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Old 23rd May 2014
thirdm thirdm is offline
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Join Date: May 2009
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Well, another thing they say in the show is to be careful about generalizing any result from this case to other cases. It doesn't necessarily set a strong precedent for later cases with slightly differing details (or different courts?) even if the fair use argument doesn't go google's way. I don't understand this, not knowing much about how law works, but this quote from Alsop, "development of the law reveals a trajectory in which enthusiasm for protection of "structure, sequence and organization" peaked in the 1980s," makes me think it wouldn't be an on/off sort of thing where Google's loss leads to Novell (if they even wanted to) suing everyone doing unix and wine and reactos have to retract their work. Precedent seems not to be such a solid predictable thing here. There's something about it being only one jurisdiction of many too and with the copyright act giving individual courts a lot of discretion to decide each case on its merits. Sort of like, "we legislators don't really get this software thing so you're going to have to figure it out over time, courts."

If they get a fair use argument, I'd think that should make people feel comfortable enough, especially given that API declaration copying hasn't even been considered worth trying to pursue in copyright cases before. As far as size, well nothing much is as big as Java, so if that's covered anything I actually like ought to be pretty safe. And then the circuit court seemed more to be interested on the interoperability thing whether prior java programs existed that might run on Android or not. Given what I skimmed I'd be surprised if arguments resembled fair use arguments as applied to quoting newspaper articles. The cases they considered were all heavily technological, except that accounting method one, but that seemed more for historical context. I certainly wouldn't thinks there's worry about a software case setting precedents for print. There's been lots of cases about print over the centuries. They don't need guidance from software cases to help there. Probably the judges would leave software cases on the shelf as much as possible given how much annoying technical detail, detail they clearly struggle to grasp, is involved.

It would be funny to see the court weighing different APIs based on their size and how much "three dimensional structure with all the chutes and ladders" they have. So imagine Unix's API is not copyrightable cause it's a flat namespace (one dimensional) and relatively small, but java's is cause it's large and hierarchical. Or maybe they'd have a tighter standard and only Scheme R4RS would be fair game and everyone's screwed except Nils Holm (Scheme 9 from Empty Space).

It seems stupid to me to have APIs copyrightable (at least if copyrights are going to be more than 10 years), but it might be kind of interesting (may you live in interesting times) if free software had to adapt to that. Like Karen says, they'd just have to use their own designs instead. Or maybe they could copy people less likely to sue. e.g. who has the copyright on smalltalk and common lisp? In a way it might be kind of cool to have Java and Unix banned for use by free software. Assuming people could find the motivation once we have nothing again, maybe we could get something a little different this time.

But it's pretty early to worry about that. Let's see where this goes first and if anyone else decides to try to sue from a similar place.

The most jarring idea in your first post was that APIs being copyrightable weakens the GPL. I can't even begin to see the logic there. If anything, as Bradley I think is getting at with his mixed feelings comment, it makes the GPL that much more enforceable. e.g. GNU could sue to have mg GPLed since it replicates the "structure, sequence, and organization" of emacs's command set despite its implementation being independent (not that they ever would do that).
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