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.
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?
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.
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."
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.