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Interoperability is relevant to fair use, but it's not the only factor. For instance, when Florian Mueller looks at the fair use argument, he cites a number of

by comex 13y ago

Interoperability is relevant to fair use, but it's not the only factor. For instance, when Florian Mueller looks at the fair use argument, he cites a number of factors that weigh against it, of which the supposed lack of interoperability is only one: http://www.fosspatents.com/2012/05/oracle-v-google-fair-use-is-fairy-tale.html http://www.fosspatents.com/2012/05/oracle-v-google-fair-use-... http://www.fosspatents.com/2014/01/why-google-books-is-probably-fair-use.html http://www.fosspatents.com/2014/01/why-google-books-is-proba... While I'm not a lawyer, it would make sense to me for API reimplementation not to be fair use when viewed from the perspective of copying "declaring code", even if interoperability is stronger or argued stronger. Incorporating part of a copyrighted work in a new work intended for exactly the same use, which competes with the original, is not "transformative", and certainly has an "effect of the [] value of the copyrighted work"; it doesn't look much at all like normal examples of fair use, such as thumbnails and quotations. Also, I did read the decision itself, and the part about fair use didn't seem particularly friendly to Google's argument, even if the issue was remanded. In particular, "We find this particularly true with respect to those core packages which it seems may be necessary for anyone to copy if they are to write programs in the Java language." where "this" is relevance to fair use, reflects badly on the majority of packages which are not necessary to write programs in the Java language. (I think this definition of "language" is nonsense, as even though it's what a programmer would call the Java language, I think the analogy is to human languages, which were found to not be copyrightable; yet human languages include a large amount of vocabulary, which I find analogous to API declarations. However, it's what the court used.) We will have to see what happens in the Android case, including appeals, as well as any future cases (though I'd say the former has a good chance of producing a chilling effect that will greatly decrease the probability of potential subjects of the latter from even being created), but I don't agree with your relatively positive assessment of the power of fair use. Also, fair use determinations can, like in this case, be decided by the jury rather than the judge, and I trust juries far less than judges to weigh how the facts actually apply to the law rather than whether it feels like some company ripped off some other company.

saurik 13y ago
None of this responds to my point in context that the analogy "libedit is to readline as Android is to Java SE" does not hold due to arguments that were levied against Android not being applicable to libedit. I also am confused by some of your comments here regarding my stance on fair use: I think that there is a core misconception people have in this case with relation to the separation of "infringement" from "fair use", but to be clear: I would not personally bet much on Google winning fair use (though I would also not bet much against: the jury was hung before, I doubt Google will manage a more intelligent argument, and so maybe it will go either way). More importantly, though: nor am I even certain I wish/hope that Google does win, as I have great sympathy for the argument that they were never intending to build an interoperable system. I tried very hard to not put a strong opinion in my comment on the other thread (as I really and truly can appreciate a number of other consistent positions, including ones as strong as "copyright is inherently wrong"), so I'm guessing you just assumed me to be arguing for the thing you wanted (which sounds like "Google should win"): I maintain my "relatively positive assessment" even in the situation where Google loses, as I think this case is materially different than ones I care about. Finally, I will point out that you are preaching to the choir on "chilling effects": that is what my entire final paragraph both admits and (in the nod to the comment from grellas with respect to "uncertainty") laments. The only positive thing is that "interoperability" does have some status in the world of copyright, if nothing else in the DMCA's reverse engineering restrictions, and there is a wide pool of precedent for the legality of building systems based on the knowledge from said reverse engineering (so it isn't just that you get to reverse engineer things and then feel satisfied with the knowledge: you get to release production systems that embody that learned knowledge).
- comex 13y ago
  I'm sorry if my argument was unclear, but I was attempting to say my best guess is that fair use in this case is untenable regardless of the interoperability argument, and thus also in cases where interoperability was more strongly attempted. Of course, there would be many individual factors involved in any other court case, and it's not like a jury in the Android case could set a precedent one way or another (although an appeal could), but even so.

by comex 13y ago

saurik 13y ago

None of this responds to my point in context that the analogy "libedit is to readline as Android is to Java SE" does not hold due to arguments that were levied against Android not being applicable to libedit. I also am confused by some of your comments here regarding my stance on fair use: I think that there is a core misconception people have in this case with relation to the separation of "infringement" from "fair use", but to be clear: I would not personally bet much on Google winning fair use (though I would also not bet much against: the jury was hung before, I doubt Google will manage a more intelligent argument, and so maybe it will go either way). More importantly, though: nor am I even certain I wish/hope that Google does win, as I have great sympathy for the argument that they were never intending to build an interoperable system. I tried very hard to not put a strong opinion in my comment on the other thread (as I really and truly can appreciate a number of other consistent positions, including ones as strong as "copyright is inherently wrong"), so I'm guessing you just assumed me to be arguing for the thing you wanted (which sounds like "Google should win"): I maintain my "relatively positive assessment" even in the situation where Google loses, as I think this case is materially different than ones I care about. Finally, I will point out that you are preaching to the choir on "chilling effects": that is what my entire final paragraph both admits and (in the nod to the comment from grellas with respect to "uncertainty") laments. The only positive thing is that "interoperability" does have some status in the world of copyright, if nothing else in the DMCA's reverse engineering restrictions, and there is a wide pool of precedent for the legality of building systems based on the knowledge from said reverse engineering (so it isn't just that you get to reverse engineer things and then feel satisfied with the knowledge: you get to release production systems that embody that learned knowledge).

comex 13y ago
I'm sorry if my argument was unclear, but I was attempting to say my best guess is that fair use in this case is untenable regardless of the interoperability argument, and thus also in cases where interoperability was more strongly attempted. Of course, there would be many individual factors involved in any other court case, and it's not like a jury in the Android case could set a precedent one way or another (although an appeal could), but even so.