[License-discuss] Copyright on APIs

[Pamela Chestek]

On 7/8/19 4:42 AM, Henrik Ingo wrote:
> On Sun, Jul 7, 2019 at 5:36 PM Pamela Chestek <pamela at chesteklegal.com
> <mailto:pamela at chesteklegal.com>> wrote:
>
>
>     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.
>
>
> This is quoting Oracle, right?
No, it was quoting the appeals court. In my world, what the court says
is true is true, whether it's true or not. It becomes "the law of the
case" and the parties are stuck with it. This is also from the earlier
appeals court opinion (italics mine):

Google maintains on appeal that its use of the “Java class and method
names and declarations was ‘the only and essential means' of achieving a
degree of interoperability with existing programs written in the [Java
language].” Appellee Br. 49. Indeed, */given the record evidence that
Google designed Android so that it would not be compatible with the Java
platform, or the JVM specifically/*, we find Google's interoperability
argument confusing. While Google repeatedly cites to the district
court's finding that Google had to copy the packages so that an app
written in Java could run on Android, /*it cites to no evidence in the
record that any such app exists and points to no Java apps that either
pre-dated or post-dated Android that could run on the Android
platform*/.^15 /*The compatibility Google sought to foster was not with
Oracle's Java platform or with the JVM central to that platform.
Instead, Google wanted to capitalize on the fact that software
developers were already trained and experienced in using the Java API
packages at issue*//*. */The district court agreed, finding that, as to
the 37 Java API packages, “Google believed Java application programmers
would want to find the same 37 sets of functionalities in the new
Android system callable by the same names as used in Java.”
Copyrightability Decision, 872 F.Supp.2d at 978. Google's interest was
in accelerating its development process by “leverag[ing] Java for its
existing base of developers.” J.A.2033, *1372 2092.

^15 During oral argument, Google's counsel stated that “a program
written in the Java language can run on Android if it's only using
packages within the 37. So if I'm a developer and I have written a
program, I've written it in Java, I can stick an Android header on it
and it will run in Android because it is using the identical names of
the classes, methods, and packages.” Oral Argument at 31:31. Counsel did
not identify any programs that use only the 37 API packages at issue,
however, and did not attest that any such program would be useful. Nor
did Google cite to any record evidence to support this claim.

/Oracle Am., Inc. v. Google Inc./, 750 F.3d 1339
<https://www.courtlistener.com/opinion/2673149/oracle-america-inc-v-google-inc/>,
1371–72 (Fed. Cir. 2014).

>
> I don't know why Google would not have focused on this argument in
> their appeal, however I don't see that the kind of threshold painted
> by Oracle is in any way meaningful to the real world. By the same
> logic one could argue that J2ME, J2SE and J2EE are not compatible with
> each other. Which is true, but also silly.
>
> It's a fact that I can copy some Java code to Android, and all the
> strings and integers continue to work. This is interoperability. 100%
> interoperability is very rare anyway. For example, it's unlikely that
> you could just swap one relational database for another, even if both
> implement the same SQL standard. So it would be unhelpful for a court
> to set the bar for interoperability higher than what is the norm and
> expectation for real world use cases.
The legal standard is not a technical standard, it's whether the reused
content is furthering goals that copyright law accepts as justification
for copying. You see in the quote that the court noted the fact that
there were no apps that ran on both platforms, so no actual
interoperability. Two walled gardens.
>  
>
>>     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.
>
>
> Aren't these separate questions:
> 1) An API (or in any case the Java standard library API) is purely
> functional so cannot be copyrighted, vs
> 2) an API can be copyrighted but for interoperability purposes fair
> use exceptions may apply on a case by case basis. I thought the appeal
> is still about #1 and only if Oracle wins will the litigation about #2
> start?

The lower court and appeals court have decided both (1) and (2) but we
don't know yet what the Supreme Court might agree to review. Google
already asked the Supreme Court to review the copyrightability question
once several years ago and the Supreme Court decided not to review it.
Google now has sought Supreme Court review again after the fair use
decision. Oracle is responding that copyrightability has been finally
decided and the Supreme Court can't review it this time, just fair use.
The Supreme Court hasn't decided yet whether it will take the case at
all, and if it does, whether it will review only fair use or also
copyrightability.

Pam

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