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.
Copyright is not just about software.
Imagine a world in which you write a novel, let's call it Harry Potter, and publish it. And then I see people liking it, so I publish it too, but I can sell it cheaper because I don't have to recoup the costs of having written it.
Or imagine you write and record a song, let's call it Revolution. A shoe company can use that exact recording in an advertisement without paying you.
I respect the radicality of your position, but I hope you understand you are proposing to burn the creative arts to the ground.
However, society should use IP laws to maximize the societal goods of creation, not to keep the entrenched players' businesses profitable.
There are hundreds of ways to monetize creative works. It's laughable to think that creativity will cease if we don't allow 70 year rent-seeking on the products of that effort.
I think 90%+ percent of "societally useful" IP revenue would be preserved if copyright terms were only 1 year. If it was eliminated entirely, artists would move to crowdfunding and commission based methods of getting paid for creation.
I think the first half of last century's music industry is an interesting example: back then the vast majority of artists rose to prominence by playing already-popular songs before transitioning into their own songwriting. How much is creativity squelched by the current system where licensing is at the arbitrary discretion of the IP owner, and how should society weigh this against the potential reduced economic incentive to create works if cultural products become freely distributable?
Video games are protected by copyright but it doesn't have much teeth, modulo occasional arrests of crack authors. What happened was not that people gave up on charging for video games, but rather it created a market for sufficiently secure platforms that piracy was very hard.
10 years from creation = automatic and free. More than that for an exponentially rising yearly fee. 11th year 100 dollars, 12th year 200 dollars, 13th year 400 dollars etc.
There would be another advantage, a searchable database of copyrighted items older than 10 years.
And there are changes that aren't even all that radical, that are enough to make a counterpoint here. For example, with a sufficiently generous UBI, a lot more people would be able to pursue arts for the sake of arts. One could reasonably argue that removing the profit motive would not only not break such an arrangement, but improve the quality of the output.
I don't see how this type of creative expression is any more or less worthy of protection than any other code.
There are some other silly things mentioned in the proceedings. One is about monopolies, clearly that's wrong because there are multiple platforms and Apple and Microsoft clearly didn't need to copy these Java libraries. The QWERTY keyboard analogy is also not a good one since there's a clear difference between something that is written and consists of tens of thousands of pieces vs. a relatively simple organization of characters that's also not written (it's physical). So that would probably go under a design patent. Another is about transformative use. There were cell phones using these Java libraries before Google decided to use them as well -- the Jasper S20 using the SavaJe OS for instance. Also the doom and gloom that the industry will break is absurdly doomsday. Simple libraries or SSO wouldn't constitute the level complexity and creativity of Oracle's Java libraries.
Google could have invested in creating its own libraries and only using the 57 or so classes that make up the Java language, made its own methods, classes, and packages. But that would have been a large effort to design them, get them battle tested, and to attract a developer community around it. It was easier to cheat to get ahead and ride the coattails of Oracle's community that were familiar with the Java libraries they had created. Google knew what they were doing was wrong at the time, but the cost to get to market meant it was worth it. Google didn't stop there, they continued to copy the changes that Oracle did to its libraries and copied new packages that Oracle created.
Finally, Google had the option to take the community license, but they didn't want to contribute back. I say, hard cheese Google, pay up.
I guess I must be hallucinating all those S3-compatible libraries and services.
> As the justices pointed out, it's a one-way interoperability.
It makes a large majority of the same code work on both. That's not one-way. Porting in either direction is vastly improved versus them making their own APIs.
Also copyright protections aren’t given up because it makes a third party’s life easier. That’s also what was said during the hearing.
Yeah but if your mandate is to promote the arts and sciences then you desperately want interoperability to be easy and encouraged.
>why should only the implementation be protected?
Because copyright only protects authorship. You are the owner of your own creative works but you are not the owner of other people's creative works. What Oracle wants is to prevent independent reimplementation of Java libraries which is clearly a case of patent law not copyright law.
The Java standard library casts a "shadow". That shadow is the API but the standard library is not the API. Someone who only looks at the shadow can rebuild their own version of the standard library without directly copying the standard library. This is called clean room design and it is done all the time. Patents are the primary way of preventing clean room designs by competitors.
The fact that people on HN are insisting on bloating copyright even further makes my blood boil. IP law already created lots of solutions for all these problems. Stop trying to shoehorn everything into copyright.
Sun had a mobile platform at the time, J2ME. If you wanted to use Java on mobile, it had to be J2ME. There was no option back then to just pay money and pick'n'choose which bits of Java you wanted. In fact there still isn't, the Java guys are zealous about compatibility.
And J2ME was in turn a slow, multi-vendor, standards oriented kind of thing with multiple implementations. It was (a) very limited, (b) very buggy, (c) very poor developer UX. The issue wasn't Java itself but rather the huge variety of bugs and missing APIs between different phones. See the issues Android faced with fragmentation and multiply it by a million. In fact it was an attempt to fight fragmentation that led Sun to take the hard-line "our way or the high way" approach!
Additionally, J2ME was not open source but Google or rather Andy Rubin felt strongly that Android had to be open source under non-GPL licenses because mobile vendors hated the GPL. They could just about tolerate Linux but that was the limit. So Google was going to go to Sun and say, hey, please release one of your own profitable Java products under an open source license, so we can make more money out of Google Maps? No way.
Could Google have made Android using J2ME? Maybe. Perhaps? But it'd have been a huge ball and chain around their ankles and Android would have been radically different, likely different enough to have killed it. For instance J2ME had a simple GUI library but it was limited by the need to run on feature phones. They'd have never been able to make it as advanced as the Android GUI toolkit was, and competing with the iPhone? Forget it.
To some extent this situation was inevitable. From a technical perspective using the Java platform worked out very well for Android. But given Sun's business model at the time and the history of J2ME there was no way to take it to the next level. In hindsight we can say that Google could have replaced the entire revenue stream of J2ME, but what company wants to replace a many-vendor many-customer ecosystem with a single revenue source? Nobody would do that!
They could have yes, with Java SE actually
> The SavaJe OS was a monolithic OS-and-Java platform, an implementation of Sun Microsystems' Java Standard Edition, as opposed to the more limited Micro Edition usually offered on mobile phones.
https://en.wikipedia.org/wiki/SavaJe
Also the Nokia and Sony-Ericson extensions to J2ME were quite good, while keeping compatibility with J2ME related specifications.
So much that they eventually rebooted the whole thing with ART.
Apparently Swing was appropriate for SavaJE, go figure.
Well, the original lawmakers agree. They set a 14 year maximum. In other words: They acknowledged the necessity of copyright but they think it should only be temporary and not exist.
The problem is that it is too damn long nowadays.
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.
It would be more about copying the batteries terminal structure, such that you could build products compatible with the battery or a battery compatible with the products. It snot about copying the battery, its about supporting interoperability. That's what is at risk here. Sixty seven different kinds of outlets, or arbitrarily expensive ones where the "design" itself is licesned, instead of the code.
I think this is a very important point. I haven't read all of the briefs in this case, or looked at the arguments presented at the hearing, so I don't know if Google's lawyers stressed this point, but they sure ought to.
I like this framing and think it’s entirely correct, but I don’t agree that it necessarily dooms the interoperability argument.
Google wasn’t trying to achieve compatibility with existing code (for which, you’re right, they’d have needed to take the whole set) but rather compatibility with existing developers. Arguably, that is still interoperability.
You should distinguish the concepts of copyright and patent. A hardware design, like a battery, is not copyrightable in general. The technical drawings or a written description can be copyrighted, but the abstract technology and process cannot. Under copyright laws, it's illegal for me to duplicate your documents, but there is nothing to stop me from reverse-engineering or duplicating the same process or hardware [0], and I'm also allowed to write about this technology in my own words. Only patent laws can grant a period of exclusive control of an abstract technology to its inventors.
[0] If I obtained your documents illegally, it would be trade secret infringement, which is an independent issue from copyright nor patent.
Copyright protects authorship.
Patents protect against reinvention.
It's clear that Oracle needs a patent unless Google outright stole the standard library.
In seriousness, they didn’t copy the libraries just once, but at least 3 times over time as Oracle continued to make investments in changes and additions to the libraries.
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.
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.
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.
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.
I wonder if they win on that front if the Court will be able to dodge the question of API copyrightability in general.
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.