[License-discuss] Copyright on APIs

Sun Jul 7 16:08:02 UTC 2019

Hi Pam,

Pam Chestek wrote this on 6/30/2019:

> The [Oracle v. Google] case is about whether it was lawful to copy portions of software to enhance the ease of development of software for an entirely different software ecosystem.

What is the relevance (or indeed, what is the definition) of "entirely different software ecosystem"? I don't remember that being an issue when I was in computer science graduate school. If this case devolves into that distinction, then developers of software would want not to cross that line when they write new software.

Pam quoted this on 7/7/2019 from Oracle Am., Inc. v. Google LLC, 886 F.3d 1179, 1206 (Fed. Cir. 2018):

> "And Google does not rely on any interoperability arguments in this appeal."

Then what is the relevance of "fair use"? Use for what purpose? I am curious about Google's otherwise hidden motivations in its actions.

In any event, the subject of this email thread is "Copyright on APIs". Are you saying that the Oracle v. Google case is not about APIs?

/Larry

From: License-discuss <license-discuss-bounces at lists.opensource.org> On Behalf Of Pamela Chestek
Sent: Sunday, July 7, 2019 7:29 AM
To: license-discuss at lists.opensource.org
Subject: Re: [License-discuss] Copyright on APIs

On 7/7/2019 4:23 AM, Henrik Ingo wrote:

While I haven't closely followed the details of Oracle vs Google, purely from a layman and business standpoint it seems clear that Google did create Android / Dalvik exactly to be interoperable with Java. This means one can run the same Java source code on either platform and the java.* namespace offers the same packages and functionality. 

I believe this is an important distinction that is often missed. No, Android is not compatible with Java and was not meant to be. "As we noted in the prior appeal, however, Google did not seek to foster any 'inter-system consistency' between its platform and Oracle's Java platform. Oracle, 750 F.3d at 1371. And Google does not rely on any interoperability arguments in this appeal." Oracle Am., Inc. v. Google LLC, 886 F.3d 1179, 1206 (Fed. Cir. 2018). If the Supreme Court doesn't go beyond its remit in Google v. Oracle, the earlier cases holding that this type of use is a fair use will still be good law. 

But importantly, interoperability also goes the other way: Android was compatible with the millions of developers familiar with Java syntax and standard libraries.

This is Google's argument why it is a fair use. It is what the Supreme Court's decision is likely to decide, although the Court may go beyond that. The main decision on this type of compatibility, Lotus Dev. Corp. v. Borland Int'l, Inc., 49 F.3d 807 (1st Cir. 1995), held that the Lotus 1-2-3 menu hierarchy was an uncopyrightable method of operation. The Supreme Court heard the case but was equally divided, with the result that the appeals court's decision was affirmed.

If I remember correctly, Oracle did find early on one function implementation that had indeed been copy pasted from OpenJDK to Android. But this was so minor (and obvious) it is not part of the issues decided in higher courts.

Yes, there was minor copying but it's dropped out of the case.

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
919-800-8033
pamela at chesteklegal.com <mailto:pamela at chesteklegal.com> 
www.chesteklegal.com <http://www.chesteklegal.com> 

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