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Comment by Analemma_ | Hacker News Reader

Companies don't bother with principled consistency, and so I wouldn't expect any from Microsoft if this goes Oracle's way. It's totally possible that Microsoft thinks APIs being non-copyrightable is good for them on net, but that if SCOTUS decides otherwise that they might as well go crush WINE anyway since they now have the means.

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What would the benefit to MS be to crush w WINE. They have made a big effort to rebuild their reputation with developers, and WINE doesn’t really hurt their bottom line. They have no incentive.

The risk of WINE or ReactOS becoming, or contributing to, competitors. Proton is a fork of WINE by Steam that is used to run Windows games on Linux, and it works very well. One day in the future it might make sense to go after Steam, or CodeWeavers.

You’re suggesting that Microsoft may choose not to crush WINE even if they had the right, because some other incentive holds them back. I think GP agrees, and is merely saying that Microsoft’s current philosophical beliefs would not likely be that incentive.

It will depend a lot on how wide a decision SCOTUS makes, and that fair use is interpreted in a very different way. Wine is not a windows replacement nor can Microsoft really show any negative impact on the market for windows license sales because of Wine. Wine (recursive backronym for Wine Is Not an Emulator) is "simply" a compatibility layer that convert between Windows ABI calls into native linux system calls. Wine is not an operative system replacement for windows, and wine user base compared to windows is comparable so tiny that any argument based on market impact should be taken with a lot of skepticism.

In addition I would be a bit surprised if wine has copied 11000 lines of header files from windows, arranged identically to Microsoft Windows source code.

Wine allows running windows applications without windows lincense, directly taking revenue from Microsoft who arguably invested a ton in making documentation and developer tools to make those applications.

It seems you are arguing mainly because the user base is so much smaller it does not count. The law does not work that way.

Windows SDK contains tens of thousands of lines in header files for those DLLs Wine implements. Not saying Wine copied them outright, but the opportunity is clearly there.

"The fourth factor measures the effect that the allegedly infringing use has had on the copyright owner's ability to exploit his original work. The court not only investigates whether the defendant's specific use of the work has significantly harmed the copyright owner's market, but also whether such uses in general, if widespread, would harm the potential market of the original. The burden of proof here rests on the copyright owner, who must demonstrate the impact of the infringement on commercial use of the work."

It would be up to Microsoft to demonstrate that Wine impact the market for Windows license sales. I strongly doubt they can do that regardless how much they have spent on documentation and developer tools. Wine does not replace the need for an operative system, and if the usage ever become widespread enough to harm the market for windows then developers would just support programs natively for Linux, side stepping the need for wine.

Wine is not a market substitute for Microsoft windows, which is the first consideration that courts look at. Courts would then look if there is a potential existence of a licensing market (ie Microsoft licensing out the ABI) which again does not seems very likely. Failing those two tests it would be a rather uphill battle for Microsoft to demonstrate Wine impact on the market for Windows license sales.

Yet, if you pick the right lines out of the WINE source-code, it will look eerily similar to the Windows source-code. And not by coincidence: if Windows' code had looked different, WINE code would have looked different too. And the important thing is that the Windows code could easily have looked different. It was a creative process that led to what it was. WINE is a derivative work.

Copyright law needs to be clarified to allow this without licence. Just like you're allowed to refer to a competitor's brand if you follow the rules in trademark law. It's one of those things where you think legislation should be rushing to fix it to remove uncertainty. Instead, a good chunk of senators is comfortable letting the Ellisons of this world make other people's life harder in negative-sum games.

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