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I wouldn’t be surprised if Oracle wins on copyright (I think it is almost impossible for Google to count to 5 on their merger doctrine argument) but I disagree

I wouldn’t be surprised if Oracle wins on copyright (I think it is almost impossible for Google to count to 5 on their merger doctrine argument) but I disagree that fair use is a long shot. The justices that brought up the case’s procedural history were all unanimously skeptical that the Federal Circuit correctly set aside the fair use verdict in favor of Google. I think the most likely outcome of this case (especially with the absence of Justice Ginsburg) is a remand to the Federal Circuit with instructions to pay more attention to the trial court’s findings.

dragonwriter 6y ago
> I think the most likely outcome of this case (especially with the absence of Justice Ginsburg) is a remand to the Federal Circuit with instructions to pay more attention to the trial court’s findings. I think that's somewhat unlikely; I think its somewhat more likely that the court concludes that the Federal Circuit erred in using de novo review, but instead of remanding to the Federal Circuit for reasonableness review reconsiders the jury verdict on the bases of the trial record itself (especially if by doing so it can uphold the trial verdict and kick the copyrightability issue down the road to another case.) While the Supreme Court will dodge hard issues where it can, it doesn't tend to do it in a way which leaves a good chance that the same issue will come to them again in the same case. When they dodge, they like to make sure the issue stays dodged, at least for the immediate case. There's way too much risk that the Federal Circuit would reach the same answer if told to use a reasonableness standard of review (I don't think it should, but absent reaching the answer itself, the Supreme Court can't be sure of that), which would leave the copyrightability issue to come before the Court again before this case would be finalized.
- granzymes 6y ago
  I gave more weight to a remand than SCOTUS upholding the trial verdict itself primarily because the court is currently shorthanded. I agree that the court prefers to punt for good !
  - dragonwriter 6y ago
    > I gave more weight to a remand than SCOTUS upholding the trial verdict itself primarily because the court is currently shorthanded. I think you are correct that it is more likely for that reason than it would otherwise be, though I still think its less likely than a more permanent punt on the case (that would still leave the issue live for a future case.) But that's just my intuition.
cashewchoo 6y ago
I agree. Personally, I espouse the "copyright should not exist at all" viewpoint. However, I think in the current legal framework, APIs are clearly copyrightable. However, re-implementing the APIs should obviously be allowed under fair use. Remember that copyright exists solely for the purposes of increasing the production of otherwise-easily-copyable works that take time to create but then are "worthless" (i.e. the marginal cost of each additional copy is ~0 or negligible). From the Constitution itself: "[the United States Congress shall have power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." I can see how one can argue that software itself - the actual code - will benefit in the same way (though the myriad successful open source projects and SaaS platforms seem to suggest it's not necessary......). However, I think it's pretty dang clear that limiting the copying of APIs will broadly lead to less software being created. It's well established that, for software, ideas are cheap, and that competitive advantages primarily come from excellent execution and excellent VC funding. If someone re-implements your API and your business folds, it's not because your API was your secret sauce and they stole it. It's because their re-implementation - which, by definition of an API, must be "the exact same thing" - was better than yours. They produced a better product, and the market rewarded them for that. So, for a legal framework whose purpose, as outlined in the constitution, is to promote the arts and sciences, I think it's pretty clear what the path forward is.
- luckylion 6y ago
  > They produced a better product, and the market rewarded them for that. You could make that same argument about patents in general, couldn't you? If you invent something, say, a new battery, and somebody else copies it, doesn't have your R&D-costs invested and prices it accordingly lower than you, the market will "reward them" by buying from them instead of you, they're getting the same thing after all. We do want some stability though, if you invest money to create something and somebody immediately copies it, you're not going to invest money again. We want you to invest money to advance humanity with new technology and knowledge though. Since there's no re-implementation without looking at the original, it feels sufficiently close to taking your buddy's homework and saying "no worries, I will change it a bit" and you'll have Math.add(a, b) and while they wrote return a + b;, you'll write return b + a;, you're not copying after all.
nodamage 6y ago
You might be right. It seems like Google's most realistic path to victory here will be based on arguing over the legal technicalities related to the standard of review. I wonder if they win on that front if the Court will be able to dodge the question of API copyrightability in general.
- dodobirdlord 6y ago
  If the court decides that the lower court was wrong to have disregarded the jury’s decision they’ll definitely decline to answer the question about API copyright. The court pretty much always gives the narrowest ruling possible.
nobody9999 6y ago
>I wouldn’t be surprised if Oracle wins on copyright (I think it is almost impossible for Google to count to 5 on their merger doctrine argument) but I disagree that fair use is a long shot. I wonder about the differences (which definitely do exist) between Oracle's Java API and the OpenJDK Java API. While they really have to be substantially similar to allow interoperability, OpenJDK is open source (GPL) and Oracle's Java is not. That brings up a couple questions which don't directly bear on the case just heard by the Supremes, but are (IMHO) relevant to potential second-order consequences of a ruling for Oracle: 1. Given that the OpenJDK API is substantially similar to the Oracle Java API, could Google avoid repercussions by switching to the former from their "adaptation" of the latter? 2. Should an API be considered eligible for copyright, wouldn't that enable opportunities for language and library developers to restrict others from developing competing (via performance or utility enhancements) languages/libraries by forcing anyone who wished to implement enhancements to either purchase a license or flat out deny them the ability to do so (assuming the product --including the API isn't open source)? 3. If (2) is the case, what does that mean for incremental improvements of languages and libraries? I'm not a java dev or a copyright expert, so pardon me if I missed an important point.
- thu2111 6y ago
  They already switched to OpenJDK a while ago. I think this case covers historical damages back from before they did that.
- imtringued 6y ago
  >2. Should an API be considered eligible for copyright, wouldn't that enable opportunities for language and library developers to restrict others from developing competing (via performance or utility enhancements) languages/libraries by forcing anyone who wished to implement enhancements to either purchase a license or flat out deny them the ability to do so (assuming the product --including the API isn't open source)? It would be a software patent except not by name and it would last significantly longer. I can already see both software and hardware patents being abandoned if this court sets a precedent that APIs can be copyrighted. The next day people will want to add everything patents do simply because copyright has a longer duration and it is effective immediately.

dragonwriter 6y ago

> I think the most likely outcome of this case (especially with the absence of Justice Ginsburg) is a remand to the Federal Circuit with instructions to pay more attention to the trial court’s findings. I think that's somewhat unlikely; I think its somewhat more likely that the court concludes that the Federal Circuit erred in using de novo review, but instead of remanding to the Federal Circuit for reasonableness review reconsiders the jury verdict on the bases of the trial record itself (especially if by doing so it can uphold the trial verdict and kick the copyrightability issue down the road to another case.) While the Supreme Court will dodge hard issues where it can, it doesn't tend to do it in a way which leaves a good chance that the same issue will come to them again in the same case. When they dodge, they like to make sure the issue stays dodged, at least for the immediate case. There's way too much risk that the Federal Circuit would reach the same answer if told to use a reasonableness standard of review (I don't think it should, but absent reaching the answer itself, the Supreme Court can't be sure of that), which would leave the copyrightability issue to come before the Court again before this case would be finalized.

granzymes 6y ago
I gave more weight to a remand than SCOTUS upholding the trial verdict itself primarily because the court is currently shorthanded. I agree that the court prefers to punt for good !
- dragonwriter 6y ago
  > I gave more weight to a remand than SCOTUS upholding the trial verdict itself primarily because the court is currently shorthanded. I think you are correct that it is more likely for that reason than it would otherwise be, though I still think its less likely than a more permanent punt on the case (that would still leave the issue live for a future case.) But that's just my intuition.

cashewchoo 6y ago

I agree. Personally, I espouse the "copyright should not exist at all" viewpoint. However, I think in the current legal framework, APIs are clearly copyrightable. However, re-implementing the APIs should obviously be allowed under fair use. Remember that copyright exists solely for the purposes of increasing the production of otherwise-easily-copyable works that take time to create but then are "worthless" (i.e. the marginal cost of each additional copy is ~0 or negligible). From the Constitution itself: "[the United States Congress shall have power] To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." I can see how one can argue that software itself - the actual code - will benefit in the same way (though the myriad successful open source projects and SaaS platforms seem to suggest it's not necessary......). However, I think it's pretty dang clear that limiting the copying of APIs will broadly lead to less software being created. It's well established that, for software, ideas are cheap, and that competitive advantages primarily come from excellent execution and excellent VC funding. If someone re-implements your API and your business folds, it's not because your API was your secret sauce and they stole it. It's because their re-implementation - which, by definition of an API, must be "the exact same thing" - was better than yours. They produced a better product, and the market rewarded them for that. So, for a legal framework whose purpose, as outlined in the constitution, is to promote the arts and sciences, I think it's pretty clear what the path forward is.

luckylion 6y ago
> They produced a better product, and the market rewarded them for that. You could make that same argument about patents in general, couldn't you? If you invent something, say, a new battery, and somebody else copies it, doesn't have your R&D-costs invested and prices it accordingly lower than you, the market will "reward them" by buying from them instead of you, they're getting the same thing after all. We do want some stability though, if you invest money to create something and somebody immediately copies it, you're not going to invest money again. We want you to invest money to advance humanity with new technology and knowledge though. Since there's no re-implementation without looking at the original, it feels sufficiently close to taking your buddy's homework and saying "no worries, I will change it a bit" and you'll have Math.add(a, b) and while they wrote return a + b;, you'll write return b + a;, you're not copying after all.

nodamage 6y ago

You might be right. It seems like Google's most realistic path to victory here will be based on arguing over the legal technicalities related to the standard of review. I wonder if they win on that front if the Court will be able to dodge the question of API copyrightability in general.

dodobirdlord 6y ago
If the court decides that the lower court was wrong to have disregarded the jury’s decision they’ll definitely decline to answer the question about API copyright. The court pretty much always gives the narrowest ruling possible.

nobody9999 6y ago

>I wouldn’t be surprised if Oracle wins on copyright (I think it is almost impossible for Google to count to 5 on their merger doctrine argument) but I disagree that fair use is a long shot. I wonder about the differences (which definitely do exist) between Oracle's Java API and the OpenJDK Java API. While they really have to be substantially similar to allow interoperability, OpenJDK is open source (GPL) and Oracle's Java is not. That brings up a couple questions which don't directly bear on the case just heard by the Supremes, but are (IMHO) relevant to potential second-order consequences of a ruling for Oracle: 1. Given that the OpenJDK API is substantially similar to the Oracle Java API, could Google avoid repercussions by switching to the former from their "adaptation" of the latter? 2. Should an API be considered eligible for copyright, wouldn't that enable opportunities for language and library developers to restrict others from developing competing (via performance or utility enhancements) languages/libraries by forcing anyone who wished to implement enhancements to either purchase a license or flat out deny them the ability to do so (assuming the product --including the API isn't open source)? 3. If (2) is the case, what does that mean for incremental improvements of languages and libraries? I'm not a java dev or a copyright expert, so pardon me if I missed an important point.

thu2111 6y ago
They already switched to OpenJDK a while ago. I think this case covers historical damages back from before they did that.
imtringued 6y ago
>2. Should an API be considered eligible for copyright, wouldn't that enable opportunities for language and library developers to restrict others from developing competing (via performance or utility enhancements) languages/libraries by forcing anyone who wished to implement enhancements to either purchase a license or flat out deny them the ability to do so (assuming the product --including the API isn't open source)? It would be a software patent except not by name and it would last significantly longer. I can already see both software and hardware patents being abandoned if this court sets a precedent that APIs can be copyrighted. The next day people will want to add everything patents do simply because copyright has a longer duration and it is effective immediately.