Posts tagged Copyright
In a landmark decision, the Supreme Court issued a 6-3 ruling against Aereo, a video startup founded in 2012 that streams both live and delayed television broadcasts to paying subscribers.
In 2013, ABC and a coalition of other broadcast companies filed against Aereo with the Supreme Court (American Broadcasting Companies, Inc. v. Aereo), claiming that the Aereo’s business model violated copyright by disseminating content without permission.
Aereo subscribers pay a fee starting at $8 per month to both watch and record television, the latter employing Aereo’s “Cloud DVR” technology. Aereo’s argued that it functions more as an equipment provider than a content or cable provider, though the court ruled against that line of reasoning. Aereo’s CEO and Founder Chet Kanojia responded to the ruling on the company’s blog:
Today’s decision by the United States Supreme Court is a massive setback for the American consumer. We’ve said all along that we worked diligently to create a technology that complies with the law, but today’s decision clearly states that how the technology works does not matter.
This sends a chilling message to the technology industry. It is troubling that the Court states in its decision that, “to the extent commercial actors or other interested entities may be concerned with the relationship between the development and use of such technologies and the Copyright Act, they are of course free to seek action from Congress.” (Majority, page 17) That begs the question: Are we moving towards a permission-based system for technology innovation?
The ruling indeed seems to set a precedent for streaming technologies that charge users for content that they do not pay to license from the copyright holder. For many companies—including otherwise successful ones—paying out those fees to broadcast and recording conglomerates can prove crippling, even as they scale up.
While it’s understandable that any startup would want to avoid cutting that “deal” with TV executives by any means necessary, it’s not yet clear how the ruling will affect other companies that employ a similar business model. The ruling did note that its limited scope doesn’t intend to restrict future streaming innovations:
We agree that Congress, while intending the Transmit Clause to apply broadly to cable companies and their equivalents, did not intend to discourage or to control the emergence or use of different kinds of technologies. But we do not believe that our limited holding today will have that effect.
We’ll likely see soon enough how and if that bit of the ruling will play out in future cases pitting disruptive tech companies against copyright holders.
Lead image courtesy of Aereo
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European Commissioner for Justice Viviane Reding was quoted in a BBC interview saying that the Right to Be Forgotten (RTBF) will be relatively easy for Google to administer. She asserted that, compared to the millions of copyright removal requests Google deals with, the thousands of RTBF requests…
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Any artist that’s ever dealt with copyright will tell you one basic fact: Copyright is the most confusing, convoluted and capricious aspect of intellectual property rights ever created. You thought patents were bad? Delve into the world of copyright and just wait for your head to explode.
This is what makes the imbroglio between Oracle and Google over the use of copyright in Java such a hard case to understand. It could, however, set a dangerous legal precedent for software development for years to come.
The Musician: Licensing Vs. Fair Use
Let’s say I am a musician. I want to cover a song from one of my favorite artists. Technically, I don’t need to get the license of the song if I am just playing it at the local bar. But the venue I am playing at may need to pay a license fee to a rights holder organization to allow for the use of cover songs or DJs in its establishment.
Now, if I am going to release that cover song on my next album (which will be sold for profit), I need to get the rights from the rights holder, which may be a music studio or an individual artist. If I want to use that cover song in a movie, I need to get a different kind of license. One way or another, if I am making money with the cover song, I am going to have to pay somebody else for that privilege.
But what if I’m just using a part of a song—albeit word for word, note for note—in part of my song? Or what if I change the song just enough so that it’s not technically a cover but my own original representation inspired by the original performance? That could be considered “fair use,” a legal doctrine where short portion of original copyrighted works can be used verbatim in a fair and reasonable way that does not impair the value of the materials or take profit away from copyright owner.
Quick Thought: The Fast Lane & Reclassification
If you or your company wants faster Internet service, you may have to pay to be in the “fast lane” in the near future. That’s what the broadband and cellular carriers want to happen and would violate the concept of Net Neutrality that is the biggest issue facing Internet technology and innovation today.
According to The Wall Street Journal, Federal Communication Commission chairman Tom Wheeler wants to prohibit this concept of two Internets through regulation and policy currently being debated. The Commission is debating whether or not a “paid prioritization” model should be adopted in its latest proposal over Net Neutrality and nobody outside the broadband providers likes the idea, especially content-heavy companies like Netflix and Google.
If Wheeler ever really wants to make substantial and lasting policy, the FCC will eventually have to reclassify broadband as a public utility and take control over all regulation of Internet access. Reclassification would be Wheeler’s nuclear measure and the FCC could face lawsuits for years from the broadband companies to get it to stick. At some point, policy debate and compromise is just not a viable option and reclassification may be the only way to go.
The fair use vs. licensing rights battle has played out thousands of times between artists, especially when it comes to using the same work for different media like television, film, live performances, digital and physical storage. What is significant in the Oracle vs. Google copyright lawsuit is that this artistic nature of copyright is now being applied to computer code.
What makes the Oracle and Google fight so important is not (really) the specifics of what Google may or may not have copied in terms of Java APIs for use in Android. The danger is in applying copyright to a computer language and the far-reaching impact that could have on the software industry.
If you are unfamiliar with the specifics of the Oracle and Google case, the synopsis is pretty straightforward: Google wanted to use Java to build Android. Google did not believe it needed a license from Oracle to use Android if it changed the specifics of how the Java APIs were used. Google then went on to basically write its own version of Java APIs for Android. In doing so, Google uses a similar style and structure as the original Java, and in some cases, using similar categories, headers and objects within the code (this is the “structure, sequence and organization” that the court documents mention over and over again).
In the millions of lines of code that Google wrote for Android, about eight lines were direct copies from Oracle’s Java, while the look of the APIs was very similar but written differently.
As one ReadWrite commenter put it last week, “Google basically [thought] that Java sucked for its purposes so they copied the ‘table of contents’ and then rewrote the book themselves to be ‘better.’”
If we compare what Google did with Java for Android and the case of the musician above, where does the line fall between the need to license the original work and the fair use to create an original representation?
The original jury in the case could not answer that question. Judge William Alsup ruled in place of the jury that what Google did was fair use—a win for Google. But a federal appeals court just overturned Alsup’s ruling, saying APIs are copyrightable—that’s a win for Oracle.
Part of Oracle’s argument is that it’s protecting Java from fragmentation and interoperability issues for developers. This argument rings a little hollow when considering how Java has been forked several times over by companies and individual developers for their own purposes, and that there are already dozens of competing programming languages that share many of the same properties and principles with Java to achieve similar goals. Essentially, the world of computer programming languages has been fragmented for decades.
What Oracle is doing is attempting to create a legal precedent to protect its own corporate interests and sell more licenses and the support that goes with them. Third-party briefs filed in the case—from the likes of Microsoft and IBM—support Oracle’s stance because it preserves the business models of those particular companies as well.
But developers are not exactly enthused with the ruling. By protecting its own selfish interests, Oracle is opening a Pandora’s box that could have much wider impact than just its fight with Google.
“While the goal of avoiding fragmentation of Java that has been Oracle’s stated intent in pursuing this has some merit, we’re not comfortable with the idea that copyrighting APIs is the way to accomplish this,” said Apigee’s VP of product strategy Ed Anuff. “It’s likely going to have the opposite effect, causing the proliferation of convoluted APIs for no other reason than to avoid the potential of legal exposure. That’s a no win proposition for anyone involved.”
The fear within the software industry is that copyright will become the new favorite weapon of corporate lawyers everywhere. If patent troll lawsuits become an insufficient means to hurting competitors in court, companies may just turn to the copyright route to damage their competitors, opening up the potential for an explosion of lawsuits and injunctions.
What Happens To Android?
What Android developers want to know is, “How does this affect me?”
In the short term, it doesn’t.
The case has been remanded back to the original district court for now, but Google is likely to take it all the way to the United States Supreme Court. So while the case is still being adjudicated, Android is going to continue with business as usual. If the Supreme Court hears the case, it will be months at the very least, if not a year or more, before a decision comes that would affect Google, Android and developers.
Quote Of The Day: “I don’t trust them not to detain me, interrogate me and even arrest me. Their behaviour has been so extreme and offensive, and the political and media class was so supportive of it, that I feel uncomfortable with the entire atmosphere.” ~ Journalist Glenn Greewald on his reluctance to enter the United Kingdom after publishing Edward Snowden’s leaked documents on the NSA in 2013.
If Google loses and Android becomes prohibitively expensive (either because Google would have to license Java from Oracle or pay a large lump sum in damages), it would change the free and open source nature of the Android Open Source Project (AOSP). What Google would do then is anybody’s guess. Android is so big with so many installed phones that the general thought is that Google would somehow make it work.
In the meantime, Google could fundamentally change Android development, going with its own non-Java languages that have been in development such as Go, Dart and Rust. If Google goes down this road, it will make developers learn new languages that would further fragment the software development ecosystem and affect hundreds of thousands of developers and a million apps. Google would love to make Go the premier language to replace the likes of Java and C++, but it will face opposition on that front from a variety of sectors.
Google already employs a non-Java compiler in open source Dalvik for Android that compiles Java into bytecode (machine code) to run on a device. Dalvik replaces the need for a Java Virtual Machine complier in Android and Oracle is none too happy about that. Dalvik will soon be replaced with its next version built by Google, Android Runtime. Just like the compiler, Google could pragmatically move pieces of Android off of Java and wipe its hands of Oracle all together. That is not an easy, or fast, process.
Oracle’s best interest is to create a continuing revenue stream from Google over Android, so killing off Android itself is not (or should not) be its primary goal. The threat to Android is more existential than tangible at this point with the larger issue here the use of copyright in software development.
More on Oracle, Google & Copyright
- Vox employs its powers of explanation on the court case, with Timothy B. Lee offering the headline, “The court that created the patent troll mess is screwing up copyright too.”
- Corynne McSherry of the Electronic Frontier Foundation weighs in on the appeal. McSherry says, “the implications of this decision are significant, and dangerous.“
- Wired reporter Robert McMillan writes that Oracle’s win is bad for everybody.
- When we contacted Google for comment on the appeal, Google’s global communications and public affairs manager for patents Matt Kallman suggested we read this article from two guest authors at TechCrunch published last year.
- Russell Brandom from The Verge says the appeal sets a dangerous precedent.
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The federal appeals court that handles U.S. intellectual property cases ruled that APIs can be copyrighted, a finding that may have significant consequences for cloud computing, software interoperability and innovation in general.
See also: What APIs Are And Why They Matter
The decision came as part of a ruling in Oracle’s favor in its appeal against Google over the use of Java APIs in Android. The U.S. Court of Appeals for the Federal Circuit today overturned an earlier ruling in the Oracle-Google fight over whether or not software application programming interfaces, or APIs, are subject to copyright. (See the full text of the court ruling below.)
Judge William Alsup ruled in Google’s favor in 2012, stating that APIs were purely functional, and thus not creative works deserving of copyright protection. The jury had previously deadlocked on whether Google’s use of the Java APIs was covered by the “fair use” exception to copyright law, a critical question in the case that was mooted by the judge’s ruling on copyrightability.
Oracle originally sued Google for patent infringement and copyright violation for using the Java programming language in its Android mobile operating system. The jury in the case found no patent infringement, but said that Google had copied the Java code from 37 APIs as well as nine lines of code from a specific routine in the operating system called “rangeCheck.”
Google counterargued that computer code, like concepts in written language, were subject to fair use in terms of the specific structure, sequence and organization of that code.
Fair use is a legal exemption from copyright restriction that basically allows for limited copying of copyrighted material under certain circumstances, such as criticism, news reporting, teaching, and research. Generally, the concept of fair use hasn’t applied to computer programming languages, which makes the case between Google and Oracle quite important for future innovation.
The appellate court ruled:
Because we conclude that the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection, we reverse the district court’s copyrightability determination with instructions to reinstate the jury’s infringement finding as to the 37 Java packages. Because the jury deadlocked on fair use, we remand for further consideration of Google’s fair use defense in light of this decision. With respect to Google’s cross-appeal, we affirm the district court’s decisions: 1) granting Oracle’s motion for JMOL as to the eightdecompiled Java files that Google copied into Android; and (2) denying Google’s motion for JMOL with respect to the rangeCheck function. Accordingly, we affirm-in-part, reverse-in-part, and remand for further proceedings.
Oracle acquired Java when it purchased Sun Microsystems in 2009.
The appellate-court decision isn’t just a matter of two tech giants battling it out in court. Often enough—as in the seemingly endless series of Apple vs. Samsung cases—court battles between tech titans can end up meaning very little to average users and developers. The Oracle-Google case, however, touches on fundamental aspects of software and the way programs and Web services interact with each other.
The Electronic Frontier Foundation summed up the dangers of copyrighting APIs during the Oracle suit in May 2012:
Here’s the problem: Treating APIs as copyrightable would have a profound negative impact on interoperability, and, therefore, innovation. APIs are ubiquitous and fundamental to all kinds of program development. It is safe to say that ALL software developers use APIs to make their software work with other software. For example, the developers of an application like Firefox use APIs to make their application work with various OSes by asking the OS to do things like make network connections, open files, and display windows on the screen. Allowing a party to assert control over APIs means that a party can determine who can make compatible and interoperable software, an idea that is anathema to those who create the software we rely on everyday. Put clearly, the developer of a platform should not be able to control add-on software development for that platform. [Emphasis added]
The fight between Oracle and Google is nowhere near over. Google will almost certainly appeal the ruling to the Supreme Court, which over the past several years has shown a general willingness to rein in the federal-circuit court’s rulings on intellectual property.
For now, the case has been remanded back to the federal district court in Northern California, where Google will have another chance to argue that its use of the Java APIs falls under fair use. We’ve reached out to Google for comment, and will update when we hear back from the company.
Oracle issued the following statement:
We are extremely pleased that the Federal Circuit denied Google’s attempt to drastically limit copyright protection for computer code. The Federal Circuit’s opinion is a win for Oracle and the entire software industry that relies on copyright protection to fuel innovation and ensure that developers are rewarded for their breakthroughs. We are confident that the district court will appropriately apply the fair use doctrine on remand, which is not intended to protect naked commercial exploitation of copyrighted material.
And here’s the text of the appeals court decision:
Image of Larry Ellison on stage by Flickr user Sen Chang
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