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The information on Groklaw is not intended to constitute legal advice. While Mark is a lawyer and he has asked other lawyers and law students to contribute articles, all of these articles are offered to help educate, not to provide specific legal advice. They are not your lawyers.

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Amici briefs | 115 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
The Corrections Thread
Authored by: ais523 on Friday, March 01 2013 @ 01:12 AM EST
In case PJ has made a mistake. Put a summary of your correction in the title of
your post, so that people can more quickly check if they're submitting a
duplicate.

[ Reply to This | # ]

Newspicks Thread
Authored by: hardmath on Friday, March 01 2013 @ 03:15 AM EST
Please include a link to the newspick article (posted in HTML)
for any new subthreads opened here.


---
Recursion is the opprobrium of the mathists.

[ Reply to This | # ]

Off-topic Thread
Authored by: hardmath on Friday, March 01 2013 @ 03:19 AM EST
The strange, the bizarre, the truly misplaced discussions
which constantly break out here at Groklaw... such as Calvin
Klein's new line of Amicus Briefs. Help him by suggesting Ad
Campaign taglines.

---
Recursion is the opprobrium of the mathists.

[ Reply to This | # ]

Comes Transcripts
Authored by: hardmath on Friday, March 01 2013 @ 03:27 AM EST

For more information about How to Help, click here.

Moderate length documents can be posted here as HTML format but in Plain Text mode, so PJ can copy-and-paste. Longer documents can be emailed to PJ using the link at left.

---
Recursion is the opprobrium of the mathists.

[ Reply to This | # ]

Why do they care?
Authored by: stegu on Friday, March 01 2013 @ 04:08 AM EST
Why does MS care about this? Well, now that MS has been forced to document their
APIs for interoperability reasons, and patent protection of vaguely worded ideas
and concepts seems to be on its way out behind the barn to be shot, they
desperately want to make the same land grab with copyrights. Neither MS nor
Oracle has much creative power left in them, and they are desperately trying to
prevent others from overtaking them in their traditional business areas by
measures other than making good products that are worth their price.

The copyright card was first played through SCO as a proxy, but it failed.
Patents proved to be super effective for while, but now that greed has driven
them to silly and stupid lengths to protect everything you can possibly do
"on a computer" and they are losing their undeserved and ill-gotten
privileges, they are back to trying to salvage their original plan.

It's annoying, but to me, the current situation is a clear sign that the
dinosaurs are losing and gripping for straws. I'm hopeful. This is playing out
nicely for everyone in the world except for a few large corporations that are
much too set in their old ways. Their business will continue to prosper, only
with them having a much smaller part of it for themselves.

[ Reply to This | # ]

Try not to have a stroke when you read it
Authored by: Anonymous on Friday, March 01 2013 @ 07:22 AM EST

Maybe that's the aim, to cause all of us to drop dead from shock.

Wayne
http://madhatter.ca

[ Reply to This | # ]

Amici briefs
Authored by: maroberts on Friday, March 01 2013 @ 09:55 AM EST
Does Groklaw as a body have a right to submit amici briefs, explaining why the
others are misleading?

[ Reply to This | # ]

Misappropriation
Authored by: Anonymous on Friday, March 01 2013 @ 12:07 PM EST

Nobody puts the GPL license on software to prevent "misappropriation of their innovation".
Actually, that was a prime concern for myself in choosing the GPL over BSD license. It really depends how you end up defining "misappropriation". If you use a more generic definition, it fits:
    To use someone's copyrighted product under one of the few rights reserved by Law to the copyright holder against the copyright holders permission.
So while MS is free to change BSD code, wrap it in a binary, and license that for a cost to others - I don't view that as acceptable behavior as applied to my code. So in that sense - using the GPL as protection against misappropriation is reasonable.
It's the entire point, to share knowledge so others can build on it.
I choose it for that reason too :)

RAS

[ Reply to This | # ]

Microsoft is funny
Authored by: Anonymous on Friday, March 01 2013 @ 12:43 PM EST

IANAL, the fun below is just what I've learned relative to Copyright Law and MS.

On the other hand, they wanted to make sure that commercial enterprises could not free-ride on the efforts of the open-source community by making minor changes or additions to open-source programs but then enforcing their own intellectual property rights on the entire modified programs.
Ahh - the amusing disconnect. Someone making "de minimis" use of a work is one thing - and not necessarily anywhere near the same as someone making "quite heavy" use of a work. If MS Lawyers actually believe making huge changes to a work (thereby potentially creating a new work) is synonymous under Copyright Law as someone making a minimal change to a work and treating that as "a new work":
    I'd seriously recommend MS find new Lawyers
Or even comparing MS' preference of making a minimal change and then using the full work with what Google appears to have done by creating a very small subset of the Java API calls for interoperability and making a completely brand new work otherwise as synonymous - HAH!

Of course, no one - not even MS themselves would be thrilled if someone took their work, made a minimalist change and then sold it as though it was a full original of the copier.

Copyright is the source of the property protection that enables those who release software under a GPL to impose conditions on others who obtain that code.
Tough condition:
    I, the copyright owner, will grant you a non-exclusive license to make use of the normally restricted rights of Copyright Law associated with making and distributing the work
in exchange:
    I, the copyright owner, will require of you the decency not to hide the source code and to make sure it's available
Hmm... an allowance of copying and distribution while requiring the source code is not hidden... that's a mighty tough trade to comply with ;)
The chief legal reason why users must abide by the terms of the General Public License, or the Mozilla Public License, or any open-source license, is that failing to do so exposes the violator to potential copyright liability.
I would say that's equally true of EULAs.

It sure is tough to deal with most open source licensors though.

Instead of following the regular practice and accepting money along with a new license grant to "cure" the breach - there's so many of us who are masochistic enough to want nothing more then compliance with the license. Oh woe the Corporation who wants to ignore the license and do what they want anyway... most of those evil FLOSS peoples want compliance instead of money.... how can they possibly put food on the table by giving away their product and not accepting money?

Ok, enough facetiousness... time to find something else to do :)

RAS

[ Reply to This | # ]

Oracle using the same law firm as SCO
Authored by: esni on Friday, March 01 2013 @ 12:49 PM EST
Please remember what happended to SCO

Perhaps somebody would like the same to happen to Oracle?

---
Eskild
Denmark


[ Reply to This | # ]

Another stab at intro to practical APIs.
Authored by: Anonymous on Friday, March 01 2013 @ 02:00 PM EST
An API defines a division of labour, but it doesn't define how the labour is
carried out.

Consider the classic "calculator problem" where a string of concrete
numbers and operators are going to be supplied as input and a single number is
going to be output. e.g. "5 * 5 + 2" goes in, and "27" comes
out.

An outer API might be "result DoCalculation(input);".

Alternately a detail API might have "result ReduceMultiplication(input);
result ReduceAddition(input);".

The former API is sort of fire-and-forget in that the entire set of operations
goes off at once and you just get your "27". The latter API would,
when invoked properly, give you "25 + 2" after reducing the
multiplication and then finally "27" after reducing the remaining
addition.

In _neither_ case is the activity performed in each step called out. It is
strongly inferred, but it is not "defined". For instance if you called
ReduceAddition("5 * 5 + 2") you should get the string back unchanged
because the addition is _not_ _reduceable_ if the multiplication is still
pending.

[ASIDE: a "broken" implementation of the API might end up returning
"5 * 7" if you reduced by addition while the multiplication was still
pending.]

So why might one want the latter API? In most cases one would not, but in a
teaching context --- particularly one where you are teaching mathematical order
of operations --- the intermediate values would be interesting and valuable.

[ASIDE: the "5 * 7" result might _not_ be broken if you are teaching
mathematical order of operations and you _want_ the system to return incorrect
results for incorrect --- badly ordered etc --- applications of the calls. That
is, the math would be "bad" but you might want to be able to show the
results of "bad math" as a _feature_ of the code.]

So back to the overarching issue...

APIs are the explicit boundaries between code, and they constitute a set of
promises about what labour will happen "behind the curtain" of the
various calls. An API is the assertion "I'll handle this for you".
It's a set of exactingly specified promises. Some of those promises are _not_ in
the code, but instead they lie in the documentation. For instance the
expected/promised result of ReduceAddition("5 * 5 + 2") being either
"5 * 5 + 2" or "5 * 7" is a promise made not by the coding
of the API entry, but by a set of intangible rules --- e.g. plain english word
promises of I will or I won't protect against violations of orders of operation
--- that must accompany the actual machine-readable code.

Those non-code promises can be simple in appearance reading something like
"order of operations will be/not-be protected" or strongly inferred by
other code entries like "void ProtectOrderOfOperatons(true_or_false)"
that could then turn that promise on or off at runtime.

Since the API doesn't _do_ anthing, but it does explicitly define who is
responsible for doing what, the names of the API are sacrosanct to the function.
If I renamed the three functions above as DoA(), DoB(), and DoC() they would be
stripped of meaning. Which function is which? What labour does each promise the
programmer?

Worse, even if I then go on to say that DoA() is identical to
ReduceMulitplicaiton(), all the code that calls ReduceMultiplicaiton() woudl
have to manually edited to replace the later text with the former.

So an API is not the function performed, but the well formed promise of
function.

As legal speak, suppose someone offered a contract full of defined terms. Then
that someone said that everybody could use that contract and those defined terms
as defined in some large number of follow-on contractual dealings.

Then suppose someone took up that offer and use all those terms as defined and
then the first party said "we own all those terms and you cannot use our
definitions because of copyright; yea sure we offered our sheet of definitions
for public use; but you didn't even take the effort to substitute different
words or shuffle them around into different places so you violated our
copyright!"

In computer science we use two words "declare" and "define"
when talking about elements of an API. A declaration is a statement that
something exists. "result ReduceAddition(input)" is a declaration. It
promises that a function with that name exists and will perform the action
associated with the name. The definition of that function would be the actual
source code comprising all the steps, in order, necessary to implement the
declared function.

So the API-to-contract example is even less protection worthy. The initial
offering declares that there is this list of words that _someone_ will have
define. The initial offering party also has made up a set of definitions for
everyone to use. The other party comes by and says "we have completely
defined all those words too, and our definitions are compatable, so you can work
with us too."

So if Webster and Oxford sued each other for "copying" each other's
dictionaries because the same list of words were defined --- even thought the
definitions were all independently written and not identical --- we would have
this case in a nutshell.

Oxford complaining that all the words in Websters were arranged the same way
(alphabetically) and with the same structure (word first, in bold, then
pronunciation, then by part of speech, with numbered texts) would be weak sauce
indeed.

But there you have it. The definitions (actual code) are completely different
but the order and structure are the same so it was copying...?

Clearly Webster _could_ have reordered their words, sorting them by first vowel
instead of first letter; or putting all the nouns in first, then the adjectives
and so on. Indeed they could have, but that would have been ridiculous and the
opposite of useful.

So too all of Oracle's clams about order and structure and organization...

What's the line from The Devil's Advocate? Look but don't touch... Touch, but
don't taste... one stupid assertion at a time they keep trying to move the
obviously unworkable legal theory so far into left field that its hard to say
why it's so wrong, in hopes that that difficulty will make people feel like
maybe they have something right.

[ Reply to This | # ]

Apple Award Cut With New Trial for Some Samsung Products
Authored by: Anonymous on Friday, March 01 2013 @ 04:47 PM EST
Surprised this hasn't been commented on before, I'm sure I'm missing something... but a new(?) story on Bloomberg.

U.S. District Judge Lucy Koh in San Jose, California, today reduced the jury’s damages award by $450.5 million and said Samsung deserves a new trial on infringement claims over its Galaxy Prevail and other smartphones.

[ Reply to This | # ]

How will the Federal Circuit react to these briefs?
Authored by: macliam on Friday, March 01 2013 @ 07:08 PM EST

Disclaimers: I am not a lawyer. Since the CAFC decision on In Re Bilski was covered on Groklaw, I have been following patent blogs, and reading CAFC and SCOTUS decisions relating to patent law, and have read and re-read relevant CAFC and SCOTUS opinions repeatedly to get the sense of them. When a new patent case is decided and looks interesting, and is covered on patent blogs, I generally click on the link to check out the CAFC opinion. But I was reading Groklaw long before that, following the SCO v. IBM and SCO v. Novell stories.

Within the past few hours I have read Oracle's petitioner brief to the CAFC. Who do they think they are writing for? I have also skimmed the Microsoft amicus brief reproduced in the blog posting

I would be very surprised if the Oracle brief impressed the CAFC panel. I think it is fair to say that the CAFC have a very formalistic approach to the law, especially patent law. They are experts in exegesis of the intricate formal language of patent claims, and will focus on the possible meanings of every single word of a patent claim. In patent litigation they will pay attention to Markman hearings, and will review claim construction de novo and without deference (i.e., they will construe the claims themselves, and not defer to the rulings of the District Judge). They revel in rules and tests. Appeals like this one that are not directed to patent law or to claims against the Federal Government come their way from time to time. They are accustomed to adopting the precedent of the relevant circuit when determining matters outside patent law. They will not (I suggest) react positively to page after page of passionate appeal comparing the use of Java APIs with the activities of Ms Ann Droid. At the very least, I suspect that their reaction on reading it would be "Where's the beef?". They would have appreciated close legal argument setting out the precedents, the approaches taken by the various circuits when analysing software code under copyright law, and clear explanation of how case law reads on the case before them. Maybe Oracle are saving their main arguments for the rebuttal? From my initial reading the only Oracle case citation that seemed to read on API copyright status was Apple Computer. But I have yet to chase up that case.

However some of the judges (including in particular Chief Judge Randall A. Rader and Judge Pauline Newman) view the fundamental principles of patent law from a perspective that is the intellectual legacy of the late Judge Giles S. Rich who (as a patent attorney) was closely involved in the drafting of the 1952 Patent Act, and who, towards the end of his life, crafted the controversial opinions in Alappat and State Street that opened the floodgates of patent eligibility to methods for training janitors to dust and clean, methods for indicating dating status through coloured bracelets, methods for exercising cats, and the like. These judges fervently believe that, in the Information Age, all forms of useful information, data processing methods, mathematical algorithms etc. should be patent-eligible, provided only that such things lead to a useful, concrete and tangible result and are "novel" and not "obvious" as those terms of art are defined by Sections 102 and 103 of Title 35 of the United States Code. I note that, in a speech at an event in the Eastern District of Texas (which developed a reputation as patent troll heaven), Chief Judge Rader made reference to "Trolls and Grasshoppers". Grasshoppers, apparently, are those who don't make efforts to license the intellectual property they take advantage of until threated with a lawsuit.

The Federal Circuit is in a quandary with regard to the principles of patent-eligibility under Section 101. The Supreme Court, through its opinions in Bilski v. Kappos and Mayo v. Prometheus, has shredded virtually the entire corpus of Federal Circuit precedent used to determine whether claimed inventions are patent-eligible under Section 101. (And I get the impression that Justice Stephen Breyer, in his unanimous Mayo per curiam opinion, took pains to dispose of the case in a manner designed to flout all of the dicta that Judge Rich had employed to cabin Benson and Flook. It takes some subtlety to categorize a step of administering a standard medication to a patient as "informing an audience", when a vacated CAFC opinion was decided for patent-eligibility on the basis that the administration of the medication transformed the patient's blood, and therefore satisfied the machine-or-transformation test. And don't underestimate Justice Kennedy's opinion in Bilski which, but for two sections which Justice Scalia did not join, is the majority holding in this case. The opinion may seem understated but, on re-reading, it seems carefully crafted.) The Supreme Court has firmly established a line of cases, including Tatham, Morse, Funk Bros, Benson, Flook, Diehr, Chakrabarty, Bilski and Mayo that are governing precedent with regard to Section 101. The Supreme Court has made it plain that it considers these cases as mutually consistent with one another, and as constituting the foundation of Section 101 jurisprudence. The Federal Circuit is faced with the choice of either conforming to Supreme Court precedent by adopting an approach to patent-eligibility under Section 101 that is anathema to some of them, or else to fight a rearguard action to save as much of they can of their own philosophy. I think that the only shred of Federal Circuit precedent remaining is the holding, in Alappat, that a computer programmed with a software product is a "particular machine", and is thus manifestly patent-eligible provided only that the software produces a "useful, concrete and tangible result". The case CLS v. Alice Corporation that the Federal Circuit are rehearing en banc is in effect State Street II. The cases presented are very similar. If the dicta in Alappat are still good law (as Judge Newman seems to believe based on the oral transcript), then CLS v. Alice is patent-eligible under Section 101. But the Supreme Court is surely unlikely to approach the case in the same way.

So, back to Oracle v. Google at the CAFC. I wondered who the panel will be. I note that a petition for a writ of mandamus (concerning the Lindholm email) was denied by the CAFC in an order dated February 6, 2012. The petition was considered by Judges Lourie, Prost and Moore. Given that this panel dealt with the initial petition, is it likely that they would also hear the appeal? It seems that Judge Alan Lourie has a Ph.D. in Chemistry, and Judge Kimberley Moore has an M.S. in Electrical Engineering. Judge Sharon Prost seems to have been a lawyer acting in various capacities for the Federal Government before becoming a Circuit Judge. I think that it is clear that these judges will understand what an API is! (Thinking back to Judge Moore's interruptions at the oral arguments in CLS v. Alice, it may be that the purpose was to induce the lawyer to cut directly to the chase and not spend time going over positions expounded in the briefs.)

I suspect that the CAFC panel will be alive to the distinction between functional computer code and expressive text. There is a printed matter doctrine that denies patent-eligibility to printed matter on the grounds that such stuff is protected by Copyright Law. On the other hand, they will be very familiar with so-called Beauregard patent claims that claim a computer-readable medium recording computer software that, when loaded into a computer, causes the computer to carry out some claimed method. They hold that machine-readable code is not speech or expression of the sort that would be protected under the First Amendment etc. And given that it is treated as protectable under patent law, the functional aspects of the code that cause the computer to do what it does would not be protected under copyright law.

Maybe the Federal Circuit would welcome the opportunity to consider a case in Copyright Law (a part of Intellectual Property Law not normally within their remit) where there are no disputed facts, and a clear issue of law to decide on a matter that could set an important precedent? Whatever the outcome, I would expect the case to be disposed on the basis of legal principles and the theory of intellectual property law, and that the Federal Circuit will have little or no regard for amici who wax lyrical on the impact that a decision, one way or the other, would have on their businesses and activities.

[ Reply to This | # ]

Amicus Brief from Spafford, Ding and Hollar
Authored by: macliam on Friday, March 01 2013 @ 09:17 PM EST

Towards the end of the Spafford-Ding-Hollar:

If an API is written by an author trained in proper software engineering, safety, and security, the resulting API and code may support critical features and dependencies not explicitly described in the documentation. If someone else with less knowledge of the features and dependencies modifies the API (and the underlying implementation), it may introduce unanticipated vulnerabilities and instability. The versions (and stability) of the software may become fragmented and of uncertain reliability. Using the blueprint analogy given above, anyone not following the blueprint (e.g., putting in larger or extra windows) may cause unexpected failures ( e.g., wall collapse because of loss of load-bearing structure) because not all of the design requirements and responses are explicitly shown in the blueprint. By the same token, we believe that a software API should receive copyright protection to help prevent such failures in information systems.

But copyright is intended to protect non-functional creative expression! Arguing that good API design is important for functional reasons (helping to prevent failures in information systems) is making the case against copyright protection (especially when one takes into account the duration of copyright protection)

If the size of windows is immaterial (within limits) from a structural point of view, an architect can design a facade to suit whims and aesthetic values as she chooses. But if windows have to be of a certain size to accommodate panes of glass produced by a monopoly, or as a commodity of uniform size, then the aesthetic freedom and creativity of the architect is significantly constrained.

The brief claims that a justification in terms of interoperability with Java programs is irrelevant unless the device can interoperate with all Java programs. The logic of this escapes me. The GNU command line utilities would not escape copyright restrictions unless and until every single UNIX command had been implemented in GNU? The fact that a user could employ grep, awk, ps, ls, mv etc. is of no relevance or use unless every command (of Berkeley UNIX, or of UNIX System V, or of both) has been implemented in GNU?

Nevertheless this amicus brief contains a useful escription of what an API is. It does not address legal principle or case law, so far as I can see, but emphasizes the creativity and quantity of choice in designing a novel API.

[ Reply to This | # ]

Another API example: case citations
Authored by: macliam on Saturday, March 02 2013 @ 03:12 AM EST

A publishing firm, Opinions Inc., produces a series of law reports for some given jurisdiction, and develops a system of case citations, which they use in ordering and cross-referencing the opinions. The judges in that jurisdiction routinely make use of the publishing firm's case citations in order to cite precedent in their opinions. An organization, Utopia Law, creates an extensive series of commentaries on the cases. Opinions Inc. make the reports available on a website, using the case citations as a basis for the URLs. Utopia Law also put their commentaries up on the web, providing links where appropriate to the judgement on Opinion's website, and to both the judgement on Opinion's website and the commentary on Utopia's website. There are thousands of such citations.

Questions:

  • Does the printed version of Utopia's commentaries infringe any copyright belonging to Opinion, and do 'fair use' provisions apply?
  • Does the online version of Utopia's commentaries infring any copyright belonging to Opinion, and do 'fair use' provisions apply?
  • Can the resulting system of network computers be considered to be a particular machine for retrieving legal information?
  • Is the system of case citations an API for such a machine?
  • What is the relevance, if any, of any creativity and expression involved in the development of the case citation system, when considing issues of copyright liability and protection for the system of case citations?

[ Reply to This | # ]

An API must be textual, right?
Authored by: macliam on Saturday, March 02 2013 @ 04:03 AM EST

Apologies for the multiple threads.

OK, so substantial APIs are creative expression protectable under copyright law. But an interface need not be textual. A text-based shell like sh, csh, bash or tcsh is an interface. And a graphical user interface (GUI) is considered to be a type of shell. The difference between an applications programming interface (API) and a graphical user interface is that an API is an interface to enable an applications program to operate the machine, whereas a GUI is an interface to enable a user to operate the machine that just happens to be graphical as opposed to textual. They are both interfaces to enable interoperability.

So if interfaces are creative expression protectable under copyright law, they would not also be protectable under patent law (Baker v. Selden, if I remember correctly off the top of my head). So an interface, and in particular a graphical interface, would be protectable under copyright law. This is why we see all those lawsuits where companies are sued for copyright infringement in various interface features, like 'slide to unlock', and all sorts of gestures on touch screens? Such features could clearly never be protectable under patent law. Agreed?

[ Reply to This | # ]

Hypocrisy?
Authored by: Anonymous on Monday, March 11 2013 @ 01:44 PM EDT
Scott McNealy is currently speaking at SXSW ("Fro m Sun to Startup"). His bio says he "continues his longstanding commitment to education and advocacy for open and competitive business practices." His amici brief belies it.

[ Reply to This | # ]

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