Tuesday, 10 May 2016

Oracle V Google: "API Is Property"

Cartoon of Oracle V Google fighting
Oracle and Google are back in court fighting over the API used in Google's Android operating system. The implications are huge; allowing copyright on API effectively puts a tollbooth on innovation and any item with Java code in it is vulnerable to charges of infringement. Can you imagine the consequences? I can. Let's take a closer look.

Since copyright lasts for the life of the author + 70 years, this would be worse than patents as the length of the monopoly on innovation would be much longer — and the rightsholder has the power to say no to those who ask for a licence to use the item in question.

The story

The Oracle V Google saga is all about whether or not API, i.e. the instructions on how software components interact, is copyrightable. Google used Java API for its Android software applications. Oracle cried foul and demanded damages for copyright infringement in which it claimed that the lines of code utilised by Google. The judge in the first case, William Alsup, learned to program, the better to understand the issues. In May 2012 he decided that Oracle's patents hadn't been infringed and that APIs are not copyrightable. In 2014 Oracle appealed and the court found that APIs are indeed copyrightable, so the issue was now over whether or not Google's application thereof could be considered fair use. Now they're back in court to decide on the fair use question. And the presiding judge is US District Judge William Alsup.

The arguments: is copyright property?

One of the biggest problems I encounter on a daily basis as a Pirate is the insistence of professionals to discuss copyright in terms of property rights and the protection conferred thereby. Let me clue you in: copyright is a temporary monopoly privilege and it gives you the right to sue for infringement. Mass infringement on a commercial scale is a criminal offence as it could put a rightsholder out of business if they can't maintain control over the distribution of the work in question. This right to control distribution is a privilege that lasts for life of the author plus 70 years, i.e. it eventually comes to an end. It's freehold, not leasehold, and the work eventually falls into the public domain where anyone can use it or make money from it. Mike Masnick of Techdirt recognises property elements in copyright, i.e. the tradeable aspects, his reasoning being that you can't sell what you don't own. It's how movies are made and records produced, I get that. I argue with him over the use of the word "property" to describe any aspect of copyright at all on the grounds that, if you give a maximalist an inch, they'll take a mile.

If people are going to go on using the term "intellectual property" -- and they will -- then at least point out that the content or the invention or the logo or whatever are not the "property". The property is the artificial monopoly itself, granted by the government, in the form of the copyright, the patent or the trademark. Then, we can look more honestly at the actual contribution of those laws and at the true nature of ownership. If GM holds the copyright on the software in your car, it has no actual ownership stake in any part of your car. We should all agree on that. But it can still own the copyright on that software -- and it can do as it wants with that copyright. But the actual copy of the software (inasmuch as that's even a discrete thing that actually exists) remains yours.

I recognize that some will fight this and continue to insist that any use of the term "intellectual property" is a bad idea, but that's a losing battle. Let's admit that there are certain property-like aspects in the legal instruments by themselves, but reject the false notion -- often pushed by those abusing intellectual property laws -- that the underlying content, invention, trademark, etc. has any property-like rights itself. - How To Use 'Intellectual Property' Properly, by Mike Masnick for Techdirt

You can see the trolls going nuts in the comments, which underlines my point. Anyway, when you read what's being said in the courtroom by Oracle, you can see why I hold the views I've got. You see, they are totally referring to the Java language itself as being their property in the way that your car is your property.

Oracle's position:

"I always have to think when I write this out, because I'm not used to writing billions," Oracle lawyer Peter Bicks told a jury here as he wrote out "3,000,000,000" on a large sheet of paper.

"Three billion mobile phones have been activated with Oracle's property on them," he said. There are 100,000 Android phones being activated each hour, he continued. "$42 billion in revenue through all of those activations. Each with our client's property in them. Valuable computer code." - Google took our property—and our opportunity, Oracle tells jury, by Joe Mullin for Ars Technica

Well look who's abusing incumbent protectionism laws! Oracle's liar lawyer is telling two whoppers: that copyright is property in the way that your car is your property, and that infringement is theft. Neither of these statements is true due to the limits of the actual property element of copyright. Infringement is the usurpation of the rightsholder's monopoly over distribution, which may cause financial harm by diverting money that the rightsholder might have received to the infringer.

Bicks's claim that Oracle was financially harmed by Google not getting a licence is based on the fact that Google is making money from using Java, even though it was actually open-sourced.

Google's position:

Basically, Google is saying that while it doesn't consider the APIs themselves to be copyrightable, it reckons that the usage thereof, e.g. Google Maps is. And since the basic argument is that Google is making money by using Java in its products, which a company owned by Oracle created and open-sourced, therefore Google owes Oracle a share of its profits, Oracle might not prevail. "You make money using something I'm associated with, so pay me!" is a weak sauce argument. Remember, Oracle didn't create Java, Sun did. Then Sun gave it away. The important thing to note about open source is that you're allowed to make money from using the actual code, etc., but you're not allowed to monopolise the code itself.

The implications

If Java is open source, it's not under copyright. I've never heard of an open source code having its openness revoked. Assume this is the case: no infringement could have taken place whether APIs are copyrightable or not; if Google stuck to the terms of the GPL licence issued by Sun, no infringement took place and its use of Java was entirely lawful. If Java hadn't been open sourced, the question of fair use would remain, and that's what is at stake. The crux of the case, then, is whether or not the particular Java code used by Google was actually open source or not, and if not, was Google's use thereof fair use? If it's not, and the appeal court's verdict is upheld, we're in deep schtuck. APIs give different programs a way to "talk" to each other; without them there's no inter-operability. This then hampers innovation as developers would have to create a language for their specific products from scratch, and their usefulness would be limited to the items they could successfully interact with.

By restricting the right to develop technology to rightsholders, technological development grinds to a halt since research and development costs money. With the force of law to protect his financial interests, the incumbent has no incentive to do anything but lie in his pile of gold like a sated dragon till the monopoly comes to an end. With terms of lifetime plus 70 years, that's a long time to wait to be able to tinker with the code. When the alternative is competing monopolies of products that can't or won't interact with each other, the consumer's only choice is to submit to one monopolist or to another. Don't tell me that's free market competition! If Google loses this case, then, we all lose.

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