<story><title>Jury in Oracle v. Google finds in Google&apos;s favour</title><url>https://twitter.com/sarahjeong/status/735924335412543488</url></story><parent_chain><item><author>rayiner</author><text>These are the statutory fair use factors the jury was required to consider (17 U.S.C. 107):&lt;p&gt;(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;&lt;p&gt;(2) the nature of the copyrighted work;&lt;p&gt;(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and&lt;p&gt;(4) the effect of the use upon the potential market for or value of the copyrighted work.&lt;p&gt;It&amp;#x27;s a somewhat surprising result, because two of the factors weigh heavily against Google (it&amp;#x27;s a commercial work, and was important to Android gaining developer market-share). Oracle&amp;#x27;s strategy going forward, both in post-trial motions and in any subsequent appeal, will be based on arguing that no rational jury could have applied these factors to the undisputed facts of the case and concluded that the fair use test was met.&lt;p&gt;It&amp;#x27;s also not a particularly satisfying result for anybody. If API&amp;#x27;s are copyrightable, then I can&amp;#x27;t think of a better case for protecting them than in this one, where Google created a commercial product for profit and there was no research or scientific motivation. It wasn&amp;#x27;t even really a case (like say, Samba) where copying was necessary to interoperate with a closed, proprietary system. Davlik isn&amp;#x27;t drop-in compatible with the JVM anyway.&lt;p&gt;That makes Oracle&amp;#x27;s win on the subject matter issue basically a pyrrhic victory for anyone looking to protect their APIs. They&amp;#x27;re protectable, but can&amp;#x27;t be protected in any realistic scenario.&lt;p&gt;And if you&amp;#x27;re in the camp that believes APIs should not be protected, this precedent--if it stands--means that you&amp;#x27;ll have to shoulder the expense of going to trial on the fair use issue before winning on the merits.</text></item></parent_chain><comment><author>dctoedt</author><text>As to factor number 1, the purpose and character of the infringing use:  In the &lt;i&gt;2 Live Crew &amp;#x2F; Pretty Woman&lt;/i&gt; case, the Supreme Court held that just because an infringing use is commercial, that doesn&amp;#x27;t automatically mean it&amp;#x27;s unfair (although it is indeed an important factor).  [0]&lt;p&gt;As to factor number 2, the nature of the copyrighted work:  For the last 20 years or so, courts have been backing away from the expansive approach of &lt;i&gt;Whelan v. Jaslow&lt;/i&gt; and instead using a &lt;i&gt;Computer Associates v. Altai&lt;/i&gt; &amp;quot;abstraction, filtration, comparison&amp;quot; analysis; in the end, courts typically hold that copyright protection for &lt;i&gt;functional&lt;/i&gt; aspects of software is &amp;quot;thin.&amp;quot; See, e.g., UC law professor (and MacArthur &amp;quot;genius grant&amp;quot; recipient) Pam Samuelson&amp;#x27;s 2013 review of the case law. [1]&lt;p&gt;From what I&amp;#x27;ve read of the facts, number 3 -- the amount and substantiality of the portion used from the copyrighted work in relation to the work as a whole -- might have weighed heavily in Google&amp;#x27;s favor.&lt;p&gt;As to number 4, I didn&amp;#x27;t get a sense whether or not the evidence showed that Android has had a material adverse effect on the market for Java; that weighed heavily in the Supreme Court&amp;#x27;s thinking in the &lt;i&gt;2 Live Crew&lt;/i&gt; case.&lt;p&gt;[0] &lt;a href=&quot;https:&amp;#x2F;&amp;#x2F;supreme.justia.com&amp;#x2F;cases&amp;#x2F;federal&amp;#x2F;us&amp;#x2F;510&amp;#x2F;569&amp;#x2F;case.html&quot; rel=&quot;nofollow&quot;&gt;https:&amp;#x2F;&amp;#x2F;supreme.justia.com&amp;#x2F;cases&amp;#x2F;federal&amp;#x2F;us&amp;#x2F;510&amp;#x2F;569&amp;#x2F;case.htm...&lt;/a&gt;&lt;p&gt;[1] &lt;a href=&quot;http:&amp;#x2F;&amp;#x2F;scholarlycommons.law.northwestern.edu&amp;#x2F;cgi&amp;#x2F;viewcontent.cgi?article=1045&amp;amp;context=nulr&quot; rel=&quot;nofollow&quot;&gt;http:&amp;#x2F;&amp;#x2F;scholarlycommons.law.northwestern.edu&amp;#x2F;cgi&amp;#x2F;viewcontent...&lt;/a&gt;</text></comment>
<story><title>Jury in Oracle v. Google finds in Google&apos;s favour</title><url>https://twitter.com/sarahjeong/status/735924335412543488</url></story><parent_chain><item><author>rayiner</author><text>These are the statutory fair use factors the jury was required to consider (17 U.S.C. 107):&lt;p&gt;(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;&lt;p&gt;(2) the nature of the copyrighted work;&lt;p&gt;(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and&lt;p&gt;(4) the effect of the use upon the potential market for or value of the copyrighted work.&lt;p&gt;It&amp;#x27;s a somewhat surprising result, because two of the factors weigh heavily against Google (it&amp;#x27;s a commercial work, and was important to Android gaining developer market-share). Oracle&amp;#x27;s strategy going forward, both in post-trial motions and in any subsequent appeal, will be based on arguing that no rational jury could have applied these factors to the undisputed facts of the case and concluded that the fair use test was met.&lt;p&gt;It&amp;#x27;s also not a particularly satisfying result for anybody. If API&amp;#x27;s are copyrightable, then I can&amp;#x27;t think of a better case for protecting them than in this one, where Google created a commercial product for profit and there was no research or scientific motivation. It wasn&amp;#x27;t even really a case (like say, Samba) where copying was necessary to interoperate with a closed, proprietary system. Davlik isn&amp;#x27;t drop-in compatible with the JVM anyway.&lt;p&gt;That makes Oracle&amp;#x27;s win on the subject matter issue basically a pyrrhic victory for anyone looking to protect their APIs. They&amp;#x27;re protectable, but can&amp;#x27;t be protected in any realistic scenario.&lt;p&gt;And if you&amp;#x27;re in the camp that believes APIs should not be protected, this precedent--if it stands--means that you&amp;#x27;ll have to shoulder the expense of going to trial on the fair use issue before winning on the merits.</text></item></parent_chain><comment><author>magicalist</author><text>&amp;gt; &lt;i&gt;If API&amp;#x27;s are copyrightable&lt;/i&gt;&lt;p&gt;&amp;gt; &lt;i&gt;And if you&amp;#x27;re in the camp that believes APIs should not be protected, this precedent--if it stands--means that you&amp;#x27;ll have to shoulder the expense of going to trial on the fair use issue before winning on the merits.&lt;/i&gt;&lt;p&gt;worth remembering that since that decision was made by the Federal Circuit, it has no bearing on the rest of the court  system when it comes to copyright. There is no place where &amp;quot;APIs are copyrightable&amp;quot; is binding precedent.&lt;p&gt;Any lawsuits that don&amp;#x27;t end up in the Federal Circuit (which pure copyright suits never do) will have to start from &amp;quot;are APIs copyrightable?&amp;quot; before having to make any sort of fair use defense.</text></comment>