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Comment by teruakohatu | Hacker News Reader

> "Google copied approximately 11,500 lines of declaring code from the API, which amounts to virtually all the declaring code needed to call up hundreds of different tasks. Those 11,500 lines, however, are only 0.4 percent of the entire API at issue, which consists of 2.86 million total lines. In considering “the amount and substantiality of the portion used” in this case, the 11,500 lines of code should be viewed as one small part of the considerably greater whole. As part of an interface, the copied lines of code are inextricably bound to other lines of code that are accessed by programmers. Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment."

Sanity prevailed! This judgment could have had devastating consequences and turned software development into a copyright nightmare.

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I'm glad about this outcome, because I agree the other outcome would have had a devastating effect on software development.

I also appreciate this fair use argument, especially when you point out the code in question was 0.4% of the entire API.

Still, I'll always struggle with the idea that "the amount and substantiality of the portion used" when copying an interface is comparable to copying an implementation. The interface is, intellectually, the substantially heavier, "bigger picture" component of the API than the implementation. In my view they are apples and oranges.

So, I'm glad this was the outcome. But I'll always feel like there was something wrong with Googe taking the Java SE interfaces and using them like they did, gratis.

I can recommend focusing on Justice Thomas' dissent, which contains a section related to this topic. I believe Justice Thomas agrees with your assessment, and he raises concern that the SCOTUS has essentially made APIs practically uncopyrightable (in that they will 100% of the time find that it's fair-use to use them). I actually disagree with him, but only in one sub-category: I think a SCOTUS ruling would be harder to predict in a situation where someone 100% copied an API that had no implementation. That removes the mitigating factor of what portion of the work was used.

Ironically the most protected APIs may be the ones nobody implements.

That’s a good thing. The ability to copy an API allows more competition, helps improve services as others provide similar functionality, and forces improvement because it becomes easier to migrate from one service to another.

One thing I do see happening is that sensitive and expensive to develop algorithm internals may be prevented from leaking into APIs. I, again, don’t see this as anything other than a win for devs. An API is fundamentally used to get stuff done, if a developer doesn’t need to know the implementation details I overall think this is a win for the developer using the API.

Thomas is almost always on the wrong side of history. If you want your API non copyrightable, don't make it public. Problem solved.

I think you mean “If you want your API copyrightable, don't make it public”, not “If you want your API non copyrightable, don't make it public”

Now, how do you let third parties program against that non-public API? Would only showing it to licensees be a legal way to do that?

If so, and if the API becomes popular, I don’t see how to prevent those licensees from leaking the API to the world, say through small code snippets on Stack Overflow.

I believe Justice Thomas agrees with your assessment, and he raises concern that the SCOTUS has essentially made APIs practically uncopyrightable (in that they will 100% of the time find that it's fair-use to use them).

That would seem a reasonable outcome, for much the same reason that copyright not protecting the appearance of fonts under US law is reasonable. Yes, it is overriding copyright protection for a creative work that would otherwise apply. However, it does so because a greater good is served, in this case by ensuring that interoperability cannot be encumbered, something which (as the majority opinion alludes) goes against the very purpose of copyright under US law.

> Yes, it is overriding copyright protection for a creative work that would otherwise apply. However, it does so because a greater good is served

One could argue that this is for the judicial branch, not the legislative branch, to decide.

The judicial branch did decide this.

Sigh, I made a mistake mixing up the order of judicial and legislative in the sentence.

The main legal basis for the majority opinion seems to be fair use, so isn't the system operating as intended? The legislators set out a principle of fair use in statute. The court applied that principle in the context of this specific case.

Had Justice Thomas' opinion prevailed, most everything within POSIX was originally copyright by AT&T USL as part of System V, and would be owned by the current holders of that intellectual property.

Anyone using fork(), stat(), open(), or other basic parts of the UNIX development environment would be in violation.

Those copyrights were purchased by Novell at some point, and I believe ended up with Attachmate.

One would think that the C Programming Language is also covered by copyright via the K&R books, which would put anyone using printf() in the same position.

That is truly a nightmare scenario.

> That is truly a nightmare scenario.

Absolutely, but courts are supposed to interpret the law, not rule whichever way avoids nightmare scenarios.

The risk of going too far in that direction (and this is by no means the first case in which SCOTUS c̶l̶e̶a̶r̶l̶y̶ may have rationalized a decision for pragmatic reasons) is that it makes the court more corruptible. I am glad the majority ruled this way, because I agree that it leads to a better outcome in this case. On the other hand, any departure from a pure interpretation of the law is very dangerous, because it normalizes the more-corruptible mode of operation, and that can lead to another kind of "nightmare scenario".

If it reaches SCOTUS, it means the law is already ambiguous the way its written and that no one interpretation is obviously the correct one.

You would certainly hope so, but that logic just passes the responsibility to interpret law faithfully onto the lower courts, which are also perhaps more easily corrupted.

> On the other hand, any departure from a pure interpretation of the law is very dangerous

You should read the law in question. This would be Section 107 of the Copyright Act, which defines "fair use". It's extremely vague and is best interpreted as a set of considerations that the courts should take into account so that they can handle situations like this one on a case by case basis. If Congress wanted to be more prescriptive, they could (ETA: and if they become unhappy with the courts' decisions they still can in the future), but I think that would lead to worse outcomes.

Makes sense, and I am definitely not an expert on fair use. I'll cross out "clearly" in my aside above.

I was really just responding to the implication that SCOTUS did the right thing because "it would be a nightmare scenario" otherwise.

> courts are supposed to interpret the law

The law also states that copyright's purpose is to stimulate progress of the arts, and that's why fair use is possible. Interpreting the law also means establishing the limits of fair use.

Good point.

No, fair use is possible because of the First Amendment. While it is now adopted in statute, the statute was codifying a Constitutional limit that courts previously found in copyright protection grounded in the First Amendment, not the Copyright Clause.

But, still, yes, determining the scope and applicability of fair use is part of applying the law.

Ah, I had heard of the first amendment thing but I thought it was why government work must be in the public domain (i.e. putting it under copyright would prevent reproduction and therefore infringe first amendment rights).

if I remember my history correctly Google did not, Android was purchased by Google by that time the choice to use Java SE as the API was already made

While true, it's not particularly relevant. When you acquire a company you're taking on its liabilities along with its assets.

There's a line in here that says "In the 1990s, Oracle created a programming language called Java." that is funny on its face, but is written this way for the exact reason you're talking about.

To their credit, they are explicit (in a footnote I believe) about equating Sun and Oracle.

Yes, it is one of the first footnotes.

But the comment was not really about liabilities, but even in that context I think the history is still relevant.

Rewriting history the way we do in the context has all kinds of problems associated with it

With that logic, Oracle didn't create Java either. It was purchased by Oracle from Sun in 2009, after Google had already created the Android API.

Substantiality was only one factor in the decision. There were lots of others, such as raison d'être of copyright, "promoting the progress of science and art". Because allowing copying of APIs is more important to the "progress of science and art" than the economic impact on the creator of the API, APIs are thusly not copyrightable.

> APIs are thusly not copyrightable

This is NOT what the Court found. At the very top of the Opinion, it says "we assume, for argument’s sake, that the material was copyrightable. But we hold that the copying here at issue nonetheless constituted a fair use."

Fair enough. I had taken that to mean they were assuming a given to then prove the negative.

It's one thing to steal algorithms but for interoperability to remain possible it is necessary for API to remain "fair use". I can't agree with you that this is a bad thing for them to copy Java SE interfaces.

I understand we can’t have copyrights on APIs, but something about it just doesn't feel "fair" to me, though.

Fair use makes sense to me when you're talking about the table of contents of a book. If I take the table of contents of a famous novel and write my own chapters, it makes sense to me that the owners of that book shouldn't be able to sue me. No one is going to read my book instead of Faulkner's. There's no equivalency there.

If I take an API (the table of contents equivalent of software), that's seems totally different, if not the opposite really: the interface is what matters, and the implementation is secondary. If you apply the analogy to a novel, it's as if I took the table of contents of a famous novel, write my own chapters, and it'll be equivalent to the famous novel. My chapters could be slightly "worse", but readers wouldn't necessarily notice a difference between my version or Faulkner's.

> the interface is what matters, and the implementation is secondary.

But that's kind-of the point IMO - if we take a free-market approach to this, copying (or sort of "standardizing" onto) an API allows for more innovation, since it's not a prohibitive up-front cost to switching the implementation. We don't copyright (or I guess patent, and I know they're different) the user interface of a fridge. Any fridge can have 2 doors and a slide-out freezer, but it's the actual implementation that would matter to a user - how energy-efficient it is, how cold it can get, extra conveniences (maybe akin to API extensions) like a water/ice dispenser that still can be "copied"/used by other fridges. And I'm sure that maybe those "interfaces" were patented originally, but it seems absurd now that they're so commonplace to restrict who can implement them.

If you copied the table of contents of a famous book and happened to make the book significantly better then there's a chance people would read your book instead of the famous one. Should the original owner be allowed to sue you in that case?

I think the same applies for APIs. It's only taking away users from the original implementation if the new one is better.

> especially when you point out the code in question was 0.4% of the entire API.

Honestly, the fact that it's 0.4% is a BS heuristic. What if they spent a year and all they did was refactor the code so that codebase was 1.43 million lines instead of 2.86? Would that mean these lines of code are 2x as powerful?

Lines of code is an indicative heuristic, but not a deterministic one.

I think they took "line" to refer to a Java method signature/prototype, so even if a method signature has each parameter wrapped to its own physical line on-disk, the whole method declaration still counts as "one line".

...at least I hope that's what they did.

> This judgment could have had devastating consequences and turned software development into a copyright nightmare.

It’d sure have made the practice of taking someone else’s API and re-implementing the innards a lot more interesting:

https://docs.oracle.com/en-us/iaas/Content/Object/Tasks/s3co...

The WINE and ReactOS guys must be cheering!

It's a win for all open software. Torvalds and Stallman didn't ask Bell's permission before re-implementing Unix

Why was this comment downvoted? Does GNU/Linux not largely reimplement proprietary Unix?

Yes why? Doesn't it?

It does. There are some who would argue that the Linux copyright fight is already resolved because of the SCO suits, but that's wrong because

A: some of those suits are still ongoing, and

B: the suits never alleged infringement based on the API alone, SCO was claiming that Linux copied functional code in multiprocessing modules (we don't know which functions because they demand secrecy, even though it's open source).

Not even SCO, trolls that they are, were insane enough to claim that the APIs themselves are copyrighted.

It's also good that Breyer wrote this opinion, given that he was one of the two judges who dissented in Eldred v. Ashcroft almost 20 years ago[1]. Lessig called that opinion "perhaps the best opinion [Breyer] has ever written"[2] in his retrospective on the case.

[1] https://en.wikipedia.org/wiki/Eldred_v._Ashcroft

[2] https://www.legalaffairs.org/issues/March-April-2004/story_l...

Were there any Breyer counterfactuals?

> Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment.

Also known as compatibility and interoperability. I'm so happy to see that judges understand their importance.

> Also known as compatibility and interoperability.

Actually, not really. Both this ruling and the lower courts' rulings in the case operated under the strange assumption that Android was not interoperable with Oracle Java, leaving programmer familiarity as the only reason Google copied the APIs. For example, in the Federal Circuit ruling that the Supreme Court just overruled, they complain that Google "points to no Java apps that either pre-dated or post-dated Android that could run on the Android platform". True; but of course third-party libraries often can run on both Android and Oracle Java, and their importance seems to have been lost on everyone involved in the case... including Google's own lawyers.

Thankfully, Google won anyway, so any defendant in a future case who can make a better interoperability argument will be in an even stronger position.

Read Thomas' dissent, it'sabsolutely insane. He says how those 11k lines are basically 97.5% of Java's entire usefulness, and billions of dollars of value to Oracle from an Amazon deal. Absurdity.

Thomas lives in a weird alternative universe where logic works differently. His dissents are always a trip.

Yeah. He's got a strange mind.

He really doesn, he and Scalia were the reliable crazy uncles of the court. Looks like Alito is trying to take up Scalia's mantle. I sear to god if Thomas had to rule on a runaway slave he'd rule for the slaveholder.

I don't agree with this.

I _hated_ Scalia while he was on the bench. I fundamentally disagreed with him on a significant amount of his opinions.

Their actual opinions though are of such a different quality to me. Scalia's opinions I could absolutely follow the logic, and at times I found myself sometimes dispairing as I became convinced he might be right on an issue. Essentially, Scalia's logic usually felt on point to me, we just had deep axiomatic differences in how the law should operate and how the constitution should be applied to laws.

Thomas, though, I sometimes have a hard time understanding the argument he's presenting, and sometimes have a "how do you even believe that" reaction to his opinions.

Again, I think I disagreed strongly with Scalia opinions about as often as I do Thomas opinions, I just think they were for very different reasons.

++ I almost always disagreed with Scalia, but he was a master legal mind in his written opinions. Like, they're not even comparable to Thomas or Kavanaugh, IMO.

I agree Scalia wrote very tight opinions, but his personal biases were in such intense conflict with the actual constitution that the internal consistency just dosn't make it fly for me. But I see your point.

What Amazon deal? Did Amazon pay Oracle to license the Java API?

Yeah for the original Kindle. It's brought up in the court's decision.

I agree with the majority here, but how is that crazy? One major point in the fair use analysis is that Android (for smartphones) did not directly compete with Java SE (for laptops and desktops). Showing that Android is a viable alternative for other Java uses, and did indeed supplant other Java contracts, seems relevant.

An alternative take, which I'm sure won't be popular, is that now, with an interpretation taken to the extreme, a megаcorporation can basically steal your (let's say a small startup's) platform (in case you refuse to sell it for ethical or some other reasons), by re-implementing it and investing much more resources which you don't have, to make it more attractive to customers.

I'm ok with either decision, but, depending on how this precedent going to be interpreted, it could have far reaching consequences, maybe unintentional/undesired ones too.

Ho you mean Amazon AWS?

I think that's always been a threat. If a large business decides to target an area you develop a system for, you're basically out of luck unless you have some novel IP that's difficult to replicate. You really have to have something niche, patent it, etc. otherwise you just roll the dice that massive entity X doesn't steamroll your livelihood out of business.

Well, before this decision in a situation like this you would at least be able to retain your existing customers who are already invested in your platform, due to API incompatibilities etc, but with the ability to painlessly re-implement platforms the large business would take your existing customers too, and reuse the platform momentum that you've built.

So companies would have to compete on pricing, availability, customer service etc etc instead of by being first to create lock in?

Seems like a net benefit to me :-)

It stifles innovation and rewards big business. Why risk developing something if it will be taken from you? A winner-take-all kind of situation. It leaves little room for the platform's authors to generate revenue other then hiring themselves to said big business, and probably at depressed rates.

Because you can always outcompete them?

No, it is not a first class ticket to unicorn valuation, but it is trivially easy to differentiate

- from Google by just providing any kind of customer service to all paying customers

- from AWS and GCP just by allowing on premise solutions

- from Facebook by not reliably failing to protect and/or actively exploit your customers all the time

- etc

Need proof? See Slack, WhatsApp and Instagram (before the acquisition), Basecamp etc etc.

Happens today, like AWS Elasticache and AWS Aurora. I do think you're right in that it will make those decisions easier. Particularly for AGPL/GPL things. Now they can be reasonably sure that cloning the end user facing API bit is "fair use".

Thats what patents are for. API is like designing your own custom plug to your device. You can't copyright that plug design, you can patent it its novel and new.

And if you are opposed to algorithmic/software patents it would be an unpleasant choice to make. Also, copyright is probably (I'm not sure) easier/cheaper to litigate, because it's much more evident when something is copied, compared to divinating whether something violates a patent or not.

>An alternative take, which I'm sure won't be popular, is that now, with an interpretation taken to the extreme, a megаcorporation can basically steal your (let's say a small startup's) platform (in case you refuse to sell it for ethical or some other reasons), by re-implementing it and investing much more resources which you don't have, to make it more attractive to customers.

GNU/Linux, a free reimplementation of AT&T's Unix interfaces, is largely why commercial Unix isn't really a thing any more.

Yes, but the situation is a bit different -- the majority of UNIX rights owners were actually promoting open standards through initiatives like POSIX, X/Open, so the re-implementation did not violate the copyright. As far as I know SCO's suits were not about interfaces of any kind, and the Linux kernel uses C standard library and other posix compliant libraries as an interface.

Question from a layman: Does "interoperability" as a concept have any legal relevance here? Like focusing on programmer skills seems kind of beside the point, which is really for two pieces of software to be able to interoperate.

Also speaking as a layman, but yes. Fair use has, as one of its four factors, the purpose and character of the use, to which interoperability is of definite relevance. It explains -why- the API was reused, even if the internals are entirely different. Not because it saved Google work, or there was some sort of competitive edge against Java SE to be gained by doing so.

Yes, reverse engineering for the purpose of interoperability is one of the things explicitly allowed by laws such as DMCA.

The decision talks about "interoperability" as a general concept, but neither the DMCA nor reverse engineering is at all relevant to its legal reasoning.

Interoperability does have legal relevance, but because of programmer skills. Part of the fair use analysis turns on the legitimate goal of allowing programmers to use their skills in Java on the new platform.

IAAL but IANAIPL and most emphatically IANYL

IANAL: Merger Doctrine is closest thing I'm aware of.

There's already Ninth Circuit precedent in favor of it. For example, Sony tried to sue two commercial PlayStation emulator developers and the Ninth rejected the lawsuit on all counts (and one of those cases is even cited in this opinion).

The court has to talk about programmer skills because Android (at least, the versions before they switched to OpenJDK) was not entirely source- or binary-compatible with Java SE programs. In fact, the reason why they couldn't license Java SE was that Sun insisted on Android being locked into compatibility in the first place. So this entirely represents an expansion of existing fair use precedent: now, not only does fair use apply to full reimplementations for the sake of interoperability, but also partial reimplementations made for the sake of programmer convenience.

Yes, interoperability is relevant, because it affects the necessity of copying that particular code rather than making one's own substitute, which in turn affects fair use.

But Google's lawyers (inexplicably, in my opinion) failed to talk much about the fact that many Java libraries are interoperable between Android and Oracle Java, leaving the courts to think only in terms of full applications which are not interoperable. Thus the courts have treated this case as if the only benefit to Android's reuse of Java was programmer familiarity.

Thankfully, Google won anyway, so any defendant in a future case who can make a better interoperability argument will be in an even stronger position.

Edit: For example, in the Federal Circuit ruling that the Supreme Court just overruled, they complain: "Indeed, given the record evidence that Google designed Android so that it would not be compatible with the Java platform, or the JVM specifically, we find Google's interoperability argument confusing. [..Google] points to no Java apps that either pre-dated or post-dated Android that could run on the Android platform." [1]

[1] http://www.cafc.uscourts.gov/sites/default/files/opinions-or...

Google didn't argue on interoperability since that would have torpedoed their core arguments that Android is a transformative work creating a new market outside of, and different from, Sun Java Standard Edition.

To argue interoperability Google would have needed to copy the entire JAVA SE API.

The key difference is that Java SE (designed for desktops) API was considered by Google mostly not required on smartphone/mobile devices envisaged for Android. Sun would only licence Java SE complete (Sun was the one wanting complete interoperability).

To the extent the concept of interoperability enters into it, it was on the human side; the arguments were about leveraging existing programmer knowledge to the extent that Android's requirements were shared with and common to Java SE.

> To argue interoperability Google would have needed to copy the entire JAVA SE API.

Only if Google wanted to argue interoperability as defined by Sun/Oracle. I've never seen a coherent argument why Sun's TCK should be considered the sole authority on what degree of interoperability should have legal significance in this copyright case, particularly given that Sun's TCK was part of their trademark licensing program.

And there are obvious reasons why a court would shy away from letting something like Sun's TCK be used as part of a significant legal test; for example, it's really awkward for legal purposes to define something as copyright infringement while it's a work in progress, but it suddenly becomes okay as soon as it attains the status of being 100% compatible and bug-free. It's also not clear how the law could reasonably handle a definition of interoperability that Sun/Oracle can unilaterally make into a moving target and add arbitrary requirements to.

I wouldn't celebrate a victory yet. As is often the case, the court's choice of tests simply will serve as a blueprint for others on how to avoid themselves being caught in the same kind of result.

Based on this court decision, it's apparently fair use to lift someone else's API and use it to jumpstart programmer familiarity with your product, if the author of the API previously tried to achieve success in that narrowly-construed, retroactively-interpreted exact same market segment and wasn't very successful.

I see a few things coming out of this. IP holder companies will become even more common: they will be used to hold copyright to one API and license it out to customers -- including independent companies that you would currently recognize as part of the same platform.

But because the IP holder does not provide an implementation and therefore does not 'compete' in a market segment, any unlicensed use of it is necessarily infringing: there's no innate functionality with which one can interoperate under the doctrine of fair use.

> IP holder companies will become even more common: they will be used to hold copyright to one API and license it out to customers

Not after this precedent, which says that APIs are free.

What will happen: Intel licensing the i86 instruction set will not be possible from now on, same for ARM.

Those are protected by patents, not copyrights.

This ruling doesn't really change anything with respect to CPU instructions. The fair use defense doesn't cover patents.

Patents are what are generally what is used by Intel, etc to protect (and license) new CPU instructions and provide protection for novel ideas/inventions for up to 20 years.

Copyright generally protects specific expressions/implementations of an idea and last up to 95 years for corporate patents, or 70 years + the lifetime of the author for individual patents.

For completeness there is also trademarks which cover names and logos which can last indefinitely, as long as they are in commercial use.

The text of a CPU instruction specification would be covered by copyright, the algorithm for implementing the instruction by a patent, and the branding (ex: MMX) by trademark.

Say one black-box reimplements x86? Say one makes a "transformative work" with a number of extensions?

I fail to see why an ISA is fundamentally different than a standard library.

> I fail to see why an ISA is fundamentally different than a standard library.

As GP said, the difference is whether it's patented. If Sun had patented parts of the API (or algorithms necessary to implement it), then Oracle would have another weapon against Google even after Google was granted a fair-use defense.

Sure I'm not disagreeing with the legal history, but on what merits is one patentable, and the other either fair use to reimplement or not even copywritable!!

I could understand Intel having a CPU patent for specific CPUs, but an specific ISA?!

A really interesting test case would be to implement an isomorphic encoding to x86 with same instruction widths and what-not such that it's trivial to convert binaries from one to the other, and modify compilers (especially the JIT ones).

We shouldn't necessarily assume that the x86 patent war chests are legally sound. Rather, Intel and AMD have a mutually assured destruction cross-licensing arrangement and they need each other to stay viable to fend off antitrust regulators. But they would prefer not risking an unfavorable precedent by actually wielding their patents in court, so their deterrent operates more on the promise of protracted and expensive litigation, rather than on the promise that Intel would actually win against an upstart CPU vendor.

> Not after this precedent, which says that APIs are free

No, it doesn't. It says the "fair use" doctrine covers copying an API's "task calling" system, i.e. nomenclature and ontology.

Wow, that's an insanely brilliant evil business plan. And plausible, too.

The copyrightability of APIs will have to be determined.

Yeah it sounds like they were being sued over building a compatibility layer. That's nuts. Good thing the right decision was made :)

Can't this argument be used to copy the x86 interface and avoid paying license fees to either Intel or ARM for the instruction set?

The word on the street is that is primarily protected by patents, which explicitly protect against from scratch competing implementations, unlike copyright protection which only protects against verbatim copying of the original work.

On the plus side though, they only get 20 years of protection. x86-64 in it's original form should be up for grabs pretty soon here.

https://en.wikipedia.org/wiki/Influence_of_the_IBM_PC_on_the...

Yes... Sanity prevailed, no thanks at all to SCOracle.

It is fascinating that code is now being measured quantitatively. Number of "lines of code".

My first manager, when I was a young engineer at Raytheon would like a word.

It's 2021 and I still come across managers that use this as a metric.

It may be a poor metric, but it's not like we have any other metrics to measure code by.

Well, "dollars / year", if you work in an industry where you can directly A-B test against revenue, but I think most of us are happiest not knowing whether our particular lines of code are EV-positive.

we absolutely have other metrics. Features, Stories, Ease-of-use, Dev Friendly, Qualitive Value. LoC is simply broadcasting how complex either A) the problem is (fair) or B) how you've made it (not fair) - most fall into the latter camp.

Code bases like kubernetes come to mind for LoC far exceeding its value. Code bases like Quake3 come to mind for LoC that provide tremendous value. Every line is an explicit decision to improve the code or make it worse.

Refactoring a system to be generic and re-usable, for example, would reduce LoC yet provide tremendous value. If I were her manager, would I deduct points for -2000 LoC? Would I praise her for taking copy-pasta and making a pattern? I know which I'd choose.

I suppose it makes sense from the perspective of copyright law, which protects artifacts. After all, one could say the same for quoting from a famous literary work .."ha now they're valuing literature in terms of number of words of prose!"

The dissent clearly highlights the fallacy of the ruling, where it discussed the importance of the "heart" of the work, rather than the portion of exact lines copied.

Aka, that you could clone Harry Potter's plot, characters, and story while not copying each word of the book verbatim, and it still be a copy of Harry Potter.

They do state, copy-write isn't the same in the programming world. Programming is always functional in nature, unlike a book.

>Aka, that you could clone Harry Potter's plot, characters, and story while not copying each word of the book verbatim, and it still be a copy of Harry Potter.

Would that be a copyright infringement? Probably just trademark infringement at that point?

It would be trademark infringement to use the names, it would be copyright infringement to use the meaningful content of the plot and story.

Not sure that’s correct.

You could write a story about a boy of humble origins who is whisked off to a special school, discovers he’s special, and fights evil. There aren’t that many original plots, after all....

You’ll only get into trouble if the main character is called Harry Potter of 10 Privett Drive, where he resides with his mother’s sister and her awful family, and he later attends Hogwarts, etc.

While true, there's been (imo wrong, as it breaks the Idea–expression dichotomy) expansion of copyright to things like characters[1].

[1] https://en.wikipedia.org/wiki/Copyright_protection_for_ficti...

Copyright covers derivative works. If a story is plainly the same with names changed, the original copyright extends to it. This can be applied to the point of absurdity in music copyrights.

The derivative work has to be literally derived from the original "such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted." (per 17 USC 101). https://www.law.cornell.edu/uscode/text/17/101

The merger and scenes a faire doctrine permit lots of overlap in terms of themes, tropes and set dressing. You could certainly write a coming-of-age story set in a magical boarding school; indeed, Harry Potter is neither the first nor the last such novel. One of the classic cases is Walker v. Time Life. The two works, which were found to be non-infringing, both start with a double murder of two cops (one Black, one white) in the South Bronx, both feature demoralized Irish-American cops, and both have similar tropes (rats, cop-talk, etc). A reviewer might reasonably describe it as derivative (and a few did, I think), but not legally so.

What you probably couldn't do is publish the (non-parodic) story of Perry Hotter and his substantially-similar adventures at Pigworts, though that's also absolutely spoiling for a trademark fight.

Music gets weird because it a) seems like there are a lot of possible note sequences but b) there aren't really.

It’s generally not trademark infringement to refer to the actual thing the trademark refers to (”nominative use”). This would actually be a claim unlikely to succeed unless you are intentionally claiming that are writing the true original Harry Potter stories.

Tell that to the Sir Arthur Conan Doyle estate :)

I don't know if their beef is with copyright vs trademark.

I know of one legal blogger who complains that certain copyright lawsuits really ought to be trademark suits (e.g., https://scrivenerserror.blogspot.com/2007/11/accio-lawsuit.h... , https://scrivenerserror.blogspot.com/2005/05/fan-fiction-tan... , https://scrivenerserror.blogspot.com/2005/05/fan-fiction-end... , https://scrivenerserror.blogspot.com/2005/05/fan-fiction-tan... ). But the courts generally play along and accept “copyright” suits that seem to be judged on trademark principles (but punished according to copyright law).

Would it violate copyright to take a painting's colour palette and produce a different work with it?

To use your Harry Potter comparison, it would be like asserting that Magic Boy Adventures violates Harry Potter's copyright because one of the characters in MBA was similar to the Neville Longbottom.

Or in other words, a tiny fraction of the original work would essentially be allowed to monopolize the entire space of works involving magical kids going to school.

(And this is why Justice Thomas is widely regarded as the least competent justice of at least the past half century.)

Incorrect, because as Justice Thomas states, the "heart" of the work being copied is at issue, not a given percentage. Neville Longbottom is obviously not the "heart" of what a Harry Potter book is.

Presumably the issue would be if one wrote a book substantially about the same character as Harry Potter who went through the same plot events in significant detail, but only 0.4% of the sentences were identical and the main character's name was Barry.

Incorrect, because the "heart" of the work is not being copied, and therefore, the entirety of Justice Thomas' dissenting opinion is just pointless blathering.

Thomas would allow copyright on code regardless of any creativity. This would destroy the software industry. Anyone who is first in time would monopolize entire swaths of software functionality.

And that is what he wants. Thomas is an ideologue, and his sole goal in allowing the copyrighting of code is to destroy the tech industry, which he views as hostile to Republicans. You can see it in the logic of his dissent, which would require the court to override decades of settled case law all supporting the proposition that code and other functional expression. In order to justify his nonsensical arguments, Thomas is forced to come up with an entirely new category of code that is not supported by legislative history or judicial history. Thomas' only justification for this category is...that it's "not fair" to a multi-billion dollar company that the non-copyrightable portions of their code were copied by another corporation. Pity the poor multi-billion dollar corporation, they just can't ever get a break.

Even he notes that his dissent is nonsensical when he admits "declaring code is 'inherently bound together with uncopyrightable ideas.'

> Pity the poor multi-billion dollar corporation, they just can't ever get a break.

This would sound like a convincing position if the company abusing them wasn't a trillionaire corporation. Oracle is literally "the little guy" here.

Now their positions are greatly reversed. But at the time of the copying in 2005, Oracle was many times Googles' size.

This case began in 2010 as Oracle attempting to smother a similarly sized competitor...after Oracle acquired the actual creators of Java.

"Harry Potter and the methods of rationality" - affly known as HPMOR - https://www.hpmor.com/

Now? I've personally heard quantities of code measured in "lines of code" (or, thousands of lines of code-- "K-LOCs") going back to the mid-90's. An acquaintance who worked for IBM in the 70's said it dates back at least that far (measuring developer productivity in the "K-LOCs" they produce).

See Mythical Man-Month published in 1975 - https://en.wikipedia.org/wiki/The_Mythical_Man-Month

It's been going on since the 1960s (maybe longer).

Personally, I think the best code is the code I don't write.

A significant part of my refactoring, is removing as much code as possible, by tweaking algorithms, deriving common base classes, and removing unused code branches.

Every line of code is a potential bug. The less code, the less bugs.

Negative lines of code are a good day's work.

https://www.folklore.org/StoryView.py?story=Negative_2000_Li...

Love that story!

There's a number of times I added significant new function to programs while ripping out great gobs of code.

My favorite was replacing a function call with a single character constant.

Then there were two employers who demanded code proliferation (management incentives tied to KLOCs?). Didn't last long at either place.

https://www.youtube.com/watch?v=GqFYsvxHZOs&t=1205s

(start at 20:05 if timestamp fails).

This Ballmer clip is the first thing I think about when I hear K-LOC.

How else do you determine what amount infringes? One of the four factors is "The Amount or Substantiality of the Portion Used".

Objective measures are better suited to uniform application of justice vs subjective ones.

I'm actually ok with that metric in this case as it's easy for judges to understand and it's actually a good proxy.

Number of lines is actually a pretty good (though imperfect) measure of how difficult a code base is to work with, which is why many developers are delighted by the opportunity to delete code.

LoC is an old and classic software size metric. It's not perfect, but not completely useless either.

So if I copy the entire A volume of Encyclopedia Britannica, but leave B-Z alone, I'm good?

No but it’s okay to copy all the entry names in the encyclopedia and fill in the content yourself

This is an excellent metaphor but now I am curious, is it literally true?

Probably not? The crux of the opinion seems to grant fair use because it enabled a "new and transformative use," which is a box that a different line of encyclopedias doesn't seem to check.

Yes.

Two distinctions come to mind: the encyclopedia text doesn't have a "functional purpose" in the same way as the implementation of an API does, and thus there isn't a market of users who have pre-existing skills with encyclopedia entries that they could put to use if the entries were copied to another platform. In my non-lawyerly reading of the first bit of the decision it seemed they leaned on those aspects quite a bit.

Would have to be tested in court.

Certainly, the fact that competing encyclopedias exist, and have for hundreds of years, with > 99% identical entry names (but of course, substantively different content), and that predicated not on any given invention or IP but rather the common use English language, would, I think, make the judges rather reluctant to rule differently even should there be 100% match in entries.

Yeah I was giving an analogy similar to what Google is doing, but I am not sure of the legality of the exact case

Wikipedia already does this. For instance, there is currently a list of Australian Dictionary of Biography articles missing.[1]

I maintain a reflist of women in the ADB who have no Wikipedia article.[2]

1. https://en.wikipedia.org/wiki/Wikipedia:WikiProject_Australi...

2. https://en.wikipedia.org/wiki/User:Chris.sherlock/Australian...

I think all entry names in encyclopaedia would fall under collection of facts that is not copyrightable... Same goes for recipes. I don't see how list of words existing and being used would qualify as work under USA copy-right. The entries themselves though are likely in many cases protected, but likely not all.

are you clerking for Justice Thomas, perchance?

So if Java had just bloated their code and those apis code footprint represented a larger % of the overall they’d be guilty? Or if Java trimmed a bunch of non essential packages into modules/extensions Google would be guilty

It seems to me the judge is saying, “the house was full of 10 tons of jewelry but the robbers only took 10 pounds so that isn’t really stealing lol “

Now the jewelry stores will have to become smaller so that there will be 1-2 jewels per store. When something gets stolen, it'll be 50-100%.

More like 10 million pages of books, Reading 10K pages does not mean one stole all the knowledge.

I think this part here is important regarding your interpretation — it‘s not just about loc

> Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment.

Who is this "Java" you're personifying?

Perhaps the measurement should have been a count of bytecode instructions rather than lines of code.

> So if Java had just bloated their code and those apis code footprint represented a larger % of the overall they’d be guilty?

Under the fair use doctrine, maybe. Fair use in the US is literally about being able to use "limited" parts of a copyrighted work without getting permission from the copyright holder. What is "limited"? It depends, but 0.4% could reasonably be called limited.

> It seems to me the judge is saying, “the house was full of 10 tons of jewelry but the robbers only took 10 pounds so that isn’t really stealing lol “

Copyright and fair use apply to the creative substance of the work (in your example, the design on the jewelry, perhaps), not to physical instances of it (the actual pieces of jewelry in the house).

Copyright and fair use is a nuanced balance between giving copyright owners the ability to restrict the actions of the rest of society and encouraging the creation of works that will more than balance out the onerous restrictions undertaken. A situation not all of us even agree on.

The class of actions classified as fair use describe situations where arguably society can loosen the reigns to substantial benefit to society without destroying the incentive to create.

A classic example would be quoting books to discuss them. The free exchange of ideas greatly enriches society while encouraging not replacing readership.

Reducing it to an analogy to physical property obscures instead of enlightens because it misses all the ways a copyright is different than a right to physical property.

> Sanity prevailed! This judgment could have had devastating consequences and turned software development into a copyright nightmare.

This judgment is the equivalent of someone taking a movie script, shooting a new movie out of it without changing a word, and the court declaring this "fair use" of the script.

Software development wouldn't have turned into a nightmare unless you decide to steal a platform. Which most people don't need to do in order to do their work.

Maybe it is the same as using a similar plot, but with 0.4% of code lines being the same I think the analogy doesn’t carry through to using a script word for word.

I don't think it's fair to compare a programming interface, which is more analogous to designing something like the plumbing architecture for a house, to a movie script, which is art. Yes, a well-written API can be considered art, but with the plumbing analogy, a "copy-cat" would just be making sure the same pipes are connected to the toilets in the same positions. What's going on under behind the dry-wall wouldn't matter.

Movie scripts and APIs aren't really comparable as you have presented them.

Bad analogy, architecture schematics are subject to copyright and you can't just take them and use them, either.

Not wholesale, anyway.

This decision suggests you could include say, the negative of the neighboring building’s facade so that the two “interoperate” in a sensible way.

People can and do steal architectural patterns all the time for reuse in their own structures. Are your getting it wrong on purpose?

Do you feel like Wine, Linux, or any web browser is also "stealing a platform" from Windows, Unix, or Netscape?

Not a great analogy. People aren't looking to make "interoperable movies". But let's play that out for a moment. Would a copy of star wars with different actors, different scenic design, different music be much of a salable product? I don't think so.

While I think it would be GREAT to see what Nick Nolte (Lucas was considering him) would have done with Han Solo over the wooden Harrison Ford, I'm not sure I care enough to sit through it all again to find out. Blech.

Actually it's been done randomly. Usually it's Hollywood remaking some not-made-in-the-us movie because they think they can do better, and failing.

I think you're also ignoring the "transformative" clause written into the fair use doctrine in the US.

...the extent to which the use is transformative. In the 1994 decision Campbell v. Acuff-Rose Music Inc,[13] the U.S. Supreme Court held that when the purpose of the use is transformative ... is more likely to favor fair use.

> This judgment is the equivalent of someone taking a movie script, shooting a new movie out of it without changing a word, and the court declaring this "fair use" of the script.

Ethics aside, as a viewer, it'd be kind of cool if this were a thing. Small-time movie makers might like it too.

Shot for shot remakes have been a thing for half a century. https://en.wikipedia.org/wiki/Shot-for-shot

In fact, they've become a fannish pastime the past few years: https://www.theverge.com/2017/7/20/16006112/revenge-of-the-s...

I think you missed the rationale for fair use.

Your example is more like rewriting GCC in Rust and then claiming it no longer needs to be GPL. What Google did would be like writing a set of stock superhero character descriptions and then releasing them under a Creative Commons license so that other movie writers could use them in their movies.

Seems appropriate to create a burner account when you are this wrong and you know it. This is why many of us would like an easy ability to block greens.

I spy an Oracle employee.

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