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Well, yes and no. The jury ruled that Google violated copyright if and only if APIs are copyrightable. They have not ruled whether or not Google had fair use (w

Well, yes and no. The jury ruled that Google violated copyright if and only if APIs are copyrightable. They have not ruled whether or not Google had fair use (which is kind of fuzzy to me--how do you violate the law when you have fair use, or could potentially have fair use?). The judge has to determine if APIs can be copyrightable now. If the jury had ruled that Google wasn't guilty of copyright infringement of the API, then the judge wouldn't have to make that decision.

rgoddard 14y ago
Fair use is a defense against copyright violations. If you are deemed not to have a copyright violation to begin with, you do not need to use fair use as a defense.
- morsch 14y ago
  If your usage is covered by fair use, it doesn't require the approval of the rights holder and can't constitute a copyright violation. But this is arguing semantics, the problematic word being copyright violation. It goes against my intuition (and I suspect I'm not alone) to say that a violation of copyright has taken place when a usage is legal within the rules instituted by copyright. I suppose people who associate a different set of semantics with copyright violation would have to talk about legal copyright violation versus illegal copyright violation. To me, the former is contradicting and the latter is a tautology.
  - deleted 14y ago
    [deleted]
  - nknight 14y ago
    You're mostly right, kind of. I'm going to try and explain this, but it's not particularly easy. The confusion comes from both the nature of the "fair use" defense and the collision of legal vocabulary and common language. Fair use is an affirmative defense, which means that even if a violation occurred in a strict sense, that violation is excusable. It's not an "I didn't do it" argument, it's an "I shouldn't be punished because..." argument. Self-defense is a textbook example of an affirmative defense -- strictly speaking, I would violate the law by intentionally injuring or killing someone, but I can argue that I was defending myself. The question of an affirmative defense is not even relevant until there is a prima facie case showing violation, and often the fact-finder (jury or, in a bench trial, the judge) will actually find all the facts necessary for a judgement that infringement occurred before addressing the question of fair use, partly because the answers to many questions of fact for infringement are relevant to whether "fair use" holds. In the end, you do end up with a judgement that no infringement occurred, but along the way, you often end up with findings of fact that do spell out a "violation".
    - chimeracoder 14y ago
      > You're mostly right, kind of. I'm going to try and explain this, but it's not particularly easy. You did a good job, but I'd be interested to see how important details like this are thoroughly explained to a jury that's actually making a decision like this.
      - rayiner 14y ago
        In painful detail.
      - rst 14y ago
        Groklaw has a (near?) final draft of the jury instructions towards the end of a very long post here: http://www.groklaw.net/article.php?story=20120430075018880 http://www.groklaw.net/article.php?story=20120430075018880 The instructions themselves look like they'd be tens of pages of text printed out. (And note that the people deciding this are specifically chosen for their lack of background in the technologies involved --- IIRC, two candidate jurors with software experience were excused, for that very reason.)
        erichocean 14y ago
        You're entitled to a jury composed of anyone other than your peers.
        sanxiyn 14y ago
        That's a bit unfair. Oracle objected to two candidate jurors with software experience, yes, but at least not officially "for that very reason". One candidate was an HP employee and Oracle objected on the ground that Oracle has a separate suit with HP. When asked of opinions about patents, the other candidate said he has his strong opinion about patents. I mean, we all do... But I think objections were justified. Don't you agree that if you think software patents should be abolished, you should not be a juror in a software patent case?
        sokoloff 14y ago
  - baddox 14y ago
    It is a semantic argument, but I'm pretty sure US law treats fair use as a limit on copyright rather than as an excused copyright violation. rgoddard seems to be implying that all copying of a copyrighted work is illegal, which simply isn't the case. His claim is analogous to claiming that driving at any speed is in violation of the speed limit, but if you driving under the posted limit you can use that as a defense in court.
    - rayiner 14y ago
      No, US copyright law treats fair use as a defense: http://en.wikipedia.org/wiki/Fair_use#Fair_use_as_a_defense http://en.wikipedia.org/wiki/Fair_use#Fair_use_as_a_defense.
      - baddox 14y ago
        Right, but a fair use isn't an infringement. > This means that, in litigation on copyright infringement, the defendant bears the burden of raising and proving that his use was "fair" and not an infringement. [emphasis mine] Just like in a murder trial where the defendant clearly killed the victim, the defendant must prove that he or she acted in self-defense. That doesn't mean that self-defense is murder.
  - rayiner 14y ago
    > But this is arguing semantics, the problematic word being copyright violation. It goes against my intuition (and I suspect I'm not alone) to say that a violation of copyright has taken place when a usage is legal within the rules instituted by copyright. Yes semantics, but in law there is an established convention with reference to these particular semantics. The term "infringement" refers to, in this context, whether or not there was copying. Fair use is a defense, wherein even if infringement is established, liability is not established if the copying isn't the sort that should establish liability. > I suppose people who associate a different set of semantics with copyright violation would have to talk about legal copyright violation versus illegal copyright violation. To me, the former is contradicting and the latter is a tautology. That's because the headline using terminology imprecisely. It is using "ruled" when it means "found" (juries find facts, judges make rulings); it is using "violation" when it means "infringement."
- baddox 14y ago
  That seems to be mostly a semantic argument, and I think your proposed usage is not a very common one. Fair use covers things like journalistic coverage of copyrighted works, use of copyrighted works in education, and criticism (e.g. literary criticism). I don't consider those things infringements on copyright. Rather, I consider fair use to be a limitation on copyright. As far as I know, that's also how US law treats fair use.
stonemetal 14y ago
It is poorly stated in the write up. Fair use is what they call an Affirmative defense, you have to have done it before you can claim fair use as a mitigating circumstance to avoid punishment. It is kind of like using self defense as a reason to beat a murder charge. You have to claim to have killed the person before you can claim to have done it in self defense.
yummysalad 14y ago
EDIT: why am I being down voted? Oracle has a pretty strong case against Google. To address the issue of fair use and if APIs can be copyrightable: 1. Judge Alsup told Google's counsel that Google had to address the Johnson Controls decision with a view to the Java APIs. On October 3, 1989, the Ninth Circuit held the following in Johnson Controls v. Phoenix Control Systems: "A computer program is made up of several different components, including the source and object code, the structure, sequence and/or organization of the program, the user interface, and the function, or purpose, of the program. Whether a particular component of a program is protected by a copyright depends on whether it qualifies as an 'expression' of an idea, rather than the idea itself." On to paragraph 13: "Here, the district court found that the structure, sequence and organization of the JC-5000S was expression, and thus subject to protection. [...] This issue will no doubt be revisited at trial, but at this stage of the proceedings we cannot say that the district court clearly erred." http://law.justia.com/cases/federal/appellate-courts/F2/886/1173/19079/ http://law.justia.com/cases/federal/appellate-courts/F2/886/... http://www.fosspatents.com/2012/05/oracle-v-google-cant-make-apis.html http://www.fosspatents.com/2012/05/oracle-v-google-cant-make... 2. the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; http://en.wikipedia.org/wiki/Fair_use http://en.wikipedia.org/wiki/Fair_use
- parfe 14y ago
  Funny Mueller conveniently excises the text that does not support the case of, his employer, Oracle. 13. Here, the district court found that the structure, sequence and organization of the JC-5000S was expression, and thus subject to protection. The JC-5000S is a very sophisticated program, and each individual application is customized to the needs of the purchaser. This practice of adaptation is one indication that there may be room for individualized expression in the accomplishment of common functions. The district court's finding of expression is also supported by the special master's report. Regarding one particular point type, the master indicated that, although it is common for process control software packages to include provisions for collecting historical data, and using various integration and averaging schemes to do so, it is unusual to implement this function as a point type, as Johnson did. This finding also supports the view that some discretion and opportunity for creativity exist in the structure, and that the structure of the JC-5000S is expression, rather than an idea in itself. This issue will no doubt be revisited at trial, but at this stage of the proceedings we cannot say that the district court clearly erred. Copying APIs leaves no room for individualized expression. Don't be surprised Mueller misled you. You should expect it from him.
deleted 14y ago
[deleted]

rgoddard 14y ago

Fair use is a defense against copyright violations. If you are deemed not to have a copyright violation to begin with, you do not need to use fair use as a defense.

morsch 14y ago
If your usage is covered by fair use, it doesn't require the approval of the rights holder and can't constitute a copyright violation. But this is arguing semantics, the problematic word being copyright violation. It goes against my intuition (and I suspect I'm not alone) to say that a violation of copyright has taken place when a usage is legal within the rules instituted by copyright. I suppose people who associate a different set of semantics with copyright violation would have to talk about legal copyright violation versus illegal copyright violation. To me, the former is contradicting and the latter is a tautology.
- deleted 14y ago
  [deleted]
- nknight 14y ago
  You're mostly right, kind of. I'm going to try and explain this, but it's not particularly easy. The confusion comes from both the nature of the "fair use" defense and the collision of legal vocabulary and common language. Fair use is an affirmative defense, which means that even if a violation occurred in a strict sense, that violation is excusable. It's not an "I didn't do it" argument, it's an "I shouldn't be punished because..." argument. Self-defense is a textbook example of an affirmative defense -- strictly speaking, I would violate the law by intentionally injuring or killing someone, but I can argue that I was defending myself. The question of an affirmative defense is not even relevant until there is a prima facie case showing violation, and often the fact-finder (jury or, in a bench trial, the judge) will actually find all the facts necessary for a judgement that infringement occurred before addressing the question of fair use, partly because the answers to many questions of fact for infringement are relevant to whether "fair use" holds. In the end, you do end up with a judgement that no infringement occurred, but along the way, you often end up with findings of fact that do spell out a "violation".
  - chimeracoder 14y ago
    > You're mostly right, kind of. I'm going to try and explain this, but it's not particularly easy. You did a good job, but I'd be interested to see how important details like this are thoroughly explained to a jury that's actually making a decision like this.
    - rayiner 14y ago
      In painful detail.
    - rst 14y ago
      Groklaw has a (near?) final draft of the jury instructions towards the end of a very long post here: http://www.groklaw.net/article.php?story=20120430075018880 http://www.groklaw.net/article.php?story=20120430075018880 The instructions themselves look like they'd be tens of pages of text printed out. (And note that the people deciding this are specifically chosen for their lack of background in the technologies involved --- IIRC, two candidate jurors with software experience were excused, for that very reason.)
      - erichocean 14y ago
        You're entitled to a jury composed of anyone other than your peers.
      - sanxiyn 14y ago
        That's a bit unfair. Oracle objected to two candidate jurors with software experience, yes, but at least not officially "for that very reason". One candidate was an HP employee and Oracle objected on the ground that Oracle has a separate suit with HP. When asked of opinions about patents, the other candidate said he has his strong opinion about patents. I mean, we all do... But I think objections were justified. Don't you agree that if you think software patents should be abolished, you should not be a juror in a software patent case?
        sokoloff 14y ago
- baddox 14y ago
  It is a semantic argument, but I'm pretty sure US law treats fair use as a limit on copyright rather than as an excused copyright violation. rgoddard seems to be implying that all copying of a copyrighted work is illegal, which simply isn't the case. His claim is analogous to claiming that driving at any speed is in violation of the speed limit, but if you driving under the posted limit you can use that as a defense in court.
  - rayiner 14y ago
    No, US copyright law treats fair use as a defense: http://en.wikipedia.org/wiki/Fair_use#Fair_use_as_a_defense http://en.wikipedia.org/wiki/Fair_use#Fair_use_as_a_defense.
    - baddox 14y ago
      Right, but a fair use isn't an infringement. > This means that, in litigation on copyright infringement, the defendant bears the burden of raising and proving that his use was "fair" and not an infringement. [emphasis mine] Just like in a murder trial where the defendant clearly killed the victim, the defendant must prove that he or she acted in self-defense. That doesn't mean that self-defense is murder.
- rayiner 14y ago
  > But this is arguing semantics, the problematic word being copyright violation. It goes against my intuition (and I suspect I'm not alone) to say that a violation of copyright has taken place when a usage is legal within the rules instituted by copyright. Yes semantics, but in law there is an established convention with reference to these particular semantics. The term "infringement" refers to, in this context, whether or not there was copying. Fair use is a defense, wherein even if infringement is established, liability is not established if the copying isn't the sort that should establish liability. > I suppose people who associate a different set of semantics with copyright violation would have to talk about legal copyright violation versus illegal copyright violation. To me, the former is contradicting and the latter is a tautology. That's because the headline using terminology imprecisely. It is using "ruled" when it means "found" (juries find facts, judges make rulings); it is using "violation" when it means "infringement."
baddox 14y ago
That seems to be mostly a semantic argument, and I think your proposed usage is not a very common one. Fair use covers things like journalistic coverage of copyrighted works, use of copyrighted works in education, and criticism (e.g. literary criticism). I don't consider those things infringements on copyright. Rather, I consider fair use to be a limitation on copyright. As far as I know, that's also how US law treats fair use.

stonemetal 14y ago

It is poorly stated in the write up. Fair use is what they call an Affirmative defense, you have to have done it before you can claim fair use as a mitigating circumstance to avoid punishment. It is kind of like using self defense as a reason to beat a murder charge. You have to claim to have killed the person before you can claim to have done it in self defense.

yummysalad 14y ago

EDIT: why am I being down voted? Oracle has a pretty strong case against Google. To address the issue of fair use and if APIs can be copyrightable: 1. Judge Alsup told Google's counsel that Google had to address the Johnson Controls decision with a view to the Java APIs. On October 3, 1989, the Ninth Circuit held the following in Johnson Controls v. Phoenix Control Systems: "A computer program is made up of several different components, including the source and object code, the structure, sequence and/or organization of the program, the user interface, and the function, or purpose, of the program. Whether a particular component of a program is protected by a copyright depends on whether it qualifies as an 'expression' of an idea, rather than the idea itself." On to paragraph 13: "Here, the district court found that the structure, sequence and organization of the JC-5000S was expression, and thus subject to protection. [...] This issue will no doubt be revisited at trial, but at this stage of the proceedings we cannot say that the district court clearly erred." http://law.justia.com/cases/federal/appellate-courts/F2/886/1173/19079/ http://law.justia.com/cases/federal/appellate-courts/F2/886/... http://www.fosspatents.com/2012/05/oracle-v-google-cant-make-apis.html http://www.fosspatents.com/2012/05/oracle-v-google-cant-make... 2. the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include: the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; http://en.wikipedia.org/wiki/Fair_use http://en.wikipedia.org/wiki/Fair_use

parfe 14y ago
Funny Mueller conveniently excises the text that does not support the case of, his employer, Oracle. 13. Here, the district court found that the structure, sequence and organization of the JC-5000S was expression, and thus subject to protection. The JC-5000S is a very sophisticated program, and each individual application is customized to the needs of the purchaser. This practice of adaptation is one indication that there may be room for individualized expression in the accomplishment of common functions. The district court's finding of expression is also supported by the special master's report. Regarding one particular point type, the master indicated that, although it is common for process control software packages to include provisions for collecting historical data, and using various integration and averaging schemes to do so, it is unusual to implement this function as a point type, as Johnson did. This finding also supports the view that some discretion and opportunity for creativity exist in the structure, and that the structure of the JC-5000S is expression, rather than an idea in itself. This issue will no doubt be revisited at trial, but at this stage of the proceedings we cannot say that the district court clearly erred. Copying APIs leaves no room for individualized expression. Don't be surprised Mueller misled you. You should expect it from him.

deleted 14y ago

[deleted]