Jury rules Google violated copyright law, Google moves for mistrial
arstechnica.com
arstechnica.com
The judge has to determine if APIs can be copyrightable now. If the jury had ruled that Google wasn't guilty of copyright infringement of the API, then the judge wouldn't have to make that decision.
But this is arguing semantics, the problematic word being copyright violation. It goes against my intuition (and I suspect I'm not alone) to say that a violation of copyright has taken place when a usage is legal within the rules instituted by copyright.
I suppose people who associate a different set of semantics with copyright violation would have to talk about legal copyright violation versus illegal copyright violation. To me, the former is contradicting and the latter is a tautology.
Yes semantics, but in law there is an established convention with reference to these particular semantics. The term "infringement" refers to, in this context, whether or not there was copying. Fair use is a defense, wherein even if infringement is established, liability is not established if the copying isn't the sort that should establish liability.
> I suppose people who associate a different set of semantics with copyright violation would have to talk about legal copyright violation versus illegal copyright violation. To me, the former is contradicting and the latter is a tautology.
That's because the headline using terminology imprecisely. It is using "ruled" when it means "found" (juries find facts, judges make rulings); it is using "violation" when it means "infringement."
rgoddard seems to be implying that all copying of a copyrighted work is illegal, which simply isn't the case. His claim is analogous to claiming that driving at any speed is in violation of the speed limit, but if you driving under the posted limit you can use that as a defense in court.
> This means that, in litigation on copyright infringement, the defendant bears the burden of raising and proving that his use was "fair" and not an infringement. [emphasis mine]
Just like in a murder trial where the defendant clearly killed the victim, the defendant must prove that he or she acted in self-defense. That doesn't mean that self-defense is murder.
Fair use is an affirmative defense, which means that even if a violation occurred in a strict sense, that violation is excusable. It's not an "I didn't do it" argument, it's an "I shouldn't be punished because..." argument. Self-defense is a textbook example of an affirmative defense -- strictly speaking, I would violate the law by intentionally injuring or killing someone, but I can argue that I was defending myself.
The question of an affirmative defense is not even relevant until there is a prima facie case showing violation, and often the fact-finder (jury or, in a bench trial, the judge) will actually find all the facts necessary for a judgement that infringement occurred before addressing the question of fair use, partly because the answers to many questions of fact for infringement are relevant to whether "fair use" holds.
In the end, you do end up with a judgement that no infringement occurred, but along the way, you often end up with findings of fact that do spell out a "violation".
You did a good job, but I'd be interested to see how important details like this are thoroughly explained to a jury that's actually making a decision like this.
http://www.groklaw.net/article.php?story=20120430075018880
The instructions themselves look like they'd be tens of pages of text printed out. (And note that the people deciding this are specifically chosen for their lack of background in the technologies involved --- IIRC, two candidate jurors with software experience were excused, for that very reason.)
One candidate was an HP employee and Oracle objected on the ground that Oracle has a separate suit with HP. When asked of opinions about patents, the other candidate said he has his strong opinion about patents. I mean, we all do... But I think objections were justified.
Don't you agree that if you think software patents should be abolished, you should not be a juror in a software patent case?
Oracle has a pretty strong case against Google.
To address the issue of fair use and if APIs can be copyrightable:
1. Judge Alsup told Google's counsel that Google had to address the Johnson Controls decision with a view to the Java APIs.
On October 3, 1989, the Ninth Circuit held the following in Johnson Controls v. Phoenix Control Systems:
"A computer program is made up of several different components, including the source and object code, the structure, sequence and/or organization of the program, the user interface, and the function, or purpose, of the program. Whether a particular component of a program is protected by a copyright depends on whether it qualifies as an 'expression' of an idea, rather than the idea itself."
On to paragraph 13:
"Here, the district court found that the structure, sequence and organization of the JC-5000S was expression, and thus subject to protection. [...] This issue will no doubt be revisited at trial, but at this stage of the proceedings we cannot say that the district court clearly erred."
http://law.justia.com/cases/federal/appellate-courts/F2/886/...
http://www.fosspatents.com/2012/05/oracle-v-google-cant-make...
2. the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
13. Here, the district court found that the structure, sequence and organization of the JC-5000S was expression, and thus subject to protection. The JC-5000S is a very sophisticated program, and each individual application is customized to the needs of the purchaser. This practice of adaptation is one indication that there may be room for individualized expression in the accomplishment of common functions. The district court's finding of expression is also supported by the special master's report. Regarding one particular point type, the master indicated that, although it is common for process control software packages to include provisions for collecting historical data, and using various integration and averaging schemes to do so, it is unusual to implement this function as a point type, as Johnson did. This finding also supports the view that some discretion and opportunity for creativity exist in the structure, and that the structure of the JC-5000S is expression, rather than an idea in itself. This issue will no doubt be revisited at trial, but at this stage of the proceedings we cannot say that the district court clearly erred.
Copying APIs leaves no room for individualized expression.
Don't be surprised Mueller misled you. You should expect it from him.
Judge Alsup specifically told Google's counsel to address the Johnson Controls decision.
Judge Alsup told Google's counsel that Google had to address the Johnson Controls decision with a view to the Java APIs.
It all depends of Judge Alsup now.
The judge instructed the jury that APIs were copyrightable. He did this to prevent the certain appeal of his decision on APIs from forcing another jury trial which would rehash the same testimony.
Mueller was "correct" because he didn't have to make a risky prediction on the jury trial.
In fact, Mueller has been wrong, repeatedly. He predicted Google would settle. He expected the case to be resolved months ago. He gives that as a reason for hiding his employment with Oracle, a blatant conflict of interest while he offered expert commentary on the case.
He predicted the jury would find against google's fair use defense for question 1B, then blames the judge for not issuing the correct instructions.
He's basically a huge anti-google marketing campaign.
Ask him how that Linux GPL infringement issue that was going to ruin the android marketplace has been going? Nowhere you say?
edit: Here's some context, but I regret having to link to his garbage blog to provide it:
Fake emergency ginned up by Mueller regarding distribution rights being revoked from Android vendors: http://www.fosspatents.com/2011/08/most-android-vendors-lost...
Fake and inaccurate licensing issue ginned by by Mueller regarding the "viral" GPL infecting[1] Angry Birds forcing Rovio to release the source: http://www.fosspatents.com/2011/03/googles-android-faces-ser...
[1] Hint, GPL licensing does not work that way.
It would seem to me that providing an api compatible 'shim' layer would then not fall under copyright if apis are not copyrightable. Although linking is clearly, in my mind, the creation of a derived work.
My understanding of the many facets of copyright law is not very extensive though, so enlightenment is definitely welcome.
would this have any impact on gpl3's 'anti tivo'
exclusions
You are basically mixing here 2 different things: the implementation and the interface. GPL v3 affects the former, while APIs not being copyright-able affects the later.
It would seem to me that providing an api compatible
'shim' layer ...
What you can do is to allow the user to install the GPL v3 module by himself. This works as long as the GPL v3 module is replaceable. For instance, say that your software uses an SQL Database and that the preferred RDBMS recommended to users is a GPL v3 licensed database. You could even provide scripts that automatically install/configure that database. This wouldn't mean that your software has to be GPL v3 compatible, because the database itself is replaceable and it is also not distributed directly with your software.
Another example would be for instance the usage of GNU Readline ... your software could use whatever Readline implementation it finds on the user's system through dynamic linking, and as long as it works with other implementations, then there is no hard dependency and you've got no problems.
However in the case of Tivoization, then direct distribution of the GPL v3 package is involved. And you simply cannot do that, no matter what API layer you've got between that package and your software.
Although linking is clearly, in my mind, the creation of a derived work.
The context is very important here. Let's say that MongoDB would be GPL v3 licensed (with no exceptions), there wouldn't be any other implementations and your software couldn't function without it. Because Mongo's APIs are unique (not a standard, no third-party implementations), would this mean that your software is derived from MongoDB? Yes it would, simply because without MongoDB it couldn't function.
On the other hand, if your software relied on MySQL, would your software have to be GPL v2 compliant? No it wouldn't, because you could just replace it ... however, in the case of MySQL the actual client library that gets linked to your software is also GPL v2 and has its own unique API that's relevant to MySQL only, so in such a case you have to find a way to dynamically link to that client, such that your software can continue to function even if the MySQL client library isn't installed.
But even so, this is about "usage", not "distribution". The distinction is important here, because if you want to distribute MySQL alongside your software as a single package, then your software must be GPL v2 compliant, no doubt about it.
Btw, I'm not a lawyer, this is just my understanding of how the GPL works.
According to the recent EU ruling your program is derived from MongoDB's API. But to prevent 'monopolization of ideas', MongoDB APIs are not under copyright so your software is not a derived work. In addition the ruling voids license clauses with conditions on how you run the software past normal use, so clauses like 'except you can't clone the API' or 'can only link with approved software' or 'have to publish the signing key' are unenforceable.
Since it's not a derived work and GPL linking restrictions are not enforceable, you simply accept the GPL and distribute the .so and source for that code along with your closed-source program and use it. You still have to publish your changes to the GPL code itself, like LGPL, but that's all.
This is the flip side of the API-copyrightability coin.
It's, however, disturbing when Mueller pretends to be a neutral part, because, quite simply, he's not. The fact he's occasionally right doesn't make him honest. Or trustworthy.
However, Mueller's opinion has been considered to diverge from reality in very specific ways, always favoring whoever is paying for it at the time and always being presented as an unbiased expert opinion.
jury's partial verdict means Mueller > you
Which is nice.
Bias has nothing to do with how strongly you believe something to be true, or how hard you try to spread that opinion. Bias is nothing more than the extent to which your opinion differs from reality. If you consistently and vehemently insist that the earth is round and not flat, you aren't biased, you're right.
And regardless of bias, you have to also take into account the specific evidence and reasoning provided with an assertion. PJ in particular is pretty good about explaining her predictions, so you can't dismiss her solely due to her bias - you also have to find fault with her reasoning.
You have not countered his argument with a similarly well-supported position, which is why you're being down-voted.
>his garbage blog
ad hominem attacks against Mueller. not me.
As to calling his blog garbage, his blog is the method by which he is communicating his views and so it is a judgement of quality of his writing, not of him directly.
[edit] also a personal insult, such as calling someone a complete and utter muppet, can be a perfectly reasonable point to make in argument as long as it is particularly relevant. Which judging from your commentary so far, is something you may wish to keep in mind.
I think that comment applies more to you.
the jury's partial verdict means Mueller > you. so who's the muppet now? :)
Is Gonzo apparently.
[edit] Also, lots of people are fatter than me, but I do not think that is germaine to this discussion.
For example, if everyone thought that Google would win on 1A, and someone predicted Oracle would, and then Oracle did, then that's doing better than 50/50. (I'm not sure if that's the case.)
See also: Monty Hall problem.
Or is this opening round just legal theater, and the real decisions will be handed down by experts in the US Federal Circuit court after an inevitable succession of appeals?
In any case it would be difficult for the trial judge or the Federal Circuit to ignore jury decisions on factual questions like the ones that were decided here, unless the result was egregiously wrong. Legal questions like whether APIs are copyrightable will almost certainly be reviewed on appeal.
[added] The dangers of judges who are too specialized was actually recognized when the Federal Circuit was set up, so the court was also given jurisdiction over a few other areas, such as appeals from the Court of Federal Claims, to prevent it from being overly specialized. I haven’t seen recent figures, but I do believe that the docket is dominated by patent cases.
The ownership of IP is, in a sense, a private good (excludable and rivalrous), just like a car. Take patents - can buy and sell them, they're hard to steal, and only one person can have it.
However, the right to use (not own) IP is not a private good. While the original copyright or patent may be unique (therefore rivalrous) and easy to defend (thus excludable), expressions of it are not.
Non-excludable, non-rivalrous goods (the right to use IP) are a little harder to reason about.
Patents, on the other hand, are excludable and rivalrous only in the tautological sense. They are defined within law as excludable and rivalrous, so therefore they are excludable and rivalrous.
Patents could be redefined in numerous ways that are not excludable and rivalrous, such as including anyone else who can give reasonable proof that they came up with the idea at the same time or independently. Also, it would not be that great a stretch to limit their transferability, so that they cannot be treated as a normal asset.
Yes, and it's really easy to con people with the tautological definition.
"Of course IP is just property. You can buy it, and sell it, just like a car".
By the same argument, piracy is not theft but license infringement. The whole thing is so abstract, it's easy for people to muddy the waters.
What this article refers to (using poor, imprecise language in the headline) is the jury's finding that Google copied, in the literal sense of the term, the Java API's. This is something the jury is totally qualified to decide. They can see the snippets of code put forth as evidence. They might not understand how it works, but they can see whether they are similar or not.
From here, the judge will decide whether API's are copyrightable. This is the real show. We know Google copied the API, the real question in this trial is whether that API is protectable under copyright law. The judge will answer this question.
After that, the jury will answer whether Google's copying is eligible for the fair use defense. That is to say, even if they did copy, and even if API's are protectable, was Google's use nonetheless of a kind that qualifies as "fair use." This decision doesn't really involve "nerd esoterica."
I think the jury did just fine. They have punted on the hard problem, but I think the rest of their determinations are quite fair. This doesn't look like the case that will impeach the jury system to me.
"After the partial copyright verdict was read, Judge Alsup launched right into the patent phase without even giving a break. Right now, the jury is watching a video about patents and patent lawsuits produced by the Federal Judicial Center, which is commonly shown to patent juries. Court will probably adjourn after opening statements today, and witnesses will begin testifying tomorrow, possibly including a repeat show by Jonathan Schwartz, the ex-Sun CEO. The patent phase is expected to be concluded in as little as one week. "
"nerd" stuff doen't have monopoly on complex
At the end of the day, I'm OK with "random" juries making these decisions. There is quite a bit of apparatus in place to prevent major error, and the law can always be changed (obviously it's not easy to do so, but it's possbile) in response to an undesirable decision.
It doesn't sound like he'll be making that ruling until at least midway through this month.
Edit: I'm not sure mistrial is precisely what I mean. Maybe just re-trial? Any clarification would be appreciated.
The policies of politicos is a much more grey area with consequences not so immediate and very subjective many, many years after the fact.
Let me rephrase that.
> If some issue cannot be understood by 12 random people heavily influenced by two multi-million dollar legal teams [...]
And now imagine "issue" being anything you're not intimately familiar with. There are many things in this world that I fail to understand, and probably never will. Law on this level is just as complicated as any other advanced topic, and the effect of a judgement on society can be profound.
I totally don't get the whole jury thing in cases as technical/complex as this (and by that I don't mean the computer science aspect, but the law aspect).
Where deep technical knowledge is required to understand the implications of a verdict, I think that the "community" should be defined as the community whose domain is primarily effected (in this case, computer scientists/software engineers). This doesn't sound too horrible to me.
Perhaps the fact that we need specialized juries should be a signal that our law is too specialized. Most things that should be illegal can be described rather succinctly when it gets down to it, and I think "no way twelve random people could comprehend" could be useful bright barrier line for "Maybe we're losing a little bit of control here..."
it's less complex than economy when someone have to be judged for debt. it's less complex than forensic medicine when one have to be judged for murder.
stop acting like it's a secret circle only you were able to enter.
the million dollar legal teams will bring in experts, those experts will explain what's their expert opinion on the fact. the 12 average joes will decide, and life will go on. If you think million dollar teams can just pay experts to say anything, the other team's expert will point that out to that other team and other legal mechanism will punish the one lying.
now, if it were Google vs John Doe, then i'd be sorry for poor john.
I think the fact that you have two opposing teams of "experts" makes it even more difficult for the jury; Oracle surely brings people in that talk about APIs in more concrete terms so that they can strengthen their copyright claim, and Google surely brings in people that say, "No, an API is just a set of concepts that trigger magic in some other code", and I think that normal people would just be more confused after hearing this.
Wouldn't it be better to simply recognize this is a case that requires deep technical knowledge, find software people who do not have a bias one way or the other toward Google/Oracle, and put them on the jury, where they will understand the extreme consequences of ruling that APIs represent copyright infringement, instead of just sitting twelve random people in front of two or three short videos and expecting them to grasp that the outcome of the case here will effect and set precedent as to whether clean-room implementations anywhere are legitimate, and what that means? If this precedent was set way back when it may even have been construed to apply to implementations of protocols like HTTP; imagine the consequences if some early player like Urbana-Champaign was given the copyright to the "HTTP API" and no one except them was allowed to write a browser that used HTTP (without licensure). Also, I hope no one here depends on WINE.
Do we really expect any set of twelve random people to understand this is the kind of decision to which they are contributing?
If (Google Violated Copyright) = False THEN Google Not Guilty
If Google has Fair Use THEN Google Not Guilty
Google Guilty
The judge needs to rule on the first statement, the jury came back on the second statement, but the jury could not decide on the third statement.
(Edit: Wording)
optimized (and corrected, because in your flow Google is always guilty since everything drops through to that anyway).
In the sense that false short-circuits anything to the right, and ApiCopyrightable is only a factor if Google is held to have violated copyright under the assumption that Apis can be copyrighted.
:)
GoogleGuilty := ...GoogleGuilty = APICopyrightable and GoogleViolatedCopyright and not GoogleHasFairUse
Quickly scanning over the C-like syntax I can more easily notice the ! and the && than I can make out the 'not' and the 'and' while scanning the more natural-language-like CoffeeScript because of the clear separation between ! and && and the alphanumerics commonly used in variable names. IMO the 'and' and 'not' keywords kind of get lost in the noise of all the other characters.
YMMV here. I've been programming in C-like languages for quite a long time so maybe that's rewired my brain in a way that doesn't hold for people who don't program in C-like languages.
The law tends to be framed in conditions like this. That's why "the jury found X" isn't necessarily news--the real story could be in other parts of the conditional expression.
"What is copyrightable is creative expression," said Julie Samuels, an attorney with the Electronic Freedom Foundation "What is not [copyrightable] is functional information. The programming language is not. You can't copyright a language. It's what you make of that language."
This seems to assume that creation of a (computer programming) language does not involve creative expression. (I understand that writing a compiler for this language certainly does.) This may have been right in possibly older times when languages were not explicitly designed; does not sound right anymore.
Also, would you call sizeof(A) to be a part of the language (it is built into C/C++), or is it more like an API?
[1] http://news.cnet.com/8301-1001_3-57429147-92/oracle-gets-a-c...
The question is between purely creative and functional. Functional things are usually not covered by copyright while creative things are. Things which are both need to be considered more carefully.
A computer language would never be copyrightable anyway because it is not a fixed expression. It's a set of rules for expressing things and that is never covered.
And APIs have never been covered because they're purely functional, regardless of the level of creativity involved.
This helps! Thanks.
As you stated yourself, APIs do seem to fall in the same category. I think the distinction of APIs from language is very complex as there are things which may blur the boundary between the two.
Would it have an effect on the jobtrend in java over the next 5 years?
That's an important question, but the issues are even bigger. This isn't just about Java. If the judge finds that APIs are copyrightable, it affects a lot more.
For example, Microsoft has a promise not to sue over its patents on .NET. But if APIs are copyrightable, is Mono in infringement of Microsoft's copyright? Safety from patents is suddenly not enough.
Another example, Android uses Linux kernel headers, the API needed to access the kernel. The wide assumption has always been they are not copyrightable, so you can implement userspace apps that are not GPL. But if APIs are copyrightable, that might be less clear.
The bottom line is that this judge is going to decide, by himself, whether APIs are copyrightable. It's going to have a huge impact on our industry if he says "yes". It's scary to think about the amount of power he currently holds.
Given the judge's instructions on SSO copyright and APIs and the realities of re-implementing an API, I don't see how a jury could have reasonably concluded there was no potentially infringing copying. If so, the real question in play was the fair use analysis and that's where the jury deadlocked. Not as good as Google would have liked, but not as bad as it could have been, either.
Mush more nuanced analysis here: http://news.ycombinator.com/item?id=3940322
http://digital-law-online.info/lpdi1.0/treatise22.html <--- precedent
No. The judge has yet to decide this (much more important) issue.
More info here: http://news.ycombinator.com/item?id=3940322
I see but does the fact that the judge told them to assume so indicate something about what he thinks about it?
I'm not a lawyer and I wonder how it goes in these cases: when a judge tells the jury to assume something, is he implying there is a good chance that that is how he would judge the case?
I had a lawsuit many years ago against a bank here in my hometown. The judge initially ruled he "believed the evidence I presented was consistent with my arguments". In the end, years later, that is how he judged it finally. Therefore I wonder if API's are all now on the brink because of this ruling.
There are a couple reasons he may have done this - one is that the jury could have found for Google on fair use, rendering Alsup's decision on API copyright unnecessary. He gets to avoid making a potentially far reaching decision.
The second is if he rules against API copyright, and is overruled on appeal, then there doesn't need to be a second jury trial, since the jury already assumed API was copyrightable.
P = Java APIs are copyrightable
Q = Google has violated Oracle's copyright on Java APIs
Does P imply Q?
This is purely a logical/philosophical exercise (that could nonetheless have serious consequences for the outcome of the case); the Judge had to give this instruction. If he told the Jury to assume the opposite, there would be nothing for them to determine (we already know that not P implies not Q).
Yes but you must discard the hypothesis later(assumption of P), which only the judge can do in this case, deciding whether or not P is true.
I guess by your reasoning, then yes, he is implying that, otherwise the implication is always true and there's no logic to assuming a false P.
Thus: I fear for the worst. API's may be copyrightable according to this ruling. I assume Google's teams are all over this right this minute.
There are two separate questions being asked here:
1. Is P true?
2. If P is true, does Q follow?
To answer (2), the jury must assume P then evaluate the consequence on Q; that is simply the manner of establishing the validity of a material implication. As you note, if the jury did not assume P, then they would have nothing to do. However, that the judge instructed the jury as such does not indicate any bias on his part; he was simply providing instructions to simplify the procedure of logical reasoning to a group of 12 laypeople. I'm assuming that most of them aren't trained mathematicians, logicians, lawyers, or philosophers.
To put it succintly: the answer to your original question is "No."
P = APICopyrightable
Q = APICopied # infringingly
They do this to prevent new jury trials, letting appellate courts solve all matters of law.
Is this said video? http://archive.org/details/gov.ntis.ava21157vnb1
I call b.s. on this. If the involvement of Oracle here is causing cognitive dissonance substitute Sun Microsystems and review issue.
Java is open source. There is an open source license and you can license it. (Note: You are implicitly agreeing to OSS licensing when e.g. forking on Github.com.)
> "as thought"
Terms of that license are well known. Nothing ambiguous to "think" about.
> "take out"
Violate my GNU licensed code and you may find I will "take [you] out" of market x.
If copyright violations of APIs are ok, then where the tooth in [GPL], for example. "Free as in freedom not free beer".
These companies would not have such large IP legal teams were it not for software patents, nor would they be in the regular habit of taking each other to court with the threat of multi-million dollar damages. As it happens, the copyright protections of an API are the issue in this particular case but this is just one battle in a larger war which is predominantly fought on the patent field. Were it not for software patents it's a fairly sure thing that a case of this sort would never see the light of day.