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Stupid hypothetical: If I created and distributed a 15 hour long song, in which I included a 3.6 minute (corresponding to 0.04% of the whole track) long song by

Stupid hypothetical: If I created and distributed a 15 hour long song, in which I included a 3.6 minute (corresponding to 0.04% of the whole track) long song by The Beatles, would I be acting illegally? Is my case helped if the Beatles song fits in very well with the rest of the piece such that my work has more artistic value, to the point where no reasonable person would say it's intended as infringement?

shakna 5y ago
> 15 hour long song, in which I included a 3.6 minute (corresponding to 0.04% of the whole track) long song by The Beatles This is posing it the wrong way around. The API is still a tiny subset of Java itself. If that 3.6 minutes is composed of any substantiate part of the Beatles' song, then you'll clearly have a problem. However, we actually do have case law in this particular case that we can refer to, specifically, around sampling. In which case, we have several instances where samples less than 3 seconds can be considered substantive, as they may reflect the tone and rhythms unique to the original artist.
- saalweachter 5y ago
  Huh, is Java the API or the implementation? The API is just a tiny amount of code, but it is an extremely valuable and difficult to create portion of the code base. A good implementation is important, but a good implementation can't make up for a bad API.
  - jrochkind1 5y ago
    The Supreme Court too was confused on this, calling the entire code base "the API" in it's decision. The [actual] API is 'the most valuable' part of the code, true, but it's also the part least protected by copyright. "Factual" descriptions/specifications are not in fact copyrighted, and the right to make a reverse-engineered clone of something was already established under US copyright. If you want to for instance make a specification and say that nobody can implement it without your permission -- you can't actually do that under copyright law (you might be able to under patent law, in some cases). If I were the judge, I would have decided the case based on that -- in favor of Google. That it's "fair use" to copy the API in fact regardless of what % of the work it was, precisely because cloning a specification is fair use, copyright is meant to protect a specific fixed expression (in the case of software that means the implementation) it's not supposed to prevent you from creating a compatible clone in the first place, and never has been interpreted that way before this case, it was a mistake, and you don't even need to decide what % of the code "the API" (the headers/method signatures) are to get there. But that's not actually what happened in the US courts, the judges involved seemed (to my reading) to be very confused about these things, and not to really understand what an "API" (as specification) was, or it's role in software. They decided on different grounds. To me making the law pretty incoherent and unclear at this point. So it goes. Also, "how difficult to create" something is has very little to do with it's protection under copyright in US law, generally, whether you think it should or not, not how the law works.
    - jrochkind1 5y ago
      (and this is also another reason this case is a very poor analogy for the Warhol case)
jrochkind1 5y ago
You have the numbers reversed -- it's not that the Beatles is only 0.04% of your piece, the analogy is if you only copied 0.04% of the Beatles piece. Google only copied 0.04% of Oracle's source code. The test for "fair use" is not only based on portion of original used. It is a four part test, where the weighting of the four parts is not specified, it's subjective (as are some of the parts). 1. Purpose and character of the copy (which mainly ends up meaning commercial vs non-commercial) 2. nature of the copyrighted work (which often ends up being about how "original" it was) 3. amount copied 4. effect on the market https://fairuse.stanford.edu/overview/fair-use/four-factors/ https://fairuse.stanford.edu/overview/fair-use/four-factors/

shakna 5y ago

> 15 hour long song, in which I included a 3.6 minute (corresponding to 0.04% of the whole track) long song by The Beatles This is posing it the wrong way around. The API is still a tiny subset of Java itself. If that 3.6 minutes is composed of any substantiate part of the Beatles' song, then you'll clearly have a problem. However, we actually do have case law in this particular case that we can refer to, specifically, around sampling. In which case, we have several instances where samples less than 3 seconds can be considered substantive, as they may reflect the tone and rhythms unique to the original artist.

saalweachter 5y ago
Huh, is Java the API or the implementation? The API is just a tiny amount of code, but it is an extremely valuable and difficult to create portion of the code base. A good implementation is important, but a good implementation can't make up for a bad API.
- jrochkind1 5y ago
  The Supreme Court too was confused on this, calling the entire code base "the API" in it's decision. The [actual] API is 'the most valuable' part of the code, true, but it's also the part least protected by copyright. "Factual" descriptions/specifications are not in fact copyrighted, and the right to make a reverse-engineered clone of something was already established under US copyright. If you want to for instance make a specification and say that nobody can implement it without your permission -- you can't actually do that under copyright law (you might be able to under patent law, in some cases). If I were the judge, I would have decided the case based on that -- in favor of Google. That it's "fair use" to copy the API in fact regardless of what % of the work it was, precisely because cloning a specification is fair use, copyright is meant to protect a specific fixed expression (in the case of software that means the implementation) it's not supposed to prevent you from creating a compatible clone in the first place, and never has been interpreted that way before this case, it was a mistake, and you don't even need to decide what % of the code "the API" (the headers/method signatures) are to get there. But that's not actually what happened in the US courts, the judges involved seemed (to my reading) to be very confused about these things, and not to really understand what an "API" (as specification) was, or it's role in software. They decided on different grounds. To me making the law pretty incoherent and unclear at this point. So it goes. Also, "how difficult to create" something is has very little to do with it's protection under copyright in US law, generally, whether you think it should or not, not how the law works.
  - jrochkind1 5y ago
    (and this is also another reason this case is a very poor analogy for the Warhol case)

jrochkind1 5y ago

You have the numbers reversed -- it's not that the Beatles is only 0.04% of your piece, the analogy is if you only copied 0.04% of the Beatles piece. Google only copied 0.04% of Oracle's source code. The test for "fair use" is not only based on portion of original used. It is a four part test, where the weighting of the four parts is not specified, it's subjective (as are some of the parts). 1. Purpose and character of the copy (which mainly ends up meaning commercial vs non-commercial) 2. nature of the copyrighted work (which often ends up being about how "original" it was) 3. amount copied 4. effect on the market https://fairuse.stanford.edu/overview/fair-use/four-factors/ https://fairuse.stanford.edu/overview/fair-use/four-factors/