|FROM ||Ruben Safir
|SUBJECT ||Re: [Hangout of NYLXS] Fair USe
|From hangout-bounces-at-nylxs.com Sat May 13 22:06:25 2017
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From: Ruben Safir
Date: Sat, 13 May 2017 22:06:22 -0400
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Subject: Re: [Hangout of NYLXS] Fair USe
List-Id: NYLXS Tech Talk and Politics
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On 05/13/2017 09:46 PM, Ruben Safir wrote:
> On Fri, May 12, 2017 at 04:05:17PM -0700, Rick Moen wrote:
>> Quoting Ruben Safir (ruben-at-mrbrklyn.com):
>>> I liked it better when the court ruled that there was no copyright
>>> violation whatsoever. Instead they are now relying on a fair use
>>> argument about APIs and that is a moving target.
>> I'm sorry, but I'm unclear on what you're saying the court's reasoning
>> is. Can you be more specific?
> No I can't. If you don't want to talk about it then don't. =
Oracle v. Google, and the end of programming as we know it
The courts ruled that APIs can be copyrighted. That was bad. Now, if
APIs can=E2=80=99t be used with fair use, that will be even worse.
Steven J. Vaughan-Nichols By Steven J. Vaughan-Nichols
Computerworld | May 16, 2016 9:27 AM PT
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I thought we were done with Oracle=E2=80=99s frantic attempts to monetize i=
failed Sun purchase by suing profits out of Google=E2=80=99s use of Java in
Android. I was wrong. In 2015, the Supreme Court upheld an idiotic
decision by a U.S. Court of Appeals that Java=E2=80=99s application program=
interface (API) was subject to copyright. So here we go again.
In the first go-round between Oracle and Google, in 2012, a clueless
jury found that Google had infringed Oracle=E2=80=99s copyright by copying =
Android the =E2=80=9Cstructure, sequence and organization=E2=80=9D of 37 Ja=
U.S. District Court of Northern California judge William Alsup, a
programmer in his own right, tossed out the jury=E2=80=99s verdict, writing=
an API is merely =E2=80=9Ca long hierarchy of over six thousand commands to
carry out pre-assigned functions. For that reason, it cannot receive
copyright protection =E2=80=94 patent protection perhaps =E2=80=94 but not =
protection.=E2=80=9D Oracle, by the by, lost its patent lawsuit. All it had=
was its copyright case.
So we=E2=80=99re back to court, with Oracle now wanting a mere $9.3 billion=
Google=E2=80=99s use of the Java APIs in Android.
Can Oracle win? I hope not.
In fact, I hope it doesn=E2=80=99t win a thin dime, never mind billions.
You see, as the Electronic Frontier Foundation (EFF) observed, the Court
of Appeals decision showed a complete =E2=80=9Cmisunderstanding of both com=
science and copyright law. APIs are, generally speaking, specifications
that allow programs to communicate with each other, and are different
than the code that implements a program. Treating APIs as copyrightable
would have a profound negative impact on interoperability, and,
For over 30 years, we=E2=80=99ve used open APIs for almost every program yo=
imagine. Open APIs, along with open source, revolutionized the software
industry. They=E2=80=99ve enabled developers to easily create applications =
top of both open-source and proprietary programs. Today=E2=80=99s software
economy lives and dies on open APIs.
In the current case, the explicit question isn=E2=80=99t whether APIs can be
copyrighted. According to the Supreme Court, they can. The question is:
=E2=80=9CAre APIs covered by the fair-use doctrine?=E2=80=9D
The original 2012 jury didn=E2=80=99t see it that way. Greg Thompson, that
jury=E2=80=99s foreman, reported that most of the jurors thought Google=E2=
=80=99s use of
Java=E2=80=99s APIs was covered by fair use. This jury? Who knows?
Former Sun CEO Jonathan Schwartz said at the trial that Java=E2=80=99s APIs=
open, as indeed was Java. Schwartz said, =E2=80=9CIt was in our interest to=
so. If you were using Java, then everything else that Sun sold, we could
sell to you. If you were using Microsoft Windows, the dominant operating
system, then we had nothing to sell you.=E2=80=9D
Oracle, of course, doesn=E2=80=99t have a smartphone operating system. What=
does have are lawyers.
Legally, deciding fair use involves four equally weighted factors. These
are: whether the use was commercial; the kind of work that was copied;
how much was copied and how substantive it was; and the impact that the
copying had on the market for the original. I don=E2=80=99t think much of
Oracle=E2=80=99s chances. Oracle=E2=80=99s only hope is that Android=E2=80=
success will persuade the jury that Google is in the wrong.
If programmers made up the jury, Oracle wouldn=E2=80=99t stand a chance. Th=
know that APIs should be open or at least freely usable under fair use.
But instead of programmers, clueless users who can=E2=80=99t tell an API fr=
Apple iPhone will be making the decision.
Software development=E2=80=99s present and future lie in the hands of the
ignorant. As the tech writer Sarah Jeong put it, =E2=80=9CThe problem with
Oracle v. Google is that everyone actually affected by the case knows
what an API is, but the whole affair is being decided by people who don=E2=
Exactly. And that=E2=80=99s scary as hell.
Let=E2=80=99s hope they get it right. If they don=E2=80=99t, the world of s=
development is in for a world of hurt.
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that Brooklyn, like Atlantis, reaches mythological
proportions in the mind of the world - RI Safir 1998
DRM is THEFT - We are the STAKEHOLDERS - RI Safir 2002
http://www.nylxs.com - Leadership Development in Free Software
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