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> "Google copied approximately 11,500 lines of declaring code from the API, which amounts to virtually all the declaring code needed to call up hundreds

> "Google copied approximately 11,500 lines of declaring code from the API, which amounts to virtually all the declaring code needed to call up hundreds of different tasks. Those 11,500 lines, however, are only 0.4 percent of the entire API at issue, which consists of 2.86 million total lines. In considering “the amount and substantiality of the portion used” in this case, the 11,500 lines of code should be viewed as one small part of the considerably greater whole. As part of an interface, the copied lines of code are inextricably bound to other lines of code that are accessed by programmers. Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment." Sanity prevailed! This judgment could have had devastating consequences and turned software development into a copyright nightmare.

oconnor663 6y ago
Question from a layman: Does "interoperability" as a concept have any legal relevance here? Like focusing on programmer skills seems kind of beside the point, which is really for two pieces of software to be able to interoperate.
- lostcolony 6y ago
  Also speaking as a layman, but yes. Fair use has, as one of its four factors, the purpose and character of the use, to which interoperability is of definite relevance. It explains -why- the API was reused, even if the internals are entirely different. Not because it saved Google work, or there was some sort of competitive edge against Java SE to be gained by doing so.
- TinoDidriksen 6y ago
  Yes, reverse engineering for the purpose of interoperability is one of the things explicitly allowed by laws such as DMCA.
  - teraflop 6y ago
    The decision talks about "interoperability" as a general concept, but neither the DMCA nor reverse engineering is at all relevant to its legal reasoning.
- torstenvl 6y ago
  Interoperability does have legal relevance, but because of programmer skills. Part of the fair use analysis turns on the legitimate goal of allowing programmers to use their skills in Java on the new platform. IAAL but IANAIPL and most emphatically IANYL
- scj 6y ago
  IANAL: Merger Doctrine is closest thing I'm aware of.
- kmeisthax 6y ago
  There's already Ninth Circuit precedent in favor of it. For example, Sony tried to sue two commercial PlayStation emulator developers and the Ninth rejected the lawsuit on all counts (and one of those cases is even cited in this opinion). The court has to talk about programmer skills because Android (at least, the versions before they switched to OpenJDK) was not entirely source- or binary-compatible with Java SE programs. In fact, the reason why they couldn't license Java SE was that Sun insisted on Android being locked into compatibility in the first place. So this entirely represents an expansion of existing fair use precedent: now, not only does fair use apply to full reimplementations for the sake of interoperability, but also partial reimplementations made for the sake of programmer convenience.
- comex 6y ago
  Yes, interoperability is relevant, because it affects the necessity of copying that particular code rather than making one's own substitute, which in turn affects fair use. But Google's lawyers (inexplicably, in my opinion) failed to talk much about the fact that many Java libraries are interoperable between Android and Oracle Java, leaving the courts to think only in terms of full applications which are not interoperable. Thus the courts have treated this case as if the only benefit to Android's reuse of Java was programmer familiarity. Thankfully, Google won anyway, so any defendant in a future case who can make a better interoperability argument will be in an even stronger position. Edit: For example, in the Federal Circuit ruling that the Supreme Court just overruled, they complain: "Indeed, given the record evidence that Google designed Android so that it would not be compatible with the Java platform, or the JVM specifically, we find Google's interoperability argument confusing. [..Google] points to no Java apps that either pre-dated or post-dated Android that could run on the Android platform." [1] [1] http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/13-1021.Opinion.5-7-2014.1.PDF http://www.cafc.uscourts.gov/sites/default/files/opinions-or...
  - iam-TJ 6y ago
    Google didn't argue on interoperability since that would have torpedoed their core arguments that Android is a transformative work creating a new market outside of, and different from, Sun Java Standard Edition. To argue interoperability Google would have needed to copy the entire JAVA SE API. The key difference is that Java SE (designed for desktops) API was considered by Google mostly not required on smartphone/mobile devices envisaged for Android. Sun would only licence Java SE complete (Sun was the one wanting complete interoperability). To the extent the concept of interoperability enters into it, it was on the human side; the arguments were about leveraging existing programmer knowledge to the extent that Android's requirements were shared with and common to Java SE.
    - wtallis 6y ago
      > To argue interoperability Google would have needed to copy the entire JAVA SE API. Only if Google wanted to argue interoperability as defined by Sun/Oracle. I've never seen a coherent argument why Sun's TCK should be considered the sole authority on what degree of interoperability should have legal significance in this copyright case, particularly given that Sun's TCK was part of their trademark licensing program. And there are obvious reasons why a court would shy away from letting something like Sun's TCK be used as part of a significant legal test; for example, it's really awkward for legal purposes to define something as copyright infringement while it's a work in progress, but it suddenly becomes okay as soon as it attains the status of being 100% compatible and bug-free. It's also not clear how the law could reasonably handle a definition of interoperability that Sun/Oracle can unilaterally make into a moving target and add arbitrary requirements to.
reactspa 6y ago
It is fascinating that code is now being measured quantitatively. Number of "lines of code".
- benburleson 6y ago
  My first manager, when I was a young engineer at Raytheon would like a word.
  - gabereiser 6y ago
    It's 2021 and I still come across managers that use this as a metric.
    - saalweachter 6y ago
      It may be a poor metric, but it's not like we have any other metrics to measure code by. Well, "dollars / year", if you work in an industry where you can directly A-B test against revenue, but I think most of us are happiest not knowing whether our particular lines of code are EV-positive.
      - gabereiser 6y ago
        we absolutely have other metrics. Features, Stories, Ease-of-use, Dev Friendly, Qualitive Value. LoC is simply broadcasting how complex either A) the problem is (fair) or B) how you've made it (not fair) - most fall into the latter camp. Code bases like kubernetes come to mind for LoC far exceeding its value. Code bases like Quake3 come to mind for LoC that provide tremendous value. Every line is an explicit decision to improve the code or make it worse. Refactoring a system to be generic and re-usable, for example, would reduce LoC yet provide tremendous value. If I were her manager, would I deduct points for -2000 LoC? Would I praise her for taking copy-pasta and making a pattern? I know which I'd choose.
- sriku 6y ago
  I suppose it makes sense from the perspective of copyright law, which protects artifacts. After all, one could say the same for quoting from a famous literary work .."ha now they're valuing literature in terms of number of words of prose!"
dmitryminkovsky 6y ago
I'm glad about this outcome, because I agree the other outcome would have had a devastating effect on software development. I also appreciate this fair use argument, especially when you point out the code in question was 0.4% of the entire API. Still, I'll always struggle with the idea that "the amount and substantiality of the portion used" when copying an interface is comparable to copying an implementation. The interface is, intellectually, the substantially heavier, "bigger picture" component of the API than the implementation. In my view they are apples and oranges. So, I'm glad this was the outcome. But I'll always feel like there was something wrong with Googe taking the Java SE interfaces and using them like they did, gratis.
- shadowgovt 6y ago
  I can recommend focusing on Justice Thomas' dissent, which contains a section related to this topic. I believe Justice Thomas agrees with your assessment, and he raises concern that the SCOTUS has essentially made APIs practically uncopyrightable (in that they will 100% of the time find that it's fair-use to use them). I actually disagree with him, but only in one sub-category: I think a SCOTUS ruling would be harder to predict in a situation where someone 100% copied an API that had no implementation. That removes the mitigating factor of what portion of the work was used. Ironically the most protected APIs may be the ones nobody implements.
  - spacemanmatt 6y ago
    Justice Thomas wrote explicitly that he thought the majority blurred the lines between implementation and declaration. I think he's wrong by virtue of some disability to follow the winning argument logically. Clarence is sheer idiot.
    - dang 6y ago
      Please make your substantive points without calling names. https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html
hammock 6y ago
So if I copy the entire A volume of Encyclopedia Britannica, but leave B-Z alone, I'm good?
- franklampard 6y ago
  No but it’s okay to copy all the entry names in the encyclopedia and fill in the content yourself
  - benley 6y ago
    This is an excellent metaphor but now I am curious, is it literally true?
    - nickspag 6y ago
      Probably not? The crux of the opinion seems to grant fair use because it enabled a "new and transformative use," which is a box that a different line of encyclopedias doesn't seem to check.
    - ant1oz 6y ago
      Yes.
    - shmageggy 6y ago
      Two distinctions come to mind: the encyclopedia text doesn't have a "functional purpose" in the same way as the implementation of an API does, and thus there isn't a market of users who have pre-existing skills with encyclopedia entries that they could put to use if the entries were copied to another platform. In my non-lawyerly reading of the first bit of the decision it seemed they leaned on those aspects quite a bit.
    - lostcolony 6y ago
      Would have to be tested in court. Certainly, the fact that competing encyclopedias exist, and have for hundreds of years, with > 99% identical entry names (but of course, substantively different content), and that predicated not on any given invention or IP but rather the common use English language, would, I think, make the judges rather reluctant to rule differently even should there be 100% match in entries.
zucker42 6y ago
It's also good that Breyer wrote this opinion, given that he was one of the two judges who dissented in Eldred v. Ashcroft almost 20 years ago[1]. Lessig called that opinion "perhaps the best opinion [Breyer] has ever written"[2] in his retrospective on the case. [1] https://en.wikipedia.org/wiki/Eldred_v._Ashcroft https://en.wikipedia.org/wiki/Eldred_v._Ashcroft [2] https://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp https://www.legalaffairs.org/issues/March-April-2004/story_l...
- selimthegrim 6y ago
  Were there any Breyer counterfactuals?
LogicUpgrade 6y ago
> "Google copied approximately 11,500 lines of declaring code from the API, which amounts to virtually all the declaring code needed to call up hundreds of different tasks. Those 11,500 lines, however, are only 0.4 percent of the entire API at issue, which consists of 2.86 million total lines. In considering “the amount and substantiality of the portion used” in this case, the 11,500 lines of code should be viewed as one small part of the considerably greater whole. As part of an interface, the copied lines of code are inextricably bound to other lines of code that are accessed by programmers. Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment." > Sanity prevailed! This judgment could have had devastating consequences and turned software development into a copyright nightmare. This judgment is the equivalent of someone taking a movie script, shooting a new movie out of it without changing a word, and the court declaring this "fair use" of the script. Software development wouldn't have turned into a nightmare unless you decide to steal a platform. Which most people don't need to do in order to do their work.
- rhodozelia 6y ago
  Maybe it is the same as using a similar plot, but with 0.4% of code lines being the same I think the analogy doesn’t carry through to using a script word for word.
  - LogicUpgrade 6y ago
    How many lines is a script? Is it more than the 11500 lines Google copied? It's actually way less. And it's literally word for word. Can we be intellectually honest and not lie about the vast amount of work being copied here?
    - unionpivo 6y ago
      yes and most of the api is similar or copied from programming languages that came before java.
    - dang 6y ago
nullifidian 6y ago
An alternative take, which I'm sure won't be popular, is that now, with an interpretation taken to the extreme, a megаcorporation can basically steal your (let's say a small startup's) platform (in case you refuse to sell it for ethical or some other reasons), by re-implementing it and investing much more resources which you don't have, to make it more attractive to customers. I'm ok with either decision, but, depending on how this precedent going to be interpreted, it could have far reaching consequences, maybe unintentional/undesired ones too.
- galphanet 6y ago
  Ho you mean Amazon AWS?
- Frost1x 6y ago
  I think that's always been a threat. If a large business decides to target an area you develop a system for, you're basically out of luck unless you have some novel IP that's difficult to replicate. You really have to have something niche, patent it, etc. otherwise you just roll the dice that massive entity X doesn't steamroll your livelihood out of business.
  - nullifidian 6y ago
    Well, before this decision in a situation like this you would at least be able to retain your existing customers who are already invested in your platform, due to API incompatibilities etc, but with the ability to painlessly re-implement platforms the large business would take your existing customers too, and reuse the platform momentum that you've built.
    - skinkestek 6y ago
      So companies would have to compete on pricing, availability, customer service etc etc instead of by being first to create lock in? Seems like a net benefit to me :-)
      - 6y ago
outsomnia 6y ago
Yes... Sanity prevailed, no thanks at all to SCOracle.
matheusmoreira 6y ago
> Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment. Also known as compatibility and interoperability. I'm so happy to see that judges understand their importance.
- comex 6y ago
  > Also known as compatibility and interoperability. Actually, not really. Both this ruling and the lower courts' rulings in the case operated under the strange assumption that Android was not interoperable with Oracle Java, leaving programmer familiarity as the only reason Google copied the APIs. For example, in the Federal Circuit ruling that the Supreme Court just overruled, they complain that Google "points to no Java apps that either pre-dated or post-dated Android that could run on the Android platform". True; but of course third-party libraries often can run on both Android and Oracle Java, and their importance seems to have been lost on everyone involved in the case... including Google's own lawyers. Thankfully, Google won anyway, so any defendant in a future case who can make a better interoperability argument will be in an even stronger position.
mayank 6y ago
> This judgment could have had devastating consequences and turned software development into a copyright nightmare. It’d sure have made the practice of taking someone else’s API and re-implementing the innards a lot more interesting: https://docs.oracle.com/en-us/iaas/Content/Object/Tasks/s3compatibleapi.htm https://docs.oracle.com/en-us/iaas/Content/Object/Tasks/s3co...
- chris_wot 6y ago
  The WINE and ReactOS guys must be cheering!
  - hannasanarion 6y ago
    It's a win for all open software. Torvalds and Stallman didn't ask Bell's permission before re-implementing Unix
    - curt15 6y ago
      Why was this comment downvoted? Does GNU/Linux not largely reimplement proprietary Unix?
      - kyberias 6y ago
        Yes why? Doesn't it?
        hannasanarion 6y ago
        It does. There are some who would argue that the Linux copyright fight is already resolved because of the SCO suits, but that's wrong because A: some of those suits are still ongoing, and B: the suits never alleged infringement based on the API alone, SCO was claiming that Linux copied functional code in multiprocessing modules (we don't know which functions because they demand secrecy, even though it's open source). Not even SCO, trolls that they are, were insane enough to claim that the APIs themselves are copyrighted.
temp-dude-87844 6y ago
I wouldn't celebrate a victory yet. As is often the case, the court's choice of tests simply will serve as a blueprint for others on how to avoid themselves being caught in the same kind of result. Based on this court decision, it's apparently fair use to lift someone else's API and use it to jumpstart programmer familiarity with your product, if the author of the API previously tried to achieve success in that narrowly-construed, retroactively-interpreted exact same market segment and wasn't very successful. I see a few things coming out of this. IP holder companies will become even more common: they will be used to hold copyright to one API and license it out to customers -- including independent companies that you would currently recognize as part of the same platform. But because the IP holder does not provide an implementation and therefore does not 'compete' in a market segment, any unlicensed use of it is necessarily infringing: there's no innate functionality with which one can interoperate under the doctrine of fair use.
- amelius 6y ago
  > IP holder companies will become even more common: they will be used to hold copyright to one API and license it out to customers Not after this precedent, which says that APIs are free. What will happen: Intel licensing the i86 instruction set will not be possible from now on, same for ARM.
  - my123 6y ago
    Those are protected by patents, not copyrights.
  - EgoIncarnate 6y ago
    This ruling doesn't really change anything with respect to CPU instructions. The fair use defense doesn't cover patents. Patents are what are generally what is used by Intel, etc to protect (and license) new CPU instructions and provide protection for novel ideas/inventions for up to 20 years. Copyright generally protects specific expressions/implementations of an idea and last up to 95 years for corporate patents, or 70 years + the lifetime of the author for individual patents. For completeness there is also trademarks which cover names and logos which can last indefinitely, as long as they are in commercial use. The text of a CPU instruction specification would be covered by copyright, the algorithm for implementing the instruction by a patent, and the branding (ex: MMX) by trademark.
lumost 6y ago
Can't this argument be used to copy the x86 interface and avoid paying license fees to either Intel or ARM for the instruction set?
- monocasa 6y ago
  The word on the street is that is primarily protected by patents, which explicitly protect against from scratch competing implementations, unlike copyright protection which only protects against verbatim copying of the original work. On the plus side though, they only get 20 years of protection. x86-64 in it's original form should be up for grabs pretty soon here.
- heavyset_go 6y ago
  https://en.wikipedia.org/wiki/Influence_of_the_IBM_PC_on_the_personal_computer_market https://en.wikipedia.org/wiki/Influence_of_the_IBM_PC_on_the...
d3ntb3ev1l 6y ago
So if Java had just bloated their code and those apis code footprint represented a larger % of the overall they’d be guilty? Or if Java trimmed a bunch of non essential packages into modules/extensions Google would be guilty It seems to me the judge is saying, “the house was full of 10 tons of jewelry but the robbers only took 10 pounds so that isn’t really stealing lol “
- 1-6 6y ago
  Now the jewelry stores will have to become smaller so that there will be 1-2 jewels per store. When something gets stolen, it'll be 50-100%.
- geodel 6y ago
  More like 10 million pages of books, Reading 10K pages does not mean one stole all the knowledge.
- bschne 6y ago
  I think this part here is important regarding your interpretation — it‘s not just about loc > Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment.
- xapata 6y ago
  Who is this "Java" you're personifying? Perhaps the measurement should have been a count of bytecode instructions rather than lines of code.
- daniel-thompson 6y ago
  > So if Java had just bloated their code and those apis code footprint represented a larger % of the overall they’d be guilty? Under the fair use doctrine, maybe. Fair use in the US is literally about being able to use "limited" parts of a copyrighted work without getting permission from the copyright holder. What is "limited"? It depends, but 0.4% could reasonably be called limited. > It seems to me the judge is saying, “the house was full of 10 tons of jewelry but the robbers only took 10 pounds so that isn’t really stealing lol “ Copyright and fair use apply to the creative substance of the work (in your example, the design on the jewelry, perhaps), not to physical instances of it (the actual pieces of jewelry in the house).
burnte 6y ago
Read Thomas' dissent, it'sabsolutely insane. He says how those 11k lines are basically 97.5% of Java's entire usefulness, and billions of dollars of value to Oracle from an Amazon deal. Absurdity.
- jandrese 6y ago
  Thomas lives in a weird alternative universe where logic works differently. His dissents are always a trip.
  - esarbe 6y ago
    Yeah. He's got a strange mind.
  - burnte 6y ago
    He really doesn, he and Scalia were the reliable crazy uncles of the court. Looks like Alito is trying to take up Scalia's mantle. I sear to god if Thomas had to rule on a runaway slave he'd rule for the slaveholder.
    - ncallaway 6y ago
      I don't agree with this. I _hated_ Scalia while he was on the bench. I fundamentally disagreed with him on a significant amount of his opinions. Their actual opinions though are of such a different quality to me. Scalia's opinions I could absolutely follow the logic, and at times I found myself sometimes dispairing as I became convinced he might be right on an issue. Essentially, Scalia's logic usually felt on point to me, we just had deep axiomatic differences in how the law should operate and how the constitution should be applied to laws. Thomas, though, I sometimes have a hard time understanding the argument he's presenting, and sometimes have a "how do you even believe that" reaction to his opinions. Again, I think I disagreed strongly with Scalia opinions about as often as I do Thomas opinions, I just think they were for very different reasons.
      - whymauri 6y ago
anonytrary 6y ago
Yeah it sounds like they were being sued over building a compatibility layer. That's nuts. Good thing the right decision was made :)

oconnor663 6y ago

Question from a layman: Does "interoperability" as a concept have any legal relevance here? Like focusing on programmer skills seems kind of beside the point, which is really for two pieces of software to be able to interoperate.

lostcolony 6y ago
Also speaking as a layman, but yes. Fair use has, as one of its four factors, the purpose and character of the use, to which interoperability is of definite relevance. It explains -why- the API was reused, even if the internals are entirely different. Not because it saved Google work, or there was some sort of competitive edge against Java SE to be gained by doing so.
TinoDidriksen 6y ago
Yes, reverse engineering for the purpose of interoperability is one of the things explicitly allowed by laws such as DMCA.
- teraflop 6y ago
  The decision talks about "interoperability" as a general concept, but neither the DMCA nor reverse engineering is at all relevant to its legal reasoning.
torstenvl 6y ago
Interoperability does have legal relevance, but because of programmer skills. Part of the fair use analysis turns on the legitimate goal of allowing programmers to use their skills in Java on the new platform. IAAL but IANAIPL and most emphatically IANYL
scj 6y ago
IANAL: Merger Doctrine is closest thing I'm aware of.
kmeisthax 6y ago
There's already Ninth Circuit precedent in favor of it. For example, Sony tried to sue two commercial PlayStation emulator developers and the Ninth rejected the lawsuit on all counts (and one of those cases is even cited in this opinion). The court has to talk about programmer skills because Android (at least, the versions before they switched to OpenJDK) was not entirely source- or binary-compatible with Java SE programs. In fact, the reason why they couldn't license Java SE was that Sun insisted on Android being locked into compatibility in the first place. So this entirely represents an expansion of existing fair use precedent: now, not only does fair use apply to full reimplementations for the sake of interoperability, but also partial reimplementations made for the sake of programmer convenience.
comex 6y ago
Yes, interoperability is relevant, because it affects the necessity of copying that particular code rather than making one's own substitute, which in turn affects fair use. But Google's lawyers (inexplicably, in my opinion) failed to talk much about the fact that many Java libraries are interoperable between Android and Oracle Java, leaving the courts to think only in terms of full applications which are not interoperable. Thus the courts have treated this case as if the only benefit to Android's reuse of Java was programmer familiarity. Thankfully, Google won anyway, so any defendant in a future case who can make a better interoperability argument will be in an even stronger position. Edit: For example, in the Federal Circuit ruling that the Supreme Court just overruled, they complain: "Indeed, given the record evidence that Google designed Android so that it would not be compatible with the Java platform, or the JVM specifically, we find Google's interoperability argument confusing. [..Google] points to no Java apps that either pre-dated or post-dated Android that could run on the Android platform." [1] [1] http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/13-1021.Opinion.5-7-2014.1.PDF http://www.cafc.uscourts.gov/sites/default/files/opinions-or...
- iam-TJ 6y ago
  Google didn't argue on interoperability since that would have torpedoed their core arguments that Android is a transformative work creating a new market outside of, and different from, Sun Java Standard Edition. To argue interoperability Google would have needed to copy the entire JAVA SE API. The key difference is that Java SE (designed for desktops) API was considered by Google mostly not required on smartphone/mobile devices envisaged for Android. Sun would only licence Java SE complete (Sun was the one wanting complete interoperability). To the extent the concept of interoperability enters into it, it was on the human side; the arguments were about leveraging existing programmer knowledge to the extent that Android's requirements were shared with and common to Java SE.
  - wtallis 6y ago
    > To argue interoperability Google would have needed to copy the entire JAVA SE API. Only if Google wanted to argue interoperability as defined by Sun/Oracle. I've never seen a coherent argument why Sun's TCK should be considered the sole authority on what degree of interoperability should have legal significance in this copyright case, particularly given that Sun's TCK was part of their trademark licensing program. And there are obvious reasons why a court would shy away from letting something like Sun's TCK be used as part of a significant legal test; for example, it's really awkward for legal purposes to define something as copyright infringement while it's a work in progress, but it suddenly becomes okay as soon as it attains the status of being 100% compatible and bug-free. It's also not clear how the law could reasonably handle a definition of interoperability that Sun/Oracle can unilaterally make into a moving target and add arbitrary requirements to.

reactspa 6y ago

It is fascinating that code is now being measured quantitatively. Number of "lines of code".

benburleson 6y ago
My first manager, when I was a young engineer at Raytheon would like a word.
- gabereiser 6y ago
  It's 2021 and I still come across managers that use this as a metric.
  - saalweachter 6y ago
    It may be a poor metric, but it's not like we have any other metrics to measure code by. Well, "dollars / year", if you work in an industry where you can directly A-B test against revenue, but I think most of us are happiest not knowing whether our particular lines of code are EV-positive.
    - gabereiser 6y ago
      we absolutely have other metrics. Features, Stories, Ease-of-use, Dev Friendly, Qualitive Value. LoC is simply broadcasting how complex either A) the problem is (fair) or B) how you've made it (not fair) - most fall into the latter camp. Code bases like kubernetes come to mind for LoC far exceeding its value. Code bases like Quake3 come to mind for LoC that provide tremendous value. Every line is an explicit decision to improve the code or make it worse. Refactoring a system to be generic and re-usable, for example, would reduce LoC yet provide tremendous value. If I were her manager, would I deduct points for -2000 LoC? Would I praise her for taking copy-pasta and making a pattern? I know which I'd choose.
sriku 6y ago
I suppose it makes sense from the perspective of copyright law, which protects artifacts. After all, one could say the same for quoting from a famous literary work .."ha now they're valuing literature in terms of number of words of prose!"

dmitryminkovsky 6y ago

I'm glad about this outcome, because I agree the other outcome would have had a devastating effect on software development. I also appreciate this fair use argument, especially when you point out the code in question was 0.4% of the entire API. Still, I'll always struggle with the idea that "the amount and substantiality of the portion used" when copying an interface is comparable to copying an implementation. The interface is, intellectually, the substantially heavier, "bigger picture" component of the API than the implementation. In my view they are apples and oranges. So, I'm glad this was the outcome. But I'll always feel like there was something wrong with Googe taking the Java SE interfaces and using them like they did, gratis.

shadowgovt 6y ago
I can recommend focusing on Justice Thomas' dissent, which contains a section related to this topic. I believe Justice Thomas agrees with your assessment, and he raises concern that the SCOTUS has essentially made APIs practically uncopyrightable (in that they will 100% of the time find that it's fair-use to use them). I actually disagree with him, but only in one sub-category: I think a SCOTUS ruling would be harder to predict in a situation where someone 100% copied an API that had no implementation. That removes the mitigating factor of what portion of the work was used. Ironically the most protected APIs may be the ones nobody implements.
- spacemanmatt 6y ago
  Justice Thomas wrote explicitly that he thought the majority blurred the lines between implementation and declaration. I think he's wrong by virtue of some disability to follow the winning argument logically. Clarence is sheer idiot.
  - dang 6y ago
    Please make your substantive points without calling names. https://news.ycombinator.com/newsguidelines.html https://news.ycombinator.com/newsguidelines.html

hammock 6y ago

So if I copy the entire A volume of Encyclopedia Britannica, but leave B-Z alone, I'm good?

franklampard 6y ago
No but it’s okay to copy all the entry names in the encyclopedia and fill in the content yourself
- benley 6y ago
  This is an excellent metaphor but now I am curious, is it literally true?
  - nickspag 6y ago
    Probably not? The crux of the opinion seems to grant fair use because it enabled a "new and transformative use," which is a box that a different line of encyclopedias doesn't seem to check.
  - ant1oz 6y ago
    Yes.
  - shmageggy 6y ago
    Two distinctions come to mind: the encyclopedia text doesn't have a "functional purpose" in the same way as the implementation of an API does, and thus there isn't a market of users who have pre-existing skills with encyclopedia entries that they could put to use if the entries were copied to another platform. In my non-lawyerly reading of the first bit of the decision it seemed they leaned on those aspects quite a bit.
  - lostcolony 6y ago
    Would have to be tested in court. Certainly, the fact that competing encyclopedias exist, and have for hundreds of years, with > 99% identical entry names (but of course, substantively different content), and that predicated not on any given invention or IP but rather the common use English language, would, I think, make the judges rather reluctant to rule differently even should there be 100% match in entries.

zucker42 6y ago

It's also good that Breyer wrote this opinion, given that he was one of the two judges who dissented in Eldred v. Ashcroft almost 20 years ago[1]. Lessig called that opinion "perhaps the best opinion [Breyer] has ever written"[2] in his retrospective on the case. [1] https://en.wikipedia.org/wiki/Eldred_v._Ashcroft https://en.wikipedia.org/wiki/Eldred_v._Ashcroft [2] https://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp https://www.legalaffairs.org/issues/March-April-2004/story_l...

selimthegrim 6y ago
Were there any Breyer counterfactuals?

LogicUpgrade 6y ago

> "Google copied approximately 11,500 lines of declaring code from the API, which amounts to virtually all the declaring code needed to call up hundreds of different tasks. Those 11,500 lines, however, are only 0.4 percent of the entire API at issue, which consists of 2.86 million total lines. In considering “the amount and substantiality of the portion used” in this case, the 11,500 lines of code should be viewed as one small part of the considerably greater whole. As part of an interface, the copied lines of code are inextricably bound to other lines of code that are accessed by programmers. Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment." > Sanity prevailed! This judgment could have had devastating consequences and turned software development into a copyright nightmare. This judgment is the equivalent of someone taking a movie script, shooting a new movie out of it without changing a word, and the court declaring this "fair use" of the script. Software development wouldn't have turned into a nightmare unless you decide to steal a platform. Which most people don't need to do in order to do their work.

rhodozelia 6y ago
Maybe it is the same as using a similar plot, but with 0.4% of code lines being the same I think the analogy doesn’t carry through to using a script word for word.
- LogicUpgrade 6y ago
  How many lines is a script? Is it more than the 11500 lines Google copied? It's actually way less. And it's literally word for word. Can we be intellectually honest and not lie about the vast amount of work being copied here?
  - unionpivo 6y ago
    yes and most of the api is similar or copied from programming languages that came before java.
  - dang 6y ago

nullifidian 6y ago

An alternative take, which I'm sure won't be popular, is that now, with an interpretation taken to the extreme, a megаcorporation can basically steal your (let's say a small startup's) platform (in case you refuse to sell it for ethical or some other reasons), by re-implementing it and investing much more resources which you don't have, to make it more attractive to customers. I'm ok with either decision, but, depending on how this precedent going to be interpreted, it could have far reaching consequences, maybe unintentional/undesired ones too.

galphanet 6y ago
Ho you mean Amazon AWS?
Frost1x 6y ago
I think that's always been a threat. If a large business decides to target an area you develop a system for, you're basically out of luck unless you have some novel IP that's difficult to replicate. You really have to have something niche, patent it, etc. otherwise you just roll the dice that massive entity X doesn't steamroll your livelihood out of business.
- nullifidian 6y ago
  Well, before this decision in a situation like this you would at least be able to retain your existing customers who are already invested in your platform, due to API incompatibilities etc, but with the ability to painlessly re-implement platforms the large business would take your existing customers too, and reuse the platform momentum that you've built.
  - skinkestek 6y ago
    So companies would have to compete on pricing, availability, customer service etc etc instead of by being first to create lock in? Seems like a net benefit to me :-)
    - 6y ago

outsomnia 6y ago

Yes... Sanity prevailed, no thanks at all to SCOracle.

matheusmoreira 6y ago

> Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment. Also known as compatibility and interoperability. I'm so happy to see that judges understand their importance.

comex 6y ago
> Also known as compatibility and interoperability. Actually, not really. Both this ruling and the lower courts' rulings in the case operated under the strange assumption that Android was not interoperable with Oracle Java, leaving programmer familiarity as the only reason Google copied the APIs. For example, in the Federal Circuit ruling that the Supreme Court just overruled, they complain that Google "points to no Java apps that either pre-dated or post-dated Android that could run on the Android platform". True; but of course third-party libraries often can run on both Android and Oracle Java, and their importance seems to have been lost on everyone involved in the case... including Google's own lawyers. Thankfully, Google won anyway, so any defendant in a future case who can make a better interoperability argument will be in an even stronger position.

mayank 6y ago

> This judgment could have had devastating consequences and turned software development into a copyright nightmare. It’d sure have made the practice of taking someone else’s API and re-implementing the innards a lot more interesting: https://docs.oracle.com/en-us/iaas/Content/Object/Tasks/s3compatibleapi.htm https://docs.oracle.com/en-us/iaas/Content/Object/Tasks/s3co...

chris_wot 6y ago
The WINE and ReactOS guys must be cheering!
- hannasanarion 6y ago
  It's a win for all open software. Torvalds and Stallman didn't ask Bell's permission before re-implementing Unix
  - curt15 6y ago
    Why was this comment downvoted? Does GNU/Linux not largely reimplement proprietary Unix?
    - kyberias 6y ago
      Yes why? Doesn't it?
      - hannasanarion 6y ago
        It does. There are some who would argue that the Linux copyright fight is already resolved because of the SCO suits, but that's wrong because A: some of those suits are still ongoing, and B: the suits never alleged infringement based on the API alone, SCO was claiming that Linux copied functional code in multiprocessing modules (we don't know which functions because they demand secrecy, even though it's open source). Not even SCO, trolls that they are, were insane enough to claim that the APIs themselves are copyrighted.

temp-dude-87844 6y ago

I wouldn't celebrate a victory yet. As is often the case, the court's choice of tests simply will serve as a blueprint for others on how to avoid themselves being caught in the same kind of result. Based on this court decision, it's apparently fair use to lift someone else's API and use it to jumpstart programmer familiarity with your product, if the author of the API previously tried to achieve success in that narrowly-construed, retroactively-interpreted exact same market segment and wasn't very successful. I see a few things coming out of this. IP holder companies will become even more common: they will be used to hold copyright to one API and license it out to customers -- including independent companies that you would currently recognize as part of the same platform. But because the IP holder does not provide an implementation and therefore does not 'compete' in a market segment, any unlicensed use of it is necessarily infringing: there's no innate functionality with which one can interoperate under the doctrine of fair use.

amelius 6y ago
> IP holder companies will become even more common: they will be used to hold copyright to one API and license it out to customers Not after this precedent, which says that APIs are free. What will happen: Intel licensing the i86 instruction set will not be possible from now on, same for ARM.
- my123 6y ago
  Those are protected by patents, not copyrights.
- EgoIncarnate 6y ago
  This ruling doesn't really change anything with respect to CPU instructions. The fair use defense doesn't cover patents. Patents are what are generally what is used by Intel, etc to protect (and license) new CPU instructions and provide protection for novel ideas/inventions for up to 20 years. Copyright generally protects specific expressions/implementations of an idea and last up to 95 years for corporate patents, or 70 years + the lifetime of the author for individual patents. For completeness there is also trademarks which cover names and logos which can last indefinitely, as long as they are in commercial use. The text of a CPU instruction specification would be covered by copyright, the algorithm for implementing the instruction by a patent, and the branding (ex: MMX) by trademark.

lumost 6y ago

Can't this argument be used to copy the x86 interface and avoid paying license fees to either Intel or ARM for the instruction set?

monocasa 6y ago
The word on the street is that is primarily protected by patents, which explicitly protect against from scratch competing implementations, unlike copyright protection which only protects against verbatim copying of the original work. On the plus side though, they only get 20 years of protection. x86-64 in it's original form should be up for grabs pretty soon here.
heavyset_go 6y ago
https://en.wikipedia.org/wiki/Influence_of_the_IBM_PC_on_the_personal_computer_market https://en.wikipedia.org/wiki/Influence_of_the_IBM_PC_on_the...

d3ntb3ev1l 6y ago

So if Java had just bloated their code and those apis code footprint represented a larger % of the overall they’d be guilty? Or if Java trimmed a bunch of non essential packages into modules/extensions Google would be guilty It seems to me the judge is saying, “the house was full of 10 tons of jewelry but the robbers only took 10 pounds so that isn’t really stealing lol “

1-6 6y ago
Now the jewelry stores will have to become smaller so that there will be 1-2 jewels per store. When something gets stolen, it'll be 50-100%.
geodel 6y ago
More like 10 million pages of books, Reading 10K pages does not mean one stole all the knowledge.
bschne 6y ago
I think this part here is important regarding your interpretation — it‘s not just about loc > Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment.
xapata 6y ago
Who is this "Java" you're personifying? Perhaps the measurement should have been a count of bytecode instructions rather than lines of code.
daniel-thompson 6y ago
> So if Java had just bloated their code and those apis code footprint represented a larger % of the overall they’d be guilty? Under the fair use doctrine, maybe. Fair use in the US is literally about being able to use "limited" parts of a copyrighted work without getting permission from the copyright holder. What is "limited"? It depends, but 0.4% could reasonably be called limited. > It seems to me the judge is saying, “the house was full of 10 tons of jewelry but the robbers only took 10 pounds so that isn’t really stealing lol “ Copyright and fair use apply to the creative substance of the work (in your example, the design on the jewelry, perhaps), not to physical instances of it (the actual pieces of jewelry in the house).

burnte 6y ago

Read Thomas' dissent, it'sabsolutely insane. He says how those 11k lines are basically 97.5% of Java's entire usefulness, and billions of dollars of value to Oracle from an Amazon deal. Absurdity.

jandrese 6y ago
Thomas lives in a weird alternative universe where logic works differently. His dissents are always a trip.
- esarbe 6y ago
  Yeah. He's got a strange mind.
- burnte 6y ago
  He really doesn, he and Scalia were the reliable crazy uncles of the court. Looks like Alito is trying to take up Scalia's mantle. I sear to god if Thomas had to rule on a runaway slave he'd rule for the slaveholder.
  - ncallaway 6y ago
    I don't agree with this. I _hated_ Scalia while he was on the bench. I fundamentally disagreed with him on a significant amount of his opinions. Their actual opinions though are of such a different quality to me. Scalia's opinions I could absolutely follow the logic, and at times I found myself sometimes dispairing as I became convinced he might be right on an issue. Essentially, Scalia's logic usually felt on point to me, we just had deep axiomatic differences in how the law should operate and how the constitution should be applied to laws. Thomas, though, I sometimes have a hard time understanding the argument he's presenting, and sometimes have a "how do you even believe that" reaction to his opinions. Again, I think I disagreed strongly with Scalia opinions about as often as I do Thomas opinions, I just think they were for very different reasons.
    - whymauri 6y ago

anonytrary 6y ago

Yeah it sounds like they were being sued over building a compatibility layer. That's nuts. Good thing the right decision was made :)