure, they find each other. Here's a trifecta, on Zoom:
Google supposedly put ..., 19 Mar 2011
Google supposedly put Linux code into Android in a legally questionable way that likely infringes the GPL, the license that governs Linux, according to what IP litigator Edward Naughton said on the Huffington Post Wednesday in a story entitled "Google's Android Contains Legal Landmines for Developers and Device Manufacturers" that patent watcher Florian Mueller picked up on.
Well, he *would*, wouldn't he? They both have received payments from Microsoft for services. Syscon, Mueller and Naughton. Would you buy a used car from any of them? I think you can tell a lot about a company by the people that sing their song, actually.

Where do these corporate players find people willing to say whatever they want said? Pilers-on on Android, while Microsoft and the other proprietary dudes try to take Android down via litigation instead of innovation. And no matter how many times these "experts" get things wrong, you still see headlines, IP Lawyer Says Blah Blah. It should be, IP Lawyer Forgot What He Learned in Law School, or Hopes You Don't Know the Difference. Or IP Lawyer Says Silly Stuff. How'd you like Oracle's expert being described by the judge in his ruling as essentially not-so-truthful? Whatever these people get out of it, it has to be enough to accept a tarnishing of their reputations.

That's what is so refreshing about the Free Software and Open Source community. They are straight-forwardly truthful. And nobody pays them to say anything. If there is a bug in the software, they tell everyone. If they think you are wrong about something, they say so. If you are right and they earlier argued against you, they manfully show up and say they had it wrong.

Here's Mr. Naughton's latest:

Brown Rudnick IP litigator Edward Naughton, who has been following the case and does not represent either of the parties involved, called Alsup's decision careful and measured. "It's something that I think students are going to be reading in copyright classes for a long time to come," Naughton said. "The judge was careful to base this on the facts of the case in front of him and to try to avoid making sweeping decisions."

That said, Naughton added that Oracle still has plenty of grounds for appeal since the decision is based largely on legal conclusions. Pointing to a particular section of Alsup's decision that contained an analysis of Baker v. Seldon, a U.S. Supreme Court case from the 1870s, Naughton said, "There's really no cases that address [the copyrightability of APIs] squarely."

(It's actually Baker v. Selden.)

Ah. No case? That didn't stop him from declaring just the other day that APIs are routinely copyrighted:

The Java API packages are, under copyright law, “literary works.” This category is broad, covering pretty much any written expression, whether on paper or electronically, including fiction, nonfiction, poetry, textbooks, reference works, directories, catalogs, advertising copy, compilations of information, and even databases. It was decided long ago that software source and object code are to be treated literary works. The only requirement is that the work must meet the copyright law’s low threshold for originality. (Remember that here Google admitted the originality of the Java API packages.)

I’ve been advising software companies on copyright law for more than 17 years. In my experience, software lawyers and developers routinely treat APIs as copyrightable and proprietary. Virtually every software license agreement declares that the software is copyrighted, and some of the best-drafted licenses I’ve seen specifically state that the APIs are copyrighted....

The idea that these proprietary APIs, developed at great expense, are not protected by copyright and can be freely copied would be regarded as heresy.

And Oracle’s assertion of copyright in its Java API packages is hardly groundbreaking. In the 1990s, for example, 3Dfx Interactive aggressively asserted its copyrights against others who distributed utilities that sought to emulate its proprietary Glide 3D graphics API.

Well, maybe not the best-drafted any more, thanks to Judge William Alsup, who cut through the FUD with a high-powered fire hose. I think Mr. Naughton should instead simply write that while he thought APIs were routinely copyrighted, now he's learned something new from the Hon. William Alsup. By the way, the 'aggressive assertion' was not litigation. It was some letters that told people to stop. But terms of use do not establish copyrightability. I think Mr. Naughton learned that in law school. Claiming one has a copyright doesn't mean one does, as Oracle -- like SCO Group before it -- has just been advised.

That's what kills me about these singers of songs. They are disinclined to admit to being wrong.

Which brings to mind Florian Mueller. I thought about making a list of all the things he got wrong, but really, what did he get right about this case? Seriously. You make a list of the achievements. It's like shooting goldfish in a bowl to list all the errors, so it feels mean. But I note nothing in his reaction to this ruling that admits any error. Instead, he corrects the judge, and while allowing that the judge is not a communist (!?), says his ruling came down on the no-property-rights side of the equation:

While Lotus v. Borland was about a much smaller SSO than the asserted Java APIs, the key thing is that he supported a ruling against copyrightability but felt that this could have unintended consequences and that there should be some kind of privilege to allow the use of some material rather than denying copyrightability in the first place.

Just to be very clear: Judge Alsup despises communism (he blamed Google in one of his orders last year for a "soviet-style" approach to business negotiations). But his order on this particular issue of API copyrightability happens to come down on the anti-property side of the spectrum. He could have held the asserted API SSO copyrightable and pointed to fair use and antitrust as the right ways to address any legitimate concerns....

What Judge Alsup instead decided to do is, in a nutshell, to say that method definitions are inherently so functional that they can't be copyrightable expression, and to point to interoperability considerations even though the very case he mostly relies on in this context, Sega v. Accolade was a fair use case....

The appeals court will have to decide whether a sweeping denial of copyrightability is in line with statutory law and case law, or whether copyrightability has to be allowed since the "sweeping proposition" Judge Alsup is concerned about can always be dealt with in other ways.

As you can see, not only does he know more than you and I, he seems to believe he knows the law better than this judge who has been on the bench in the Ninth Circuit since 1999. What unmitigated arrogance. Mueller is not even a lawyer, not even in his native Germany, and he "corrects" the judge. By the way, Judge Alsup studied law at Harvard University, and then when he graduated, he worked as a law clerk for Associate Justice of the United States Supreme Court William O. Douglas. You know how newly minted lawyers get assignments like that? By being the best in the class, that's how. The best in the class at Harvard University in 1971. Alsup was in private practice for a while, and then he worked as an Assistant Solicitor General in the US Department of Justice, after which he was Special Counsel in the Antitrust Division of the US Department of Justice.

And Mr. Mueller knows more than Judge Alsup? Really? I mean, *really*?!? How could that ever be the case? Who should *you* believe is more likely to get it right?

I don't think Oracle got its money's worth, frankly. They should be more careful in the "experts" they use, in my view. Perhaps after this drubbing, they will be.

And someone needs to apologize to this judge for that "he is not a communist but ..." remark.

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