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DATE 2017-05-01

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Key: Value:

MESSAGE

DATE	2017-05-18
FROM	Rick Moen
SUBJECT	Re: [Hangout of NYLXS] Fair USe
From hangout-bounces-at-nylxs.com Thu May 18 13:39:19 2017 Return-Path: X-Original-To: archive-at-nylxs.com Delivered-To: archive-at-nylxs.com Received: from www.mrbrklyn.com (www.mrbrklyn.com [96.57.23.82]) by mrbrklyn.com (Postfix) with ESMTP id D11C4161312; Thu, 18 May 2017 13:39:16 -0400 (EDT) X-Original-To: hangout-at-nylxs.com Delivered-To: hangout-at-nylxs.com Received: from linuxmafia.com (linuxmafia.COM [198.144.195.186]) by mrbrklyn.com (Postfix) with ESMTP id 70BFB160E77 for ; Thu, 18 May 2017 13:38:54 -0400 (EDT) Received: from rick by linuxmafia.com with local (Exim 4.72) (envelope-from ) id 1dBPNd-0006yp-5R for hangout-at-nylxs.com; Thu, 18 May 2017 10:38:29 -0700 Date: Thu, 18 May 2017 10:38:29 -0700 From: Rick Moen To: hangout-at-nylxs.com Message-ID: <20170518173829.GU19942-at-linuxmafia.com> References: <59575055-de4c-deb0-7ee0-14335112f29c-at-mrbrklyn.com> MIME-Version: 1.0 Content-Disposition: inline In-Reply-To: <59575055-de4c-deb0-7ee0-14335112f29c-at-mrbrklyn.com> Organization: If you lived here, you'd be $HOME already. X-Mas: Bah humbug. X-Clacks-Overhead: GNU Terry Pratchett User-Agent: Mutt/1.5.20 (2009-06-14) X-SA-Exim-Connect-IP: X-SA-Exim-Mail-From: rick-at-linuxmafia.com X-SA-Exim-Scanned: No (on linuxmafia.com); SAEximRunCond expanded to false Subject: Re: [Hangout of NYLXS] Fair USe X-BeenThere: hangout-at-nylxs.com X-Mailman-Version: 2.1.17 Precedence: list List-Id: NYLXS Tech Talk and Politics List-Unsubscribe: , List-Post: List-Help: List-Subscribe: , Content-Type: text/plain; charset="utf-8" Content-Transfer-Encoding: quoted-printable Errors-To: hangout-bounces-at-nylxs.com Sender: "Hangout" Quoting Ruben Safir (ruben-at-mrbrklyn.com): > I haven't had a chance to look at this lately but lets review. Google > is involved in two of the most important cases of the 21st century ... > the Java usage case, and the Books Scanning Case... OK, after telephone conversation with Ruben and then checking the record, here's some substantive analysis by way of correcting what I wrote earlier: In 2014, Oracle appealed a particular finding of United States District Court for the Northern District of California about copyright eligibility of copyrightable ('expressive') elements in 37 'API' programs, that house the declaring code and the structure, sequence, and organization of the software architecture. District court had found those elements not expressive but rather functional, hence ineligible for copyright coverage. On appeal, Court of Appeals for the Federal Circuit disagreed, = Quoting a passage out of the appellate decision: With respect to the 37 packages at issue, =E2=80=9CGoogle be- lieved Java application programmers would want to find the same 37 sets of functionalities in the new Android system callable by the same names as used in Java.=E2=80=9D Id. To achieve this result, Google copied the decl= aring source code from the 37 Java API packages verbatim, inserting that code into parts of its Android software. In doing so, Google copied the elaborately organized taxonomy of all the names of methods, classes, interfaces, and packages=E2=80=94 the =E2=80=9Coverall system of organized names =E2=80=94 covering 37 packages, with over six hundred classes, with= over six thousand methods.=E2=80=9D Copyrightability Decision, 872 F. Supp. 2d at = 999. The parties and district court referred to this taxonomy of expressions as the =E2=80=9Cstructure, se- quence, and organization=E2=80=9D or =E2= =80=9CSSO=E2=80=9D of the 37 packages. The court recaps the notion of non-literal copying of creative elements, referencing leading cases Computer Assocs. Int=E2=80=99l v. Altai, 982 F.2d= 693, 704-05 (2d Cir. 1992) and Johnson Controls, Inc. v. Phoenix Control Sys., Inc., 886 F.2d 1173, 1175 (9th Cir. 1989). This is a generally important matter you need to follow to grasp the details of copyright law. If you're not clear on it, look at the coverage in item 'Abstraction, Filtration, Comparison' on http://linuxmafia.com/kb/Licensing_and_Law/. In this case it's partially moot, because Google concedes that it literally copied the 37 programs' declaring code including their 'sequence and organization' -- = but Oracle alleges both literal -and- non-literal copying, that in creating Dalvik Google copied part of the 'structure, sequence, and organization' (SSO) verbatim and paraphrased the rest by writing different but structurally identical implmenting code. = So, the matter comes down, as usual, to whether substantial copying of expressive elements occurred, and the appeals court confirms that = distinguishing whether candidate software elements are best characterised as expressive or as functional (e.g., having their structure dictated by compatibility) is very thorny. This is part of the (very key) expression/idea dichotomy: Useful ideas/inventions are eligible for patent but not copyright. Creative expressions are eligible for copyright but not patent. Merger dictrine: This is an exception to the expression/idea dichotomy. If there are only a limited ways to express an idea, then the idea is said to 'merge' with its expression, and the expression becomes ineligible for copyright. The trial court cited merger as one reason for concluding that copying of the 37 programs was not copyright infringement. The appeals court, though, found that the trial court erred on the facts: Oracle did _not_ have only constrained options as to the selection and arrangement of the 7000 lines Google copied. Short phrases doctrine: Another part of standard copyright doctrine is that short phrases are ineligible for copyright. The trial court classified Android's methods and class names as short phrases, hence not infringing Oracle's equivalents, but the appeals court says the relevant question for copyrightability purposes isn't whether the new work contains short phrases but rather whether those phrases are creative, i.e., that _merely_ being short doesn't make something automatically uncopyrightable. The Court of Appeals also pointed out that an original _combination_ of short elemements can be copyrightable. Scenes a Faire doctrine: Expressive elements of a work of authorship are not entitled to protection against infringement if they are standard, stock, or common to a topic, or if they necessarily follow from a common theme or setting. There were several grounds on which the appeals court says the trial court got this wrong, and I'm running out of patience for boiling down complex legal analysis to a short mailing list post, so read the goddamned opinion, please. In fact, that would be my overall take on _your_ take on this. Read the goddamned opinion, and stop copying and pasting from the press and Wikipedia. THe appeals court remanded the case back to the trial court to re-hear = Google's affirmative defence of fair use with its standard four factors that I'm sure you know all about because you read copyright caselaw. If Google loses, that's too bad for Google's wallet, but doesn't actually make any change to copyright law. And I'll note, as the appeals court did, that Google didn't need to copy the SSO code; they just found it convenient to do so. The compatibility Google sought to foster was not with Ora- cle=E2=80=99s= Java platform or with the JVM central to that plat- form. Instead, Google wanted to capitalize on the fact that software developers were already trained and experi- enced in using the Java API packages at issue. The district court agreed, finding that, as to the 37 Java API packages, "Google believed Java application programmers would want to find the same 37 sets of functionalities in the new Android system callable by the same names as used in Java." Copyrightability Decision, 872 F. Supp. 2d at 978. Google=E2=80=99s interest was in accelerating its develop- ment process by "leverag[ing] Java for its existing base of developers." Well, maybe not doing that in the future might be a better idea. Dalvik didn't need to copy the SSO code at all, and if it hadn't, Google wouldn't be going back to District Court, again. Anyway, Ruben, I don't take seriously what you say on court cases and don't even spend more than about 60 seconds checking out what you say, because all you ever do is copy-and-paste from elsewhere and then editorialise. Which means you bring zero real understanding to the table for yourself or anyone else. So, read the goddamned caselaw for a change. _______________________________________________ Hangout mailing list Hangout-at-nylxs.com http://www.nylxs.com/mailman/listinfo/hangout