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Fair use would not be a finding of law | 81 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Fair use would be the worst case outcome
Authored by: ionic on Thursday, May 03 2012 @ 11:16 AM EDT
Not the rest of the world, only the US.

[ Reply to This | Parent | # ]

Fair use would not be a finding of law
Authored by: OmniGeek on Thursday, May 03 2012 @ 11:30 AM EDT
AIUI, the jury is a finder of fact. If they decide there was infringement under
an invalid theory of law, that doesn't seem like much of a precedent to me, as
it doesn't touch the question of API copyrightability; indeed, it doesn't go
beyond the boundaries of this case, as it only interprets Google's actions
relating to Android and Java.

API copyrightability, by contrast is a matter of law, and thus is for the judge
to decide. That ruling would create a meaningful precedent (as well as possibly
mooting the jury verdict). I think that's the thing to watch here.

---
My strength is as the strength of ten men, for I am wired to the eyeballs on
espresso.

[ Reply to This | Parent | # ]

Fair use would be the worst case outcome
Authored by: Anonymous on Thursday, May 03 2012 @ 11:30 AM EDT
If I understand it correctly, if the Judge doesn't rule, then
all it means is Google isn't guilty of anything. The Jury
doesn't decide law, and has been told not to (simply to
render a verdict as if the law were established - basically,
to answer a "What if" question.)

So, no precedent would be set by the Jury saying they find it
Fair Use. It would simply leave the question to the next
trial where the same issue comes up.

[ Reply to This | Parent | # ]

Fair use would be the worst case outcome
Authored by: Anonymous on Thursday, May 03 2012 @ 11:38 AM EDT
In some ways this would be a good outcome. It would put the world on notice to
abandon Java (tm)

[ Reply to This | Parent | # ]

I agree - N/T
Authored by: celtic_hackr on Thursday, May 03 2012 @ 11:51 AM EDT
NT

[ Reply to This | Parent | # ]

Disagree completely
Authored by: Anonymous on Thursday, May 03 2012 @ 12:35 PM EDT
Worst case would be jury ruling of no fair use, then judge ruling that APIs are
copyrightable, then Supremes declining to review.

Look at it this way: with a ruling of fair use, a would-be copyright troll now
has two hurdles to overcome -- first the hurdle of getting past fair use itself,
then the uncertainty over API copyrightability in general.

Certainly a judgement that APIs are not copyrightable would be wonderful, but a
win on fair use is not at all the worst possible outcome, and is much more
likely to be appeal-proof.

[ Reply to This | Parent | # ]

Fair use would be the worst case outcome
Authored by: Anonymous on Thursday, May 03 2012 @ 01:29 PM EDT
To be clear: there are some good arguments to be made that a finding of fair use does not set legal precedent.

However, that verdict can still provide FUD to influence people with small legal budgets. Worried CEOs might "settle" rather than take the chance that a judge other than Alsup would require an appeal or two to be corrected, thus running up the bill. Any potential lawsuit is not likely to simply be eliminated in summary judgement without a strong precedent, which a verdict of fair use will not provide.

[ Reply to This | Parent | # ]

Fair use would be the worst case outcome
Authored by: AntiFUD on Thursday, May 03 2012 @ 03:00 PM EDT
While I agree with you that it would be better for the industry if the Judge
were to rule that API's, published specifications and any and all SSO contained
therein are outside the scope of copyright law, this would NOT set a precedent.

Precedents are only made at the Appeals level and above, and then only if
reported.

IIRC, Judge Alsup has already admonished Oracle for quoting a Federal Court
ruling (which set no precedent in and of itself), by simply stating that ruling
was made by a mere Federal Judge! Doubtless, he saw the funny side of his
comment, since this makes him a mere Federal Judge too.

Even if Judge Alsup rules that APIs and/or SSOs are uncopyrightable - this means
nothing until the 9th Circuit agrees with him. They could disagree with him and
send the case back.

However, there is a redeeming feature of the matter of API and/or SSO
copyright-ability going to the 9th Circuit - Amicus briefs could be submitted
by the industry and the industry organizations such as EFF pointing out to the
Appeals Judges the extremely negative effects on the Industry (especially wrt
the USA) of such a draconian finding.

I feel confident, having read a few of the Newspicks items of what is at stake
in the Oracle vs Google case, that the consensus is not likely to rest on its
laurels whilst the Court of Appeals makes what could be a Giganormous mistake.

I think the vast majority of the Comments here on Groklaw bear out the
repercussions that would be felt throughout the Industry both in the US and
possibly the rest of the World - well possibly not India, China and Brazil.

If the worst comes to the worst, at least Google has the resources to take the
matter to the SCOTUS, and they would have the majority of the industry on their
side if they have to go that far.

PS: I have to admit that I still don't have a clue what a SSO is with respect
to a computer, a computer platform, or any software (or documentation thereto).

As I have stated before I have grave doubts that Sun had more than a modicum of
influence over the inclusion of the organization of the vast majority of the
additions made to the various Java Platforms submitted by others over the years
through the JCP, the JSRs and the JSPA.

Sun, alone, may have set the organization and possibly structure of the original
hierarchy of the platforms, but the selections of the packages added thereafter
were determined by committee the JSPA.

Further, I feel pretty sure that Sun don't even own the copyright on at least
50% of the packages included in J2SE v5 (a guess I admit) but it does go to the
over-reaching nature of their claims to the overall SSO of the JDK.

This is getting too long, but I will note that, as I understand it, contributors
to the JSPA have been required to allow the JSPA to sub-license their
copyrighted works, but they still retained their copyrights (no assignment
required). Hence if anyone had the right to pursue the SSO claim it would be
the JSPA and certainly not Oracle. But hopefully the JSPA members would realize
the folly of pursuing such idiocy.

---
IANAL - Free to Fight FUD - "to this very day"

[ Reply to This | Parent | # ]

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