back to article Java-aaaargh! Google faces $9bn copyright bill after Oracle scores 'fair use' court appeal win

The US Court of Appeals for the Federal Circuit in Washington DC has revived Oracle's bid to bill Google for billions over its use of copyrighted Java APIs in its Android mobile operating system. On Tuesday, the appeals court reversed a 2016 jury finding of fair use that deemed Google's actions acceptable, and sent the case …

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  1. Anonymous Coward
    Anonymous Coward

    What next, copyrighted DNA and medicines ?

    Fucking ridiculous.

    1. Anonymous Coward
      Anonymous Coward

      The CAFC is fscking insane. This decision is giving me a migraine just trying to figure out what the implications for software, system, and hardware engineering. What's transformative, or no, is another can of worms. What I do know is that my previous work is "technically" not infringing as I engineered my code from basic principles of the disciplines involved. No cut and paste there. On the other hand, proving it would be a problem.

      Umm..., has anyone given thought on how this plays out on Stack Overload let alone GitHub and every other coding, especially sharing code? Thought not. Frag.

      1. Anonymous Coward
        Anonymous Coward

        First off, IANAL. I did a walkabout at other sites to gain some clarity on this. If you have an API with a defined interface, it doesn't matter one whit that the underlying implementation differs from the copyrighted API's descriptions. Clean room implementation doesn't mean squat in legal terms. Since copyright is simply assumed on creation of the IP, we have a serious problem. Frankly, were IBM to be vindictive, everyone that was involved in the whole IBM PC clone process way back in the 1980's is a valid target.

        What is not immediately clear is exactly how much correspondence there has to be in the header files between two different implemenations. What if I keep the function name, number of parameters the same between implementations but alter the variables names passed. That's a good Fair Use question right there. {Shrug?}

        On further review, anyone using my API's from when I was serving in the military has a problem as I was instructed to assert copyright. [Something that was changed after I was out on disability.] I'm not the least bit interested in a lawsuit asking for damages. I wonder how many others feel this way?

        1. tom dial Silver badge

          IAANAL. However, it is my recollection from the late and much lamented Groklaw that changing the names, in a software copyright case is immaterial; that a sufficiently close "structure, sequence, and organization" match of the code samples determine infringement. It is not clear whether sorting the API entry points in the include file would get you any further from infringement.

          This cannot be anything but very bad if it is allowed to stand.

      2. Voland's right hand Silver badge

        The CAFC is fscking insane. This decision is giving me a migraine just trying to figure out what the implications for software, system, and hardware engineering.

        I can tell you what is the decision outright - it is more lawyers.

        We now have officially a precedent where a qualitative opinion by a lawyer is required in any case related to copyright infringement on software. This is as subjective as subjective gets, as idiotic as only the USA judicial system can produce it and to top it all it makes any software legal issues strictly a matter of "the best judicial system money can buy".

        Frankly, if you are writing software and working to an API - I suggest you move to the other side of the pond and NOT to the UK as it will probably be made an IPR vassal state of the USA as soon as 2020.

    2. Anonymous Coward
      Anonymous Coward

      "What next, copyrighted DNA"

      I think I hold a copyright on my DNA, or maybe my parents...

      1. Doctor Syntax Silver badge

        Re: "What next, copyrighted DNA"

        "I think I hold a copyright on my DNA, or maybe my parents."

        Your parents may wish to sue. Did they grant you a licence?

        1. onefang

          Re: "What next, copyrighted DNA"

          "Your parents may wish to sue. Did they grant you a licence?"

          Well my mother must have granted me a licence to replicate my DNA while in vitro, she seemed rather keen to help with that entire process. Not like I could do anything if she chose to not grant me that licence at the time. From what my parents told me, they where both very keen. In the 57 years since, neither parent has tried to revoke that licence, and one of them is still alive. She knows where to find me if she changes her mind.

          If Micky Mouse keeps extending the length of copyright, all three of us will likely be long gone before the copyright expires. Once mum dies I'm not sure if the copyright passes to me, or either of my siblings, unless specifically written into her will. If by law it's a three way split, I'm sure we'll negotiate a settlement where we each have full rights to our own DNA. We are reasonable like that, unlike Oracle.

      2. Anonymous Coward
        Anonymous Coward

        Re: "What next, copyrighted DNA"

        >I think I hold a copyright on my DNA, or maybe my parents...

        Twin brother, I'll see you in court for copyright infringement as I came out first.

        He's a straight facsimile M'Lud, a right royal rip off and I demand damages.

        1. TRT Silver badge

          Re: "What next, copyrighted DNA?"

          No can do... grandfather rights.

      3. Anonymous Coward
        Anonymous Coward

        Re: "What next, copyrighted DNA"

        "I think I hold a copyright on my DNA, or maybe my parents..."

        Don't make any assumptions ....... If you don't have it in writing then it does not exist !!!

        Behind your back maybe Google or Facebook own it !!!

        One can never be sure the way the world is going !!! :) :)

        I would start filling out the form now ...... remember your coffers are not likely to be as deep as 'The Googleplex" and their 'Friends' :) :)

        Best of Luck,

        (SoylentG-74868774863-837637-7428487BEEF-UK) aka S. Roth.

        1. Anonymous Coward
          Anonymous Coward

          "If you don't have it in writing then it does not exist !!!"

          No, copyright actually doesn't require a written statement or registration.

          1. Anonymous Coward
            Anonymous Coward

            Re: "If you don't have it in writing then it does not exist !!!"

            "No, copyright actually doesn't require a written statement or registration."

            It does not strictly require it as copyright is applicable on creation of the 'new' work BUT there are registration services such as UKCS that you can register your copyright with for 'further' protection. See https://www.copyrightservice.co.uk/services

            As proving who has copyright can often be 'difficult' such registration is useful to prove via an independant organisation that you have copyright and applied first for registration of such copyright.

            Such deconstruction does somewhat ruin the 'joke' but with the like of 'The Googleplex' and others default copyright is minimal protection when US of A courts seem to be driven by how much money you have NOT whether the result is just !!! :)

        2. ADJ

          Re: "What next, copyrighted DNA"

          You joke but I believe if you do one of those stupid what's my DNA makeup packs the company in question holds some rights of the sample provided....

      4. Anonymous Coward
        Anonymous Coward

        Re: "What next, copyrighted DNA"

        I don't think you do own the copyright to your DNA. You haven't published it: these days you can register your 'publication' of the original work.

        Key consideration is to ensure that blood & other samples you give for healthcare reasons are accompanied by a form that you make *them* sign that they cannot use your samples for any form of Intellectual Property assertion or claim.

        1. Anonymous Coward
          Anonymous Coward

          Re: they cannot use your samples for any form of Intellectual Property

          Henrietta Lacks

          https://en.wikipedia.org/wiki/Henrietta_Lacks

    3. Anonymous Coward
      Anonymous Coward

      In summary:

      OK for oracle to keep appealing until eventually they get lucky and find a Google hating judge.

      not OK for second referendum, the people have spoken..

      1. Anonymous Coward
        Anonymous Coward

        "not OK for second referendum, the people have spoken"

        actually, given the behaviour of the Vote Leave alleged in Parliament yesterday, the original advisory referendum ought now be ruled null and void *

        * = unless such Putinesque behavior is now the Legal standard for the conduct of UK ballots.

      2. P. Lee

        >OK for oracle to keep appealing until eventually they get lucky and find a Google hating judge.

        >not OK for second referendum, the people have spoken..

        The idea of appealing up a court decision is that you reach a more competent court.

        Are you suggesting there is a group more morally or technically qualified than "the electorate" to make the Brexit decision? Perhaps an elite who think just like you? Are you are thinking of forming "The Central Committee"? We can't really have the electorate making such important decisions can we?

        1. TVU Silver badge

          "The idea of appealing up a court decision is that you reach a more competent court"

          In this instance, I hope that Google does take this case right up to the Supreme Court if necessary given the adverse ramifications for developers if this most recent ruling is allowed to stand.

          These days, Oracle is pretty much the template for Evilcorp given that it's trying to use litigation to extract money a la patent trolls instead of innovating and because it's so anti open source.

      3. Michael Habel

        In summary:

        OK for oracle to keep appealing until eventually they get lucky and find a Google hating judge.

        not OK for second referendum, the people have spoken..

        Pray tell us what these things should have in common.... As I for One am failing to connect the Dots.

        And as to the People "Speaking", I thought an albeitly very small majority already thankfully have.

    4. Anonymous Coward
      Anonymous Coward

      You kind of already have a case of patenting DNA...

      Refer to Monsanto.

      1. Anonymous Coward
        Anonymous Coward

        Re: You kind of already have a case of patenting DNA...

        Refer to Monsanto.

        Or to whoever it was (an American company I think) that tried to patent the genome for Basmati rice (a crop grown in India for thousands of years). Fortunately that attempt failed so far as I remember.

      2. Anonymous Coward
        Anonymous Coward

        Re: You kind of already have a case of patenting DNA...

        A patent is different from copyright - never mix them, different requirements and different effects.

      3. Anonymous Coward
        Anonymous Coward

        Re: You kind of already have a case of patenting DNA...

        >Refer to Monsanto.

        There's a huge difference between patent and copyright, one is 20 years the other is death plus 70, I wonder why corporations are pushing for the expansion of copyright into the patent field ?

        It was our 18 year old lab assistant that copyrighted it and we are going to make sure he lives until 95 even if they snuff it before then, wink.

        1. Omgwtfbbqtime

          Re: You kind of already have a case of patenting DNA...

          That's fine.

          However if the copyright is held the company as a legal entity, it owns the copyright and is immortal - unless it fails and is wound up. hence (c) Sony/Disney etc.

          1. Anonymous Coward
            Anonymous Coward

            Re: You kind of already have a case of patenting DNA...

            "hence (c) Sony/Disney etc."

            ... though from something a read years ago i think this may not be a valid copyright claim as the copyright symbol is a c in a circle and not "(c)" - and I seem to recall someone managed to argue that using "(c)" without the word copyright meant it was an invalid claim of copyright and the fact that an attempt had been made to expliclitly claim copyright meant the implicit Berne convention copyright didn't hold either.

      4. I Am Spartacus

        Re: You kind of already have a case of patenting DNA...

        If I patent my DNA and take out a copyright of my DNA, can I claim copyright infringement of the Old Bill tries to ask me for a DNA swab?

  2. Oh Homer
    Paris Hilton

    Still reeling

    Personally I'm still trying to get over the fact that an API can apparently be copyrighted.

    So the means of interoperating with something, which was specifically and exclusively designed for the purpose of interoperation, is now apparently restricted by law to prohibit interoperation?

    More "IP" lunacy.

    1. This post has been deleted by its author

    2. Anonymous Coward
      Anonymous Coward

      Re: Still reeling

      >Personally I'm still trying to get over the fact that an API can apparently be copyrighted.

      The EU has some sanity by explicitly saying it cannot be copyrighted:

      https://arstechnica.com/tech-policy/2012/05/eus-top-court-apis-cant-be-copyrighted-would-monopolise-ideas/

      Sorry Reg, couldn't find a Reg link story.

      1. alain williams Silver badge

        Re: Still reeling

        The EU has some sanity by explicitly saying it cannot be copyrighted:

        https://arstechnica.com/tech-policy/2012/05/eus-top-court-apis-cant-be-copyrighted-would-monopolise-ideas/

        Ooooh - another area of EU/USA courts disagreeing, time to order more popcorn!

        I hope that the EU view prevails.

    3. Anonymous Coward
      Anonymous Coward

      "restricted by law to prohibit interoperation?"

      Never heard of "licenses"?

    4. Blank Reg

      Re: Still reeling

      It doesn't mean that at all, it just means that you can't go copying someone's API. as Google did in this case.

      You can still write code to make use of someone else's API, but whether or not you can go and re-implement their API depends on the API copyright holder and their terms of use, as it should be.

      Google knew all along that this was the likely outcome, they were warned internally by staff that they should just come to a licensing agreement in order to use Java. But Google didn't get where they are by paying anyone when they could just rip them off instead.

      1. Dan 55 Silver badge
        Facepalm

        Re: Still reeling

        AT&T (C) can sue Stroustup (C++) because C++ has printf. Who can sue Oracle (Java) because Java has printf. Who can sue Walter Bright (D) as D has printf too.

        Now that van Rossum (Python) thought he could rename it to str.format() and get away with it, as did Mozilla (Rust) with println, but the thing is they both of them were foolish enough to admit it's based on C's printf in their documentation, so they can get a sueball for their trouble too.

        AT&T can't sue itself because C copied B, but I bet Martin Richards (BCPL) is laughing all the way to the bank, as he can sue them all.

        Now if you'll excuse me I'm going to look at how CPL did it, maybe there's money to be made there too.

        Repeat ad infinitum.

        You can still write code to make use of someone else's API, but whether or not you can go and re-implement their API depends on the API copyright holder and their terms of use, as it should be.

        Sorry, did you just post something as ridiculous as I did above?

        1. Anonymous Coward
          Coat

          Re: Still reeling

          Except BS was working at AT&T when he invented C++, so they'd have to sue themselves.

        2. Anonymous Coward
          Anonymous Coward

          "AT&T (C) can sue Stroustup (C++) because C++ has printf."

          Why should AT&T should sue one of its employee working for the company benefit? AFAIK C++ was developed at AT&T Bell Labs.

          Anyway, *can* sue doesn't mean you have to - you may not be interested in protecting your copyright - and copying a single function name may not be enough to invoke copyright protection (as you can't use a single word or even sentence in a novel or song), but copying each and every function and parameters in each library is a different thing.

          1. Dan 55 Silver badge

            Re: "AT&T (C) can sue Stroustup (C++) because C++ has printf."

            Why should AT&T should sue one of its employee working for the company benefit? AFAIK C++ was developed at AT&T Bell Labs.

            Because he's left and he's got their proprietary super special secret-sauce API thus denying AT&T of billions.

            Or maybe it wasn't just the API and had something to do with the fact that Sun/Oracle couldn't really make a useful mobile platform from Java ME. All those man hours to make a language which barely managed to faithfully reproduce Tetris.

      2. Flocke Kroes Silver badge

        Re: Google knew all along that this was the likely outcome

        Actually no. At the time everyone knew that Oracle were desperately trying to stretch and bend the law so they have some excuse for a case against Google's money. When they came up with "you cannot write your own code to be compatible with a published API" the only reason programmers were not shocked is because they expect this kind of rubbish from Oracle's lawyers.

        Oracle did not create Java. Is was made by Sun. During Sun's death throws they tried to jump on the open source bandwagon. They released stuff under their own license (CDDL) that allowed anyone to contribute for free but no-one but Sun to profit. For some reason there were not swarms of developers rushing to work for Sun for free. Later Sun released Java under the GPL, so everyone and his penguin (including Google) had an explicit license from the copyright holder.

        Oracle then bought Sun and hired David Boies so they could sue Google. (Yes that David Boies, the lawyer SCO hired to get $600 per Linux seat license fees for code that SCO were distributing under the GPL and nobody used.)

        1. Anonymous Coward
          Anonymous Coward

          And the sad thing is...

          ... if Google had chosen *not* to base Android on Java, then Java would be completely dead in the mobile space by now, relegated to dusty back-end server applications.

          As it is, Google have handed Oracle a whole new generation of Java programmers on a plate. And what thanks do they get? Oracle sues the crap out of them.

        2. Anonymous Coward
          Anonymous Coward

          "Later Sun released Java under the GPL"

          Wrong. Sun releases only a part of Java under GPLv2, what is now in the OpenJDK - but there are still parts of Java which aren't GPL.

          And I would like to see what FSF would do is someone makes a phone OS that copies everything from Linux but it's not Linux....

          1. fandom

            Re: "Later Sun released Java under the GPL"

            "And I would like to see what FSF would do is someone makes a phone OS that copies everything from Linux but it's not Linux...."

            Nothing, as the FSF have nothing whatsover to do with Linux.

            Not that your example makes any sense anyway, since Linux is Unix inspired.

        3. Blank Reg

          Re: Google knew all along that this was the likely outcome

          @Flocke Kroes

          No, the internal warnings came when they were deciding to base Android on Java, long before Oracle bought Sun, and long before the lawsuit.

          Java SE was open sourced, but with a field of use restriction, it was not to be used in mobile platforms. That's where it all falls down, they copied the API outside of the allowed field of use.

      3. Ken Hagan Gold badge

        Re: Still reeling

        "You can still write code to make use of someone else's API, but whether or not you can go and re-implement their API depends on the API copyright holder and their terms of use, as it should be."

        Ah, but which side is the implementation? If it is a device driver interface, the OS is the caller and the third parties are the callees. Google could argue that they simply produced a new "client" of all that existing "application software". In fact, in the context of producing an alternative implementation, this is a perfectly reasonable argument and has precedents with several other groups that have produced similar "clients" over the years. Likewise, internet RFCs are (at least traditionally) not accepted unless they have multiple implementations.

        End-users (including the average lawyer or judge) may think it is obvious that APIs are one sided and it is obvious which side is which. That's because they only ever see it from one side. However, to a software developer, APIs are two-sided. If you only have one implementation then you don't have an API, you just have a stamp collection.

    5. Kevin McMurtrie Silver badge

      Re: Still reeling

      Big APIs are hard! Take at Apache open source projects, PHP, or any of the hipster languages du-jour. You get inconsistent naming, inconsistent parameters, data structures that don't pass from component to component without translation, and language syntax hacks that make future changes impossible. Java isn't perfect but the effort shows.

      It seems reasonable to protect a good API with IP laws but the amount of money involved here seems offensive to the Sun engineers and armies of outside developers and researchers that contributed too.

      1. Charlie Clark Silver badge

        Re: Still reeling

        It seems reasonable to protect a good API

        Which is why the majority of software specifications are open and royalty free? If you want interoperabiity then you don't build barriers.

        I suspect one consequence of this ruling, no matter how much damages are awarded, will be to encourage Google to get rid of Dalvik. It's been working its way toward this for the last couple of years.

        1. Anonymous Coward
          Anonymous Coward

          Re: Still reeling

          > Which is why the majority of software specifications are open

          > and royalty free? If you want interoperabiity then you don't build barriers.

          But it should still be your choice. (Think licensing)

          > I suspect one consequence of this ruling, no matter how much

          > damages are awarded, will be to encourage Google to get rid

          > of Dalvik. It's been working its way toward this for the last couple of years.

          Dalvik went years ago. They now use ART. They are DEX compilers, and are not relevant to this discussion.

          A.

    6. Trollslayer

      Re: Still reeling

      It could be considered 'passing off' so there is an argument.

    7. Halfmad

      Re: Still reeling

      The people ruling on this simply don't understand the implications of it and the reasons that it shouldn't be copyrighted.

    8. TVU Silver badge

      Re: Still reeling

      "More "IP" lunacy"

      I fully agree which is why Google should challenge this perverse ruling all the way to the Supreme Court if necessary and they are wealthy enough to be able to do that.

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