|FROM ||Ruben Safir
|SUBJECT ||Re: [Hangout of NYLXS] Fair USe
|From hangout-bounces-at-nylxs.com Sat May 13 22:10:21 2017
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From: Ruben Safir
Date: Sat, 13 May 2017 22:10:17 -0400
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Subject: Re: [Hangout of NYLXS] Fair USe
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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. =
Google and Oracle=E2=80=99s $9.3 Billion Fair Use Fight Starts Today, Here=
=E2=80=99s a Guide
Jeff John Roberts
May 09, 2016
Gather round tech folks, it's time for an epic rematch between two
industry giants. At stake is not just billions of dollars in copyright
claims, but also a controversial legal concept that could roil the
entire software industry.
It all begins on Monday in San Francisco, where Google (goog, +0.17%)
and Oracle (orcl, -0.18%) will joust in court for a second time over
little bits of code used to build the Android operating system. Here's a
Q&A in plain English about what you need to know about the case,
including each side's strategy and possible outcomes.
Why are Google and Oracle in court?
The case is about intellectual property. It began six years ago when
Oracle sued Google for using APIs tied to Java (more on this below)
without permission. Google won at an initial trial in 2012 when a jury
found the company didn't infringe Oracle's patents, and a judge
concluded the APIs didn't qualify for copyright protection.
But in a ruling that shocked the tech community, an appeals court found
in 2014 that Oracle's APIs were indeed covered by copyright. The ruling
also kicked the case back to the lower court to determine whether
Google's use of the APIs counted as a "fair use." Now, at this second
trial, a jury will look at the fair use question.
How does "fair use" come into it?
Fair use is a part of copyright law that allows use of a work without
the author's permission. Examples are parody sketches that use famous TV
or movie characters, or a book review that quotes a section of a a
novel. The Oracle-Google trial is unusual because you normally see fair
use debates in the realm of media and the arts, not computer science.
Google=E2=80=99s Messaging App Allo Turns Selfies into Emoji
In any case, the legal standard is the same. It consists of a four-part
test that weighs: 1) the purpose of the use (i.e. Why did you use it?);
2) the nature of the work (i.e. How much creativity was involved?) 3)
the amount used (How much did you take?); 4) the effect on the market
for the work.
While courts weigh all the factors, many legal scholars think numbers
one (purpose) and four (effect on market) are the only ones that really
Why is the case so important?
It's partly about the money. Oracle wants a jury to order Google, which
is now part of the holding company Alphabet, to pay $9.3 billion in
damages. That figure is more than half of Google's overall profits from
2015. But it's unlikely Oracle, if it wins, will get even close to that
The bigger issue, instead, is the fair use one. If the jury sides finds
Google's activities were not fair use, it could be open season on other
software companies, big and small, that rely on unlicensed APIs.
As it stands, developers have long treated APIs as a standard set of
instructions outside the realm of copyright. Now, if Google loses, they
could have to seek a license or basically reinvent the wheel every time
they want one computer program to interact with another. As prominent
computer scientists told the appeals court, allowing companies to assert
copyright over APIs could have a profound and negative effect on
What are these APIs?
An API, which is short for Application Programming Interface, is a set
of instructions that allow one type of software talk to another. For
instance, you might have seen Google Maps built into a third party app
or a "tweet this" button on a web page =E2=80=94 this only works because Go=
and Twitter provided an API to make the app and website work with their
software. (Here's a non-technical explanation).
In the case of Oracle, it controls libraries of APIs tied to the popular
programming language Java. When Google began adding Java features to its
Android software in 2007, it replicated portions of those APIs because
developers were already familiar with them. Those portions related to
headers and sequences=E2=80=94they act kind of like a table of contents that
shows what goes where.
What will Google argue?
Google will tell the jury that its use of the APIs was transformative
under the first part of the four-part test. Specifically, it will argue
that its use of the Java APIs for a mobile operating system was a new
and original purpose outside. The company will also argue that APIs rank
low on the creativity scale and that it will used a very amount of the
overall code controlled by Oracle=E2=80=94thus, the second and third parts =
the test favor Google. Finally, it will say the market harm part of the
test favors Google because no one was using the APIs for mobile devices
in the first place.
Google will also try to frame this as a story of greed on the part of
Oracle, accusing its rival of trying to do through litigation what it
can't do through innovation. It will cast itself as the champion of the
tech community and software developers, who will suffer if Oracle can
As a fall back plan, Google is also relying on other defenses besides
fair use. Specifically, this will involve asking U.S. District Judge
William Alsup to find Oracle can't sue in the first place because it
waited too long and because it once implied to Google that it wouldn't
sue (legal arguments known as laches and estoppel).
What will Oracle argue?
Obviously, Oracle will put a very different gloss on the four fair use
factors. It will tell the jury Google did nothing transformative with
the APIs but simply lifted them to make money. It will claim the APIs
represent a lot of skill and creativity, and that Google used thousands
of lines of its code without permission, which is no small amount.
Finally, it will say the success of Android shows clear harm in the
market=E2=80=94i.e. that Oracle would have been able to collect millions in
licensing fees but didn't since Google simply took the APIs.
Oracle will also rebut Google's story of innovation by painting its
rival as a lawless company that just took what it wanted rather than
play by the rules. It will argue that Google's claims of principles are
just a smokescreen to cover up the fact that it was in a rush to build
its Android system and took a shortcut by stealing Oracle's code.
What will the jury decide?
Juries are often swayed by stories and emotions more than by dry legal
arguments. This means that the outcome may turn less on a sober analysis
of the fair use factors and instead on how they feel about each company.
Is Google defending innovation against Oracle's greed? Or did Google
just disregard the rules for the sake of its own self-interest?
The judge, who found for Google the first time around, will have a role
to play, too, through his instructions and how he steers the trial. He
could also sidestep the jury's fair use finding by deciding the case on
one of the other defenses (laches or estoppel) described above.
How long will this take?
The jury selection starts on Monday (update: the jurors have been
selected), and the case is expected to last weeks. The first portion of
the trial will focus on the fair use arguments. If the jury sides with
Oracle, the trial will then move to a damages phase to see how much
Google should pay. At this point, Google would also set out its other
Will there be another appeal?
That's a pretty good bet. If Google loses, it will have to appeal once
again to the Federal Circuit of Appeals, whose job is ordinarily to
oversee patent claims=E2=80=94and which many blame for botching the original
ruling. This would likely be a stepping stone to the Supreme Court,
which refused to get involved the first time around over the question of
whether APIs can be copyrighted in the first place. Given the importance
of the case, and an ongoing debate over fair use, there's a good chance
the country's top court may end up hearing the case after all.
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proportions in the mind of the world - RI Safir 1998
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