MESSAGE
| DATE | 2017-05-13 |
| FROM | Ruben Safir
|
| SUBJECT | Re: [Hangout of NYLXS] Fair USe
|
http://www.zdnet.com/article/oracle-vs-google-round-2-trial-begins-over-java-api-copyright-claim/
Oracle vs. Google, Round 2: Trial begins over Java API copyright claim
The Java APIs that Google used to develop Android were protected by
copyright law, a court has ruled -- now Google has defend its moves as
"fair use" or potentially pay Oracle billions.
Stephanie Condon
By Stephanie Condon for Between the Lines | May 9, 2016 -- 05:00 GMT
(22:00 PDT) | Topic: Mobile OS
Get ready for another courtroom showdown between Oracle and Google over
Java.
The heavyweight legal match-up between Oracle and Google has already had
some dramatic results: In 2014, a U.S. Court of Appeals ruled that
copyright law applies to APIs -- specifically, the 37 Java API packages
Google used to develop the Android mobile operating system.
That ruling holds serious implications for Android -- which now commands
around 80 percent of the smartphone market -- as well as for developers,
and for the software industry at large. Just how much will that 2014
ruling impact the future of software development? That depends in part
on Round 2 of the legal battle, which begins Monday.
Oracle and Google return to San Francisco's U.S. District Court on
Monday to determine whether Google's use of those copyrighted API
packages amounted to "fair use." If not, the court will have to assess
the damages. If all goes Oracle's way, Google could owe the software
giant a whopping sum, to the tune of $9 billion, that far surpassing any
other copyright verdict.
The outcome could influence not only the next versions of Android but
also the way developers, from major companies and startups alike,
approach interoperable software.
Oracle v. Google: The backstory
A decade ago, Android developers built their OS with the help of Java
APIs, which were developed by Sun Microsystems in the 1990s. When Google
decided to base Android on Java, it began licensing negotiations with
Sun but ultimately abandoned them. After Oracle acquired Sun in 2010, it
sued Google for using the APIs without paying licensing fees. Google
argued they were free to use because the Java programming language is
open source, and the APIs are required to use the language.
In 2012, Judge William Alsup ruled that the APIs were not copyrightable,
but Oracle appealed the decision. That's when the U.S. Federal Circuit
Court of Appeals reversed the ruling. Google appealed to the Supreme
Court, but last year they declined to hear the case. That left the
appeals court decision in place, meaning the question now is not whether
Google used copyrighted material without paying for it -- they did,
according to the appeals court -- but whether they should have paid
licensing fees for it.
A question of fair use
Judge Alsup is once again presiding over the case and explained to the
jury the concept of fair use this way: "The policy behind the right of
fair use is to encourage and allow the development of new ideas that
build on earlier ones, thus providing a counterbalance to the copyright
policy to protect creative works."
Fair use is often applied to material used for scholarly purposes, or
for news reporting and commentary. In this case, the jury has to
consider a handful of factors, such as whether and to what extent the
use of of the copyrighted material was used for commercial gain, and
whether its use was "transformative."
"What does transformative mean?" Alsup wrote to the jury. "A use is
transformative if it adds something new, with a further purpose or
different character, altering the first use with new expression,
meaning, or message rather than merely superseding the objects of the
original creation."
The more transformative a work is, the less the other factors like
commercialism matter. This will be a key factor in the trial.
A critical part of Google's case relies on the argument that by
incorporating the code in question into a smartphone operating system,
it added new meaning to the copied portions of the original work -- a
feat that Oracle had failed to accomplish on its own. Oracle argues that
the development of Android didn't change the nature of the APIs.
Furthermore, Oracle argues that Google's use of Java APIs not only gave
it a leg up in the smartphone market but also gave it an opportunity to
do market harm to Oracle. In the 2000s, Java was in 80 percent of mobile
phones, but Android seized its grip on the market by paying equipment
manufacturers to use its OS.
Oracle says Google owes billions
That's where Oracle makes the case for the huge sum in damages it's
seeking. It argues that Google owes it for lost third-party licensing
revenues, as well as for revenues lost by preventing Oracle from
launching its own mobile platform. The damages also take into account
the profits Google has made from using the Java APIs.
read this
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If the case goes Oracle's way, the damages could exceed the $1.3 billion
that a jury awarded Oracle in its case against SAP in 2010 -- the
largest copyright verdict ever.
Forking over around $9 billion wouldn't cripple Google, which pulls in
more than twice that amount in revenues in a quarter. Still, those
taking Google's side in the case argue that this kind of copyright
verdict could send shock waves through the industry.
"The possibility of a financial death sentence like that in a copyright
case keeps most startups and smaller businesses from even trying to rely
on fair use," said Mitch Stoltz, senior staff attorney for the
Electronic Frontier Foundation.
In the meantime, it's unclear how much impact the ongoing case has had
on software development. The Cisco v. Arista lawsuit, which was filed
after the Federal Circuit's decision in Oracle v. Google, includes a
claim of copyright infringement that resembles Oracle's. IDC analyst Al
Hilwa noted that more technology is being put into more permissive open
source licenses. However, he added, "It is hard to tell if this is at
all related to any uncertainty around APIs."
--
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