This might not just be a disaster for Google - it could be a disaster for software everywhere. If APIs become copyrightable, what happens to any open source software the implements a proprietary API?
Supreme court judges just do not have the conceptual framework to properly adjudicate this. I don't think it's going to be possible to teach them the difference between interface and implementation within the parameters of these arguments. And beyond that the conservative majority is predisposed to treat everything as property. This is not going to end well.
>>"that the conservative majority is predisposed to treat everything as property..."
This is misleading at best.
For example: RBG, despite her left-leaning reputation, was easily one of, if not the, most pro-copyright and pro-IP justices on the bench. (Relatedly, she also was pretty pro big business, which rarely fits the portrayed narrative.)
Not all areas of law, especially at the Supreme Court level, easily translate into right/left politics.
Everyone freaks out about social issues with SCOTUS (which is understandable), but their real impact is on economics. The destruction they've laid on the labor movement and help for big businesses is immense.
Just look at the commentary around overturning Chevron deference and non-delegation. Absolutely apocalyptic.
Is it would be positively apocalyptic to reign in the all-powerful unelected fourth branch of government the framers conveniently forgot to list in the constitution. Or to prevent Congress from creating executive branch entities that exercise the powers of all three branches of government. The SEC can make rules, sue you for violating them, and then adjudicate your violation, all under one roof. Pretty sure that’s exactly how Congress intended separation of powers to work!
If the extreme version of non-delegation took hold, it would be the end of all rational regulation. Do you REALLY want Congress writing technical documents about effective isotropic radiated power? Or the shape of curb ramps?
I don’t see how having article III remedies addresses the separation of powers issue. It just means you can kinda maybe fix up the damage afterward.
I think it’s fair to ask how far a non-delegation principle should go. There is clearly a continuum between legislation and enforcement discretion. But does that mean we should have no non-delegation principle at all? Is there a definable middle ground between Congress leaving it to executive discretion address technical minutea and Congress delegating oversight over entire sections of the economy to unelected bodies that can serve as judge, jury, and executioner?
They had a chance to end California's housing disaster in Nordlinger vs. Hahn but ruled in the favor of landlords and speculators. Justice Stevens even admitted that the law is unlikely to change under standard democratic processes.
Could you explain what you mean here? I assume from your reply to 'rayiner that you are criticising recent decisions limiting Chevron deference and applying the nondelegation doctrine. It’s confusing, because big business won the case establishing Chevron deference. Whether the principle helps big business or not depends on big business’s relationship with the relevant regulator. Is the “apocalyptic” commentary describing the past effects of Chevron deference, the current effects of limiting it, or the potential effects of future decisions further limiting it?
Sure- but then you have to be careful defining labels.
Trying to peg a generic one dimensional (left-right) or even two dimensional (social/fiscal) political position on justices is difficult, even with loosely defined labels/ categories.
It's much easier to look at justices relative position/ rank on a per-topic basis.
Alternatively, and less useful to the general public, but very useful to SCOTUS junkies, is looking at cross tabs of how often a particular justice votes with others. Especially when they break from the publically perceived left/right voting block, which is more often than most think.
Scotusblog is full of this type of analysis for those interested:
And this is, in fact, precisely how the court is theoretically supposed to work. The two-dimensional partisan framing—which, unfortunately, is very real in other domains—is what's causing the court to break down.
Kind of, yeah. Supreme court justices aren't elected, are appointed for life, and collectively have veto power over basically any law, should they choose to break (or gradually discard) historical norms.
I think it's telling that neither Biden nor Harris was willing to rule out court-packing at the presidential debates, and at this point I think they're right to leave it on the table! But, it really would mark the beginning of the end of the Supreme Court. It's easy to predict what would probably happen the next time power changed...
I think it's telling that neither Biden nor Harris was willing to rule out court-packing at the presidential debates, and at this point I think they're right to leave it on the table!
The correct answer to that question was obviously, "Congress makes the laws, including ones about the number of SC justices, not the President."
Idk about Google... But they're biased for more reasons than that.
But they are still an excellent source, and are about as good as it gets compared to most (supposed) non-partisan media these days.
Fwiw, I also believe their bias to be almost entirely unintentional, which is way more than can be said for most sites. For topical seminars, where authors might actually argue for a side, they do a decent job of getting various opinions from multiple sources, even if it's not always exactly balanced 50/50.
And they disclose all cases in which someone might be involved.
Like anything else, you still need to consider the source when reading it.
This is really an important distinction. Social issues like gay marriage and things like this are completely orthogonal. The Democratic Party as a whole is very much neoliberal or liberal as opposed to left. Liberal judges are much the same.
The DNC would be center right in Saudi Arabia? By what metric?
What is with the ridiculous hyperbole that's so common when talking about America on the internet, especially by non-Americans? Talk about "American exceptionalism" - just in a different way.
Indeed it's quite ridiculous. What they mean to say is that the DNC would be center-right in Europe, which is an incredibly Euro-centric way to look at the world. In reality, if you consider the actual bulk of the planet, which would include mainly China and India, the DNC and RNC dichotomy is rather unclassifiable.
Well, what's going on in America is being pushed down the throats of everyone in the world. You can hardly read an article without someone mentioning Trump and US politics in general. We may as well join in too!
> The Democratic Party would be considered center-right in any other country of the world, but the USA.
Any other Western democracy (including some Western-model democracies outside of the West proper), sure. But then the left-right axis is not really readily transferrable to outside of that domain, anyway.
It depends on how you define things. For example, do you measure by where Democrats end up in practice, or where they want to go? For example, the United States is to the right of Germany in terms of universal healthcare. But Medicare 4 All, where many Democrats appear to want to go in the long term--though they disagree about how quickly they want to get there--would be quite to the left compared to the multi-payor mandatory insurance system currently in place in Germany.
It also varies quite a bit by subject-area. In Germany, the constitutional court held (around the same time as Roe) that legalized abortion was unconstitutional, violating the fetus's right to life. Today, it is technically still illegal, but decriminalized up to 12 weeks. (Shorter than in almost every state in the U.S.) The abortion rate in Germany is much lower. The Democratic party's views on abortion would not be considered center-right in Germany. On gay rights, Germany got legalized same-sex marriage a couple of years after the U.S. And things like surrogacy, which gay male couples often rely on to have kids, is illegal.
Or, consider that Merkel, a member of the center-right Christian Democratic Union (CDU) has called for a ban on burqa. To my knowledge, even Trump has not said anything like that. Similarly, on immigration, while Merkel allowed Muslim refugees, her successor declared that a "mistake" which the country had "learned from." Democratic favorability to refugees would not be a center-right position in Germany.
In the area of religion, the U.S. is extremely left wing compared to every country but France. In the U.S., teaching religion (as such) is banned in public schools. In the U.K., Germany, Italy, and Spain (four of the five largest EU countries) it's actually required, either by statute or by the constitution. Children have a right to receive a religious education at the public expense in these countries.
In the area of taxes, the Democratic Party is center-right in some ways but quite left win in others. Merkel has championed Germany following along with Trump's corporate tax cuts. The Democrats' proposal to repeal that would not be a center-right position in Germany. The Democrats' proposal to tax capital gains as ordinary income is quite left wing. Most Western European countries, including Germany, have preferential treatment for capital gains taxes. In general, the U.S. has the most progressive tax code in the OECD: https://opportunitywa.org/u-s-federal-income-tax-structure-m...
But Democrats' tepid support for labor unions, for example, would be considered center-right or even right-wing in Germany.
On the whole, on social, religious, and immigration issues, the current Democratic Party is solidly to the left compared to western Europe. On labor issues, it's to the right. On corporate and investment taxation, it's solidly on the left. On healthcare, its to the right, but mainly for reasons that have to do with minimizing disruption to peoples' current private insurance. Where they want to end up, single payer public insurance, is solidly on the left.
Our next Vice President will very likely be a Democrat who, in 2019, supported single-payer public healthcare, treating capital gains as ordinary income, a 35% corporate income tax rate, a financial transactions tax, publicly funded abortion with no compromises such as waiting periods, Green New Deal, free healthcare for people who immigrate illegally, etc. If she actually believed those things, she would be a solidly mainstream left politician in most European countries.
Thanks for typing this all out. The idea that American liberals would be “right wing” in Europe is just plain wrong for reasons you’ve mentioned. There’s a lot of nuance lost and you can’t really compare the two. For instance Europe is full of Christian socialist parties: something unthinkable here in the states.
> But Medicare 4 All, where many Democrats appear to want to go in the long term--though they disagree about how quickly they want to get there
Democrats generally agree that there should be universal access to health care, and a mostly agree that that should involve a public plan (not just a private subsidy) available to at least some section of the population beyond the current Medicaid population.
There is not general agreement within the Democratic Party on universal single-payer as even a long-term goal. The currently dominant neoliberal faction of the Democratic Party supports a public option as a long-term component of healthcare policy to acheive universal access, but does not generally support single-payer as a goal, in either the near or long term.
> In general, the U.S. has the most progressive tax code in the OECD
As your own source notes, net of transfers and taxes, the US has one of the least progressive systems in the OECD.
> In the area of taxes, the Democratic Party is center-right in some ways but quite left win in others. Merkel has championed Germany following along with Trump's corporate tax cuts.
You seem to be really obsessed with the CDU as your measure of center-right parties, but AFAICT the CDU is to the right of most parties labelled center-right, not just in Europe, but even in Germany specifically (which has a fairly wide range of center-right parties.)
But, yes, its really only the dominant faction of the Democratic Party that is center-right, the "progressive" faction is center to center-left by European terms, and the whole (today, with the gains the progressive wing has made over the recent years considered) is probably more center than center-right; the "Democrats are a center-right" party was most true at the height of the Clintonian neoliberalism of the Democratic Party which as faded over the last decade or so and particularly since Bernie Sanders 2016 campaign reenergized the progressive wing, though it has still not become dominant.
> There is not general agreement within the Democratic Party on universal single-payer as even a long-term goal. The currently dominant neoliberal faction of the Democratic Party supports a public option as a long-term component of healthcare policy to acheive universal access, but does not generally support single-payer as a goal, in either the near or long term.
A big majority of Democrats support Medicare 4 All: https://www.kff.org/wp-content/uploads/2020/01/9394-Figure-3.... They support a public option somewhat more, but to me it seems more like they do so to soften the transition to a single-payer system. A “public option” wouldn’t be like the multi-payer systems of Germany, Switzerland, or the Netherlands. Since it would kill private competitors in the long run, it’s just a slower road to single payer.
Regarding taxes: netting transfers mixes up the tax system from the welfare system. As the article points out, our taxation is progressive but our spending is regressive. It’s a system designed to redistribute money from the rich to the middle class, not the middle class to the poor.
As to social or religious issues, Italy or Spain would be more conservative in some respects. (Islam isn’t a recognized religion in Italy.)
The recent rise of progressives has moved Democrats sharply left in part because Europe has been moving to the right economically for decades. Low corporate and investment taxes and deregulation is gospel across the European center, but it’s disappeared among progressive Democrats. That wasn’t remarkable in 1975 but it’s remarkable today. Macron, for example, is campaigning on deregulation and a government takeover of Islam, and his major competition is to his right. Center left parties in France aren’t questioning the country’s fairly low corporate and investment taxes. Neither are those in Spain. Democrats (in particular Warren’s utterly cockamamie proposal) really stand out in that area as a throwback.
Green New Deal is a great example of this. It’s an FDR era jobs program. It stands in stark contrast to Europe, which is doing carbon pricing. Progressives seem to have developed an allergy to markets, and while the center isn’t there yet it’s not pushing back either.
I mean that’s before you get started on Sweden’s center-left party continuing to cut corporate taxes and partially privatizing social security.
Oh, I forgot about school choice. Democrats are far to the left compared to Europe in that.
> A big majority of Democrats support Medicare 4 All
Sure, a big majority of Democrats in the electorate do.
The description of the center or center-right nature of the Democratic Party is not a description of the party-in-the-electorate but the institutional party. In fact, it's frequently expressly contrasted with the views of the party-in-the-electorate to argue that the institutional party is a poor agent of its membership.
Turning to polls of the party-in-the-electorate to argue against the characterization is, at best, not understanding what the discussion is about and, at worst, the fallacy of equivocation.
> netting transfers mixes up the tax system from the welfare system.
In every state, taxes and the welfare system are already mixed up, and the division of function between them isn’t consistent fromm state to state. Viewing them separately miscasts differences in preferred vehicle with differences in preferred function. Or vice versa.
Both parties are liberal. Republicans deviate from liberalism when pandering to their religious base, and Democrats deviate from liberalism when adding to the social safety net and labor rights, pandering to their left base. Neither party takes their deviations from liberalism seriously, and both parties have an interest in not resolving those (wedge) issues to keep voters from drifting to the other party.
This is a strawman. The argument wasn't that no left-leaning people would treat things as property, but that most conservatives would. As such, you're not attacking the actual argument with your point.
It's not a strawman at all, as the original statement is clearly setting up the flip side of that argument - that left-leaning justices are less likely to do so.
Well, even then, showing one left-leaning justice with pro-property stances doesn't actually disprove that argument. Less likely things still happen some of the time.
I think the Justices were struggling a bit for analogies, but got the basic gist of the difference between implementing code and declarations.
The difficulty is that they have to think about this in terms of the relevant legal concept (merger) not the relevant technical concept (interoperability). You can copyright expressions of ideas, but not ideas themselves. Merger doctrine says you can’t copyright an expression of an idea if there is only one way to express the idea, because then the idea “merged” into the expression.
Do declarations merge into the idea of the implantation? In some sense clearly they don’t. If you have a set of functions that operate on an object, the convention in C is to put the object first and the parameters after. You “append, into this vector, this value.” In Common Lisp, it’s often reversed. You “append this value to this vector.” Both express the same idea—a command for appending a value to a vector—but there is a creative choice in the expression.
But you can think of the same idea at a lower level. “Calling a function named push to append an element to a vector where the first parameter is the vector and the second parameter is the element.” In that case, there is really one way to express that idea. Why would you think of the “idea” at such a low level? Because that’s what you’re doing when you’re interfacing with an actual API. The “idea” isn’t some abstract hypothetical function for appending, it’s the actual “push” function with parameters in the specific order.
The problem is that interoperability is not really something that goes to copyright-ability, but fair use, which comes after copyrightability. Dictating how you see the “idea” based on interoperability seems a bit like a phase ordering violation.
>> If APIs become copyrightable, what happens to any open source software the implements a proprietary API?
That has implications for language implementations too. Who would own the standard library for any given language? What about programs that call API functions? Are they derivative works too?
An API is necessarily functional first and foremost. It would cause chaos and some weird dystopian future if Oracle wins.
Another interesting take: Machine architectures expose an API, and it may become impossible for anyone but a chip manufacturer to distribute a compiler.
Machine architectures are very much copyrightable right? That's why Intel license x86 to AMD.
Thing is, for chip manufactures it makes no sense not to allow others to call this x86 API. Things could get dicier for other who try and virtualize a machine instruction set.
It might not matter to the law which side of an interface you're on, if your work is still clearly derivative (in the legal sense) of that interface design.
It is usually in the interest of the designer of the API to have as many users as possible.
BUT in this case we are talking not of using part of an API (say the Math library to implement a physics engine is assembly and link it) but of reimplementing a whole language which has, as of today an when the events discussed took place (even if we agree to hate it) an owner.
>It is usually in the interest of the designer of the API to have as many users as possible.
When they first design and publish it yes, but Oracle didn't design and publish the Java APIs, they bought them after they had becomes very popular and widely used.
At that point they don't need to care about making it popular, it already is, all they care about is milking that existing ecosystem for every penny they can get. If future API publishers care about this they can just license out their API spec, but right now Oracle just wants to be able to squeeze whoever they can until the pips squeak.
> Who would own the standard library for any given language?
Require copyright assignment or a guarantee for royalty free use by any implementation. Standards committees already have to deal with hidden patent dependencies someone might sneak in so this would just be another bullet point on paperwork that should already exist.
The standard library is owned by the people creating it, and of course your work using the standard library is a derived work of that standard library.
For example, glibc is owned by GNU, and it is licensed under the LGPL, so you are allowed to dynamically link it without having to release your own code under the GPL (or compatible). This is all happening today.
The only projects that will be more seriously affected by this decision are WINE and similar - projects that are copying the API but not the implementation. Even here, it is very likely that WINE could win on Fair Use, since their copying is obviously done for interoperability.
Also, APIs are obviously creative human works, and their purpose is first and foremost usability for the end-user.
That's an interesting question. Perhaps K&R? Or maybe their employer? Or perhaps by now the copyright may be with ANSI/ISO?
But this does raise an interesting point, about who would own copyright on something that was not believed to be copyrightable for much of its history.
What really sucks is this was a perfect time for a lawyer to use Justice Thomas' analogy to better explain the difference. I would have tried something like:
"Close your honor, but let me expand on this further. Imagine instead that your opponent publishes their calls and they are regularly available to all individuals of the general public. However, while they may describe a call for going long, they do not give any specifics if the receiver starts from the left, center, right side of the field, how fast he should go, who should block for him, etc. They essentially are just assigning a call to a general concept of 'go long'.
Now as a competitor team, I look through their publicly available calls and say "Hey, thats a good idea, we should have a call for 'go long' as well". However, in practice my team does start from the left, and then cut in the center of the field to receive the ball. This may, or may not be totally different then what my opponents choose to do when they call "go long"
The additional benefit is if I transfer a new coach onto my team, he can use the call "go long" and even though the team accomplishes the goal, possibly by a different route, he can make the call to accomplish essentially the same thing."
Note: Not a huge sports guys, so perhaps my football analogy broke down a bit there, but hopefully you get the idea.
I think the playbook is just a bad analogy because it misses that point of what an interface is. It's the means of connecting two dissimilar mechanisms. A translation layer.
I'd have argued it's more like copyrighting doorknob placement (opposite hinge, at hand height) and operation (twisting) on doors vs. patenting a novel mechanism inside the doorknob.
A football playbook is more like the blueprints of the inside of the doorknob. Of course it's patentable if playbooks are patentable (I presume they are if considered works of choreography as in a dance).
I think the QWERTY analogy quoted in the article is perfect. QWERTY is on typewriters, computers, and smartphones. Same interface, completely different implementations. And this is technology that everyday people are familiar with.
It has always seemed to me that a good analogy for the API situation would be the design of typefaces (as distinct from a particular implementation of that design through, for example, instructions in a font file), which receives special treatment in US law and is not subject to copyright in that jurisdiction.
As far as I can see (but please note that I am not even in the US, never mind a legal scholar) the relevant US law is 37 CFR § 202.1 about “Material not subject to copyright” (https://www.law.cornell.edu/cfr/text/37/202.1). This enumerates several cases that are explicitly excluded from copyright protection. One is “typeface as typeface”, which was apparently interpreted as described above in a litigated case (Eltra Corp. vs. Ringer).
An argument has certainly been made, though I can’t immediately find the original source, that this exclusion is justified because of the utilitarian nature of a typeface design: allowing one party to control all use of it would be against the public interest, because ultimately that principle could allow for all printed communication to become controlled.
It seems to me that APIs fulfil a similar purpose. They are not useful in themselves, lacking a corresponding implementation. They are, however, an essential basis for standardisation, interoperability and communication between practitioners.
Under 202.1(b) of the law cited above, another class of works excluded from copyright protection is “Ideas, plans, methods, systems, or devices, as distinguished from the particular manner in which they are expressed or described in a writing”. I wonder whether a similar argument about the utilitarian nature of APIs as a specification distinct from its implementation could be made based on that.
Or compare APIs to the car interface: steering wheel + pedals. If one car manufacturer was able to copyright them, then what are other manufacturers supposed to do? The second one can use joystick for steering, and maybe a lever for braking and acceleration. The third one has to invent something even weirder.
Everybody loses: manufacturers, because they can't easily create competing products, and users, because they have to re-learn driving every time they change car brand.
But we are talking about copyright, not patents. So to stretch your analogy. Imagine I'm a door manufacturer, or maybe a manufacturer of tools for construction so that professionals can make their own doors. I create some kind of stencil that has the doorknob placement cut-out. And maybe a few variants with places for windows and such.
The general idea of such a stencil might be patentable, even if the general standard dimensions are not. The tool is a unique idea (maybe).
But we are talking about copywritten material. The specific stencil design, that you could photocopy is the thing in question.
And that is one of several arguments Oracle made, that api interface is a stencil.
I think I would agree the law supports that argument from what I know about it, copyright is pretty broad. But at the same time, I think that is perverse and we should change the law.
If I were Oracle's lawyer, I'd respond by saying that you can have the concept of "go long", but you can't literally name it "go long" because there was an act of creativity involved in mapping that name onto the concept of a receiver running far down the field. So you have to call it "go deep" or whatever.
It's not about the names though. It's that when you look at playbooks for both teams you see that the names of all the plays are identical, and under the same headings! And you come to the conclusion that the second team must have copied the names from the first teams playbook.
Such a thing might be considered fair use if the second team's argument was they indeed copied the playbook because they had a recruited some players from the first team and keeping the names the same made it easier for them during practice. But for now the judge is suspicious that they've come up with this explanation after the fact.
Yeah, I don't like it, but given my (probably poor) understanding of copyright, I don't see how Oracle is wrong here. It would be one thing if we were just talking about something like Math.max where there's really only 1 possible way to declare it; but it's the entirety of the API.
On a pure intelligence question the justices are likely top 1% or 2% among human populations. They also have disciplined minds that allow them to use their intelligence effectively.
It’s more likely the arstechniva writer failed to understand the point of the analogy.
Having just listen to the audio, it really annoyed me that Google’s lawyer kept saying “If we can’t copy this it would be impossible to write software.” And always left of the “in Java” part. Really fucking misleading.
That's not really the court's responsibility. There is no legal definition of "interface" or "implementation". They're just trying to interpret a gray area in the law and it could come down either way.
> There is no legal definition of "interface" or "implementation".
There is a legal definition of what is included, and what is excluded, from copyrightability, and (though its quite fuzzy, in large part because it was trying to incorporate a fuzzy judicial doctrine grounded in the First Amendment into the statute) what is included, and excluded, from "fair use" even if it otherwise violated copyright.
The courts job is very much to test existing concrete things against those definitions.
"Any real solution will have to be legislated. "
So true. Congress can amend the particular section of the code to explicitly exclude APIs from being copyrightable ... if they want to.
A certification group that allows a good marketing point could also achieve. Just making up a name, "Our APIs are certified by Open API Association" might encourage developers to develop with A given company's API.
Little note: what you're really asking is whether the authors of GPL software would have grounds to sue Oracle for copyright infringement.
As another HN commenter put it to me when I made the same mistake: "The GPL is not viral." If one party breaks the terms of the license, then normal copyright goes into effect.
> So if Oracle implements a proprietary API in GPL software does that mean that all Oracle software is copyleft?
No, not at all.
OTOH, it does mean if they implement a GPL interface in proprietary software it does mean that they are in violation of copyright (barring a fair use defense) and the GPL, potentially triggering the loss-of-license provisions of the GPL and other legal consequences.
If APIs become copyrightable, we just have to change our strategy a little bit. Instead of making a compatible API, you write a program to modify other programs, which detects calls to the target API and transforms them to a shim that is not copyrighted, which can call either the copyrighted API or your new API.
First, as colejohnson66 pointed out, that may be a derivative work. This will depend on how your transformer actually works.
I can't think of any way to do it that does not involve having access at run time to a copy of the copyrighted API. If that copy is part of the transformer, there is a good chance the transform is a derivative work.
If the transformer does not include the copyrighted API, instead getting information about it from some external source that the user must supply at run time such as via an input file describing the API using some sort of API description language then it is much less likely to be a derivative work. Well, at least if it somewhat general, working with several APIs described in that language rather than just working with the one particular copyrighted API.
Second, even if it is not a derivative work, the people who use it to make the shim might be infringing. Usually that would not be your problem (unless you do something like indemnify your users, which I'll assume you would not be insane enough to do).
However, you have to at least consider contributory infringement. If I infringe someone's copyright using tools I got from you, and those tools have no substantial use other than infringing copyright, you can be held liable along with me for the infringement.
As with the derivative work case, if you can make the transformer general purpose so that it can be used for transforming APIs that are not copyrighted too, you should be able to avoid contributory infringement.
I'm thinking of a static analysis engine. "Look for function calls like this and replace them with calls to this shim and/or my new API." I am not sure how the shim could possibly be infringing as it would be my original work. (All new method names, all new module organization, all new namespaces. Maybe even different argument types, where possible.) There would be a version of the shim that would delegate to the original API, and another that would delegate to mine.
APIs being copyrightable doesn't actually harm implementations of APIs that fall under fair use. (Fair use exemptions specifically apply to copyrighted things.) Interoperability is fair use. And things like something being non-commercial, such as a lot of open source software, is a major factor in determining whether or not usage is fair. Things like WINE or NES emulators or the like would fall very comfortably into fair use.
It's nowhere near as world-ending as Google's public policy team would like you to believe. But given that Android is not fair use (it's not interoperable, they just wanted to glom on the popularity of the platform), it sucks for Google.
Sorry, but this is not an accurate summary of the state of the law. Whether Android's implementation of Java was fair use is one of the questions the Supreme Court is considering. Google was absolutely trying to achieve interoperability with Java, so if Google loses it would make it more difficult for others to claim fair use. Fair use is complicated so others might succeed where Google failed, but a loss for Google would be bad news for interoperability generally.
> Google was absolutely trying to achieve interoperability with Java
I don't think this is such an easy argument. Google's interest was ultimately the bottom line.
Without discussing the copyrightability, from a strictly monetary perspective, APIs are product that, in this case, has a very high monetary value (market share == $$$), and Google chose it for this very specific reason (developers == market share == $$$). Again, I don't imply that copyrightability is good or bad, but the entire matter has been about money, and strictly from that perspective, ownership has a sense.
I don't believe that Google was really trying to achieve interoperability. If it was then they would have passed the Java Technology Compatibility Kit (TCK) tests. Other companies did that and are legally in the clear for their Java implementations. Why didn't Google?
I'm not privy to Google's management thinking but I suspect they made that decision to save time and hit a market window. Android originally used the open source Apache Harmony Java implementation which didn't comply with the Sun (Oracle) Java license for the TCK. If Google had dropped Harmony they would have had to either write their own Java implementation from scratch or license one from another vendor like IBM. They had plenty of resources to pursue those other options but either one would have take more time and allowed Apple to build a lead in the smartphone market. So Google stuck with Harmony and now they're facing the legal consequences.
That seems incompatible with the text of Section 107, which includes the amount copied as a factor for determining fair use. The more compatible your implementation is, the more you have to copy, so the logical end of this reasoning is that Android's implementation of Java would be fair use if it had copied all of the API, not just a subset.
Which it did under open license starting from OpenJDK 9. Oracle argues probably this has given Google an advantage, which is, in technical terms, bollocks, as Oracle was not making an operating system.
> > And things like something being non-commercial, such as a lot of open source software, is a major factor in determining whether or not usage is fair.
> Why it should?
Because its explicitly a factor, in the statute, for fair use analysis.
> It would mean that implementing commercial Java runtime without Oracle license is not possible?
Maybe, maybe not. If Google loses on both copyrightability and fair use, the entire case law on API fair use will be one negative instance. We might also get a more specific test articulated in the ruling, but we have no idea what that test would be now, so its hard to speculate (well, easy to speculate, but hard to judge which speculation is more accurate) what the impact would be on any other use.
You could arguably implement Java without a license from Oracle provided you were using the GPL, as OpenJDK is released under the JDK, and presumably includes the entire Java API. The problem for Google, of course, is OEMs would've balked at being forced to open source all of their proprietary modifications to Android.
Wikipedia says the OpenJDK was released in 2007, so Google could've legally used the Java API under GPL terms, but chose not to, and also chose not to pay for Java licensing.
>would've balked at being forced to open source all of their proprietary modifications to Android
OpenJDK have linking exception, so it doesn't apply. In fact Android uses OpenJDK now. It also makes Oracle case looks phoney, suing Google for Java usage while having released freely available OpenJDK.
But that's not the point, I think implementing API/ABI/protocols/whatever should be allowed whether or not vendor wants it. There are many reimplementations of competitors APIs, and ruling in favor of Oracle would basically break that. Under that interpretation Wine would be in danger too, as significant part of Wine development is commercial (by CodeWeavers making their CrossOver product).
What about improving the API? E.g. some languages may be mostly but not 100% compatible with existing languages and provide more or less the same API but not be 100% the same - both the in the runtime library (API) and the language itself.
For example Free Pascal is mostly compatible with Delphi but not the same and its runtime library is mostly the same as Delphi but also not the same.
Supreme court judges just do not have the conceptual framework to properly adjudicate this. I don't think it's going to be possible to teach them the difference between interface and implementation within the parameters of these arguments. And beyond that the conservative majority is predisposed to treat everything as property. This is not going to end well.