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Can we also reach fair use? | 393 comments | Create New Account
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Can we also reach fair use?
Authored by: dio gratia on Sunday, May 27 2012 @ 05:58 PM EDT

Johnson Controls v Phoenix Control Systems, 886 F.2d 1173 (9th Cir CA, 1989) at ¶11:

Where an idea and the expression "merge," or are "inseparable," the expression is not given copyright protection. Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 742 (9th Cir.1971). In addition, where an expression is, as a practical matter, indispensable, or at least standard, in the treatment of a given idea, the expression is protected only against verbatim, or virtually identical copying. Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1507 (9th Cir.1987); Frybarger, 812 F.2d at 530.
Note the second sentence in the cite from Johnson above. It would seem in seeking their own implementation of the API implementations, Google avoided verbatim or virtually identical copying.

Now, is SSO subject to merger as inseparable? It would seem the Java path names make it so, based on your reading of Sony v. Connectix injunction appellate decision, 203 F.3d 596 (9th Cir. 2000) at ¶29 and ¶30.

Also supported at ¶23:

The fair use issue arises in the present context because of certain characteristics of computer software. The object code of a program may be copyrighted as expression, 17 U.S.C. S 102(a), but it also contains ideas and performs functions that are not entitled to copyright protection. See 17 U.S.C. S 102(b). Object code cannot, however, be read by humans. The unprotected ideas and functions of the code therefore are frequently undiscoverable in the absence of investigation and translation that may require copying the copyrighted material. We conclude that, under the facts of this case and our precedent, Connectix's intermediate copying and use of Sony's copyrighted BIOS was a fair use for the purpose of gaining access to the unprotected elements of Sony's software.
(Emphasis added)

From further reading of ¶23 of Sony we can draw a parallel between fair use decompiling or disassembly and fair use accessing through path names dictated by SSO. The idea being that Google's independent implementation of the Classes, etc. of the particular APIs require the SSO to compile using javac using Java's original implementation. Those ideas and functions not accessible without using the SSO, incidentally also used by numerous Java SE programmers in original works.

There is no apparent legal requirement that Google should change the SSO in providing their API implementations, in particular when maintaining that observable structure allows an improper subset of Java SE to be run on Dalvik after conversion, using the JDK for exactly what it was intended. Improper subset in that Google provides additional API implementations for use. The API SSO required to use Oracle's API implementations, the names and functional elements not protected as ideas and used during generation of Java code ultimately translated for Android use.

Drive by fair use and unprotected elements. Belts and suspenders for the eventual appeal.

[ Reply to This | Parent | # ]

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