Google LLC vs. Oracle America Inc. : Android Java Software Interface Copyrights Fair Use Juries : U.S. Supreme Court Oral Argument October 7

Please Note: We have edited our original October 6 posting on October 7, but prior to oral argument.
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At the United States Supreme Court, oral argument is scheduled for October 7, 2020, in the landmark case of Google LLC v. Oracle America Inc. which, as noted at SCOTUSblog and elsewhere, raises the following issues:

#1 -- Whether copyright protection extends to a software interface;
and
#2 -- Whether, as the jury found, the petitioner’s use of a software interface [API] in the context of creating a new computer program constitutes fair use. [emphasis added by LawPundit]

Kris Kemp of Kemp IT Law writes in Google v Oracle: the Copyright Case of the Decade:

"It will be interesting to see if the US Supreme Court is influenced by the view of the Court of Justice of the European Union that “copyright in a computer program does not protect either the programming language in which it is written or its interfaces (specifically, its data file formats) or its functionality from being copied.”^{9 [LawPundit includes here the actual footnote 9: Per SAS Institute Inc v World Programming Limited [2013] EWHC 69 (Ch), following C-406/10 SAS Institute Inc v World Programming Limited, ECLI:EU:C:2012:259)]"}

Years ago, already, we posted at length at LawPundit about this case at: 

Android and the Oracle Java API Copyright Scam Against Google
and
Jury Finds in Favor of Google Against Oracle in Android v. Java Fair Use Copyright Case

We thought that the case had been decided once and for all in favor of Google, but the Federal Circuit has once again upset the apple cart in now finding in favor of Oracle and negating and nullifying the jury verdict, so that the case has gone via the grant of writ of certiorari to the United States Supreme Court, in a case upon which the future of software -- at least in the USA -- hangs in the balance, as written by Tom Krazit at Protocol.com in Google and Oracle are headed to the Supreme Court. The future of software hangs in the balance.

"A generation of software built around shared assumptions for interoperability faces an uncertain future depending on the outcome of a yearslong legal fight between Google and Oracle."

Ronald Mann has a shorter detailed analysis at SCOTUSblog titled Case preview: Justices to weigh in on landmark copyright battle between Google and Oracle. See Ronald Mann, Case preview: Justices to weigh in on landmark copyright battle between Google and Oracle, SCOTUSblog (Oct. 5, 2020, 3:03 PM), https://www.scotusblog.com/2020/10/case-preview-justices-to-weigh-in-on-landmark-copyright-battle-between-google-and-oracle/

What is to be made of this case, which is so critical for the entire digital industry?

The legal issue of the copyrightability of software interfaces is so old that Jonathan Band has written extensively about it since 1995, most recently at Interfaces on Trial 3.0: Oracle America v. Google and Beyond, 148 Pages Posted: 5 Dec 2016 Last revised: 22 Jun 2018 -- the link to the pdf online is https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID3197233_code1754101.pdf?abstractid=2876853&mirid=1&type=2.

Initially, as one can read there, software interfaces were correctly viewed as non-copyrightable, but, alas, weak judges and weak legislators in the USA and internationally have steadily eroded the inescapable conclusion that software interfaces were necessary for interoperability and were thus not "creative expression" in terms of copyright law. Rather such interfaces were solely functional and not within the ambit of the creative expression that the Founders intended to protect by establishing the Constitutional basis for copyright law.

Jonathan Band writes, to start out his most recent 2018 revision, Interfaces on Trial 3.0: Oracle America v. Google and Beyond, as follows:

"Here We Go Again.... [emphasis added by LawPundit]

In 1995, I coauthored the first volume, INTERFACES ON TRIAL: INTELLECTUAL PROPERTY AND INTEROPERABILITY ON THE GLOBAL SOFTWARE INDUSTRY (“INTERFACES ON TRIAL 1.0”), with Masanobu Katoh. At the time we published INTERFACES ON TRIAL 1.0, we thought that the interoperability debate was largely over. In the United States, several appellate decisions established that copyright did not protect interfaces specifications, the information necessary to achieve interoperability, nor did it prevent the reverse engineering necessary to determine the interface specifications. The European Union adopted a software directive that required member states to enact exceptions permitting reverse engineering for the purpose of achieving interoperability. 

However, contrary to our expectations, the interoperability debate continued. This continuation of the debate between 1995 and 2010 is chronicled in our second volume, INTERFACES ON TRIAL 2.0. That volume focused on two new threats to interoperability that emerged in the United States. First, several courts enforced contractual restrictions on reverse engineering, even when the vendors placed the restrictions in “shrinkwrap” or “click-on” licenses for widely distributed consumer software. Second, the World Intellectual Property Organization Copyright Treaty, adopted in December 1996, required signatories to take adequate measures to prevent the circumvention of copy protection technologies for purposes of infringement. As Congress was implementing this requirement, interoperable developers recognized that the broad prohibition Congress was considering would allow dominant firms to frustrate interoperability by placing “locks” on their software. Accordingly, the interoperable developers lobbied for and secured an interoperability exception in the Digital Millennium Copyright Act (“DMCA”).

INTERFACES ON TRIAL 2.0 also examined the interoperability debate in the Pacific Rim after 1995. Dominant U.S. companies, with the assistance of the U.S. Trade Representative, vigorously opposed the adoption of reverse-engineering exceptions based on the EU Software Directive in Australia, Hong Kong, and Korea.

When we submitted the book for publication in 2010, we once again assumed that the interoperability debate was over. We believed that there was a global consensus that copyright should not interfere with interoperability. And once again, we were wrong. In May 2014, the U.S. Court of Appeals for the Federal Circuit (“CAFC”) issued a decision in Oracle American v. Google that ignored the evolution of software copyright law over the past thirty years. In reaching its conclusion that copyright protects the elements necessary to achieve interoperability, the CAFC relied on a long-discredited Third Circuit decision, Apple Computer v. Franklin Computer, 714 F.2d 1240, 1253 (3d Cir. 1983), which stated that compatibility is “a commercial and competitive objective which does not enter into the somewhat metaphysical issue of whether particular ideas and
expression have merged.”
 
In addition to the CAFC’s disruptive decision, there have been developments relating to interoperability in the context of the DMCA’s prohibition on the circumvention of technological protection measures. Furthermore, the Court of Justice of the European Union (“CJEU”) in its 2012 decision in SAS Institute v. World Programming interpreted the European Union Software Directive in a manner consistent with U.S. law prior to the CAFC’s decision in Oracle America. These various developments have prompted me to write this third volume, this time without my friend and coauthor Masanobu Katoh."

Have the Federal Circuit judges read Band's work? We sincerely doubt it.

In the last 15 years we have never been wrong in pointing to decisions of the Federal Circuit that we thought would be overturned by the U.S. Supreme Court, and we hope that our streak does not end here in this very important case, as we again predict that the Supremes will find it an error that the jury decision was negated and nullified and replaced by the Federal Circuit's decision -- made only for the second jury trial and not for the first (!) -- that Google's actions were not fair use "as a matter of law" (the Federal Circuit opinion wrote that "we conclude that Google's use of the Java API packages was not fair as a matter of law").

In other words, we think the Supremes will formally skip the controversial copyright issue (#1 above) as such, and decide via the jury issue (#2 above), though there may be opinion dictum viz. dicta on the copyrightability of software interfaces, such interfaces being essential for software interoperability and which -- by their very strictly limited functional nature -- do not fall in any way under the creative "expression" required for a claim of copyright protection. Software interface code is not a book novel written for publication -- expressing an author's creative ideas -- rather, it is functional text, regardless of how it is written.

Historically, the Supreme Court has been very skeptical of the broad brush with which the Federal Circuit Court too often paints its decisions, and a court finding that certain challenged actions by Google -- contrary to the jury finding -- did not constitute fair use as a matter of law thus squarely puts the Federal Circuit at odds with the increasingly recognizable legal sanity found in modern Supreme Court decisions on intellectual property law, a common sense approach which recognizes that "fair use" -- "as a matter of law" -- is not such an easy thing to identify nor could one easily draw a "standard" from the Federal Circuit Court's decision here that could be applied to other cases.

Indeed, if the decision in favor of Oracle were upheld, it would lead to mass confusion everywhere in the world software industry -- especially if it is different from EU law -- as to what is protected and what is not protected by copyright law, not even mentioning the totally undeserved windfall profit that Oracle is trying to achieve via Java in this case, a result which was never intended by the Founders or the drafters of the U.S. Constitution. Obviously, American law and the U.S. Constitution prevail unequivocally, but one should also be aware of the rest of the world and be concerned about prevailing rules, especially in IP law.

Speaking of "the matter of law", American law has a four-factor test-- as a matter of law -- for fair use, and the jury found that fair use had not been violated. Mann, in his article cited above, in our opinion correctly identifies the standard to be applied: "Because the jury found that the use was fair, all agree that the verdict should be upheld if the evidence would have permitted a reasonable jury to reach that conclusion on any understanding of the factors."

It is obvious, we would think, that it is not the job of Federal Circuit Court judges to substitute their -- in our view -- oft errant opinions for those of "reasonable" juries. And we, for one, find the jury finding here to be eminently reasonable.

Case closed (or so we hope) -- for it all now depends on the opinions and decision of the Justices of the Supreme Court.

The upcoming oral argument will tell us more.

Einstein's General Theory of Relativity Confirmed Convincingly by the First Astrophysics Photograph of a Cosmic "Black Hole"

The coronavirus COVID-19 pandemic once again drives home the recognition that humankind inhabits a universe harboring many mysteries at microscopic but also macroscopic levels. "Viruses" that are 1000 times smaller than a human hair and that are by definition not even "alive" can wreak havoc on our "living" biological organisms. As previously written at andiskaulins.com [moderately edited]:

"[Our] theory of the universe derives from the observation that every human being is a PART of the universe. We are neither "outside" looking "in" nor "inside" looking "out". We are inside looking inside.

Our structure -- whatever it is -- must be the same as the rest of the universe.... For those more "physically" and/or "technically" inclined, see [our] blog at Einstein's Voice, which has some thoughts on various theories of Physics [i.e. explanations as to how the universe works]."

We started the blog Einstein's Voice many years ago to support the deceased Albert Einstein's incomparable theories about how the universe works against some -- in our view -- questionable recently formulated alternative theories, such as "string theory". We adapted the blog name from the famed His Master's Voice.

Albert Einstein's "General Theory of Relativity" (to differentiate "Big Al's" Special Theory of Relativity) remains the primary cornerstone of modern physics, but overwhelming proof of the theory has been hard to come by, as we posted already in 2005 at NASA Gravity Probe-B and Einstein's General Theory of Relativity, quoting Stanford University's Bog Kahn via the Stanford Newsletter as follows:

"For the past 17 months, NASA's Gravity Probe-B (GP-B) satellite has been orbiting the Earth using four ultra-precise gyroscopes, about a million times better than the finest navigational gyroscopes, to generate the data required for this unprecedented test....

This year, physicists celebrate the 100th anniversary of Einstein's "miraculous year," in which he received his doctorate in physics from the University of Zurich and published four seminal papers, including the special theory of relativity and a paper on light that garnered him the Nobel Prize in 1921. But Einstein's crowning achievement came in 1916, with his publication of the general theory of relativity, in which he expanded the special theory of relativity to include the elusive concept of gravity. With general relativity, Einstein forever changed our Newtonian view of gravity as a force, postulating rather that space and time are inextricably woven into a four-dimensional fabric called spacetime, and that gravity is simply the warping and twisting of the fabric of spacetime by massive celestial bodies. Even though it has become one of the cornerstones of modern physics, general relativity has remained the least tested of Einstein's theories. The reason is, as Caltech physicist Kip Thorne once put it: "In the realm of black holes and the universe, the language of general relativity is spoken, and it is spoken loudly. But in our tiny solar system, the effects of general relativity are but whispers." And so, any measurements of the relativistic effects of gravity around Earth must be carried out with utmost precision. Over the past 90 years, various tests of the theory suggest that Einstein was on the right track. But, in most previous tests, the relativity signals had to be extracted from a significant level of background noise. The purpose of GP-B is to test Einstein's theory by carrying out the experiment in a pristine orbiting laboratory, thereby reducing background noise to insignificant levels and enabling the probe to examine general relativity in new ways."

As just reported, we now have the

"First photo of a black hole [and it] supports Einstein's theory of relativity" as headlined at CNN by Ashley Strickland. She writes, inter alia:

""Using the gauge we developed, we showed that the measured size of the black hole shadow in M87 tightens the wiggle room for modifications to Einstein's theory of general relativity by almost a factor of 500, compared to previous tests in the solar system," said Feryal Özel, study coauthor and University of Arizona astrophysics professor, in a statement. "Many ways to modify general relativity fail at this new and tighter black hole shadow test." [emphasis added by us]

Now that researchers know they can use images of black holes to test the theory of gravity, it opens up more possibilities for the future.

"Together with gravitational wave observations, this marks the beginning of a new era in black hole astrophysics," said Dimitrios Psaltis, lead study author and University of Arizona astrophysics professor, in a statement.

The black hole shadow test of relativity discussed in the above article is illustrated by the following explanatory graphic, which is linked here from the CNN article, with the following accompanying text (if the image fails, go to the CNN article):

"This visualization, including the first image of a black hole, shows the new gauge developed to test the predictions of modified gravity theories against the measurement of the size of the M87 shadow."

Look especially at the differing sizes of the blue circles
drawn on the black hole by the researchers,
which emphasize the theoretical differences
between Einstein's General Theory of Relativity
and those proposing alternative theories.

Even if the image above is not shown perfectly via the CNN link,
do ultimately go that CNN article to get the entire story!
 

For those statistically inclined,
we can say that the score here was

Albert Einstein 500 Competitors 0.

Einstein's Voice Rejoice!

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Our image below was made by us
using Starry Night Pro astronomy software
and was added a few hours later
after posting the above material.
  The image shows the location of M87 in the starry sky. 

Improving Education in the Modern World: Teaching The Dry Facts Prior to the Teaching of Conceptual Ideas and Cognitive Concepts

"Bad Teaching is Tearing America Apart" is an article by Naomi Schaefer Riley at the Wall Street Journal, September 12, 2020, reviewing "How to Educate a Citizen", by E.D. Hirsch, Jr., a timely book just published by HarperCollins, in which Hirsch examines important aspects of the teaching focus of the American educational system and its connection to problems of culture and race.

Naomi Schaefer Riley writes inter alia:

"The current fashion is for teachers to be a “guide on the side, instead of a sage on the stage,” [Hirsch] says, quoting the latest pedagogical slogan, which means that teachers aren’t supposed to lecture students but to “facilitate” learning by nudging students to follow their own curiosity. Everything Mr. Hirsch knows about how children learn tells him that’s the wrong approach. “If you want equity in education, as well as excellence, you have to have whole-class instruction,” in which a teacher directly communicates information using a prescribed sequential curriculum." [emphasis added by us]

The valuable -- if also surely controversial -- educational issues of our time presented by Hirsch in his book would appear to be essential reading for everyone, not just educators, and at all levels of teaching and learning.

Studies show that many teachers prefer to teach "concepts" rather than "facts", which is understandable, since concepts can be far more fun to teach, being a creative focus of attention, but it is of course the often dry "facts" that people must learn and utilize first, since they provide the necessary practical knowledge usage base for teaching and learning, and -- in later application -- since they establish areas of accepted expertise in all fields of life. 

"Conceptual ideas" viz. "cognitive concepts", on the other hand, are important dynamic tools down the road that are necessary to obtain more or improved knowledge beyond that which has already been taught and learned or is allegedly "known" to be true of thought to be true.

But the foundation of facts must have initial precedence, and must be taught in the schools, rather than the conclusions based on such facts -- and this also applies to the religions, and similar "conclusory" disciplines -- whose concepts may be true or not. This order of priority should apply especially -- but not only -- to primary school teaching and learning levels, and should also take priority precedence at undergraduate college and university graduate research levels.

FIRST the facts, and only then can we rightly ponder what those facts mean, always checking those same alleged facts for veracity and up-to-datedness. The state of the art of knowledge is always in flux, and what is seen as true today, may not be seen as true tomorrow. Get your facts straight and only then let your conceptual thoughts and conclusions follow. Tempus fugit. Consider that what "is known" is always much less than what can still be known or will be discovered as new facts in the future, with new concepts to follow -- that in any case is the history of human knowledge.

Hat tip to CaryGEE.