Comment by dctoedt | Hacker News Reader

Comment by dctoedt | Hacker News Reader

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As to factor number 1, the purpose and character of the infringing use: In the 2 Live Crew / Pretty Woman case, the Supreme Court held that just because an infringing use is commercial, that doesn't automatically mean it's unfair (although it is indeed an important factor). [0]

As to factor number 2, the nature of the copyrighted work: For the last 20 years or so, courts have been backing away from the expansive approach of Whelan v. Jaslow and instead using a Computer Associates v. Altai "abstraction, filtration, comparison" analysis; in the end, courts typically hold that copyright protection for functional aspects of software is "thin." See, e.g., UC law professor (and MacArthur "genius grant" recipient) Pam Samuelson's 2013 review of the case law. [1]

From what I've read of the facts, number 3 -- the amount and substantiality of the portion used from the copyrighted work in relation to the work as a whole -- might have weighed heavily in Google's favor.

As to number 4, I didn't get a sense whether or not the evidence showed that Android has had a material adverse effect on the market for Java; that weighed heavily in the Supreme Court's thinking in the 2 Live Crew case.

[0] https://supreme.justia.com/cases/federal/us/510/569/case.htm...

[1] http://scholarlycommons.law.northwestern.edu/cgi/viewcontent...

Good point about factor #4. But (in light of dragonwriter's comment below): wasn't Sun making a play at getting JVM into peoples' phones before Android stole their thunder? Or am I misremembering the timing?

Phones have had Java since 2001.

Google argued that feature phones only had Java ME, which only included a small subset of Java's APIs, in contrast to Android, which includes significantly more Java (SE) APIs, as well as Android-specific APIs. My layperson understanding of that argument was that their use of Java was transformative because feature phones running Java ME were completely different from Android smartphones.

Indeed, Google spent a lot of time making this case to the jury. I could be mistaken, but I fear this is going to be the basis of a reversal on appeal, because what "transformative" means is ultimately a matter of law (indeed, the word itself comes from a Supreme Court decision rather than the text of a law), and to me Android looks completely different from previous things considered "transformative":

http://www.nolo.com/legal-encyclopedia/fair-use-what-transfo...

When you look at Android and then look at previous phones with Java and apps on them it's hard to argue it isn't transformative. The difference between SavaJe and Android is night and day.

Oracle tried to argue that, with seemingly limited success. Bringing up SavaJe didn't help them. It clearly wasn't equivalent to Android in any way.

JavaME had existed for years. There were a few very good apps (Google Maps was great, as was the Facebook app). Given that even the cheapest phones included it I can't imagine Sun was making any money off it.

It was a major source of licensing revenue for Sun, and one of the main reasons why historically they had been reluctant to open source Java. They were making around $200M revenue from it in 2007, which was the major source of income for their software business.

I thought this part of an Ars Technica article[0] on the trial was pretty telling:

"On cross-exam, a Google attorney brought up a graph from an internal presentation by Brenner showing "aggressive" and "conservative" estimates of what would happen to Java licensing revenue from 2007 to 2010. The graph's "aggressive" line showed a decline from around $140 million per year to about $105 million, and the "conservative" line showed a decline from the same starting point to around $50 million.

The graph was created before the launch of Android. Google's point was clear: Java was in decline, Android or no Android—and its executives and salespeople knew it."

It doesn't really matter what the numbers were though. They would have been higher had Google paid Sun for a Java license.

[0] http://arstechnica.com/tech-policy/2016/05/suns-head-of-java...

That's not relevant to fair use analysis. What's relevant to fair use analysis is if Java's market would have been bigger if Google neither bought a license nor produced Android. Obviously, any unlicensed use of a copyright protected work is going to reduce the caller of the protected work compared to the exact same behavior coupled with paying for a license, but that's not what the market effect factor is about.

You miss the case where Google had produced Android with a different platform (LLVM, Objective-C, or their own language). Since Java was in decline on mobile, it should have just entirely ripped Java from the mobile market.

I don't miss that case, I just don't believe it's the relevant one for fair use analysis. Though, if it were, that would weigh even more heavily in Google's favor.

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