|FROM ||Rick Moen
|SUBJECT ||Re: [Hangout of NYLXS] Fair USe
|From hangout-bounces-at-nylxs.com Thu May 18 13:39:19 2017
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From: Rick Moen
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Subject: Re: [Hangout of NYLXS] Fair USe
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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
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=
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=
thousand methods.=E2=80=9D Copyrightability Decision, 872 F. Supp. 2d at =
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
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=
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
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
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=
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
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