You, go, Jon! [LWN.net]

You, go, Jon!

Posted Mar 21, 2011 6:00 UTC (Mon) by wahern (subscriber, #37304)
In reply to: You, go, Jon! by sfeam
Parent article: Has Bionic stepped over the GPL line?

What precedent? I'm not aware of any precedent. (If you know of legal precedent, I would like to know about it. IANAL, but I intend to play one someday.)

Also, it's worth noting that Edward Naughton's description of Sega Enterprises v. Accolade (9th Cir. 1992) is totally wrong. (Atrociously wrong, in fact.) He used it as a possible defense for Google, but that case is quite the opposite. First of all, his description is totally wrong. Sega v. Accolade said that the disassembly *was* copyright infringement, but that it was a Fair Use. And it said that it was a Fair Use *not* because the copied code embodied the *idea* of interoperability (it rejected that subject-matter argument, as have most other courts), but only because it was the only way to get at otherwise uncopyrightable material.

In other words, the idea that particular source code is not copyrightable because it "merges" with the idea of interoperability or compatibility with an operating system is a bogus argument. (Rejected in Sega; rejected in Apple Computer v. Franklin Computer (3d Cir. 1983). Rejected in other cases.) The only way Google's theory holds water is if the source code at question itself is completely uncopyrightable, whether in a header file or any other file. And that means it must be bereft of any original creativity. (Under the Feist analysis, which found no copyright in a phone book because it listed residences in alphabetical order--an uncreative compilation of facts; begging the question of whether some other creative listing not in alphabetical order might be sufficient creativity to protect the phone book.)

Frankly, as a programmer I'm not so sure I want Google to be right.

Google can be wrong yet Android applications still be safe. Google could be wrong that a 10-line inline function is not copyrightable; but correct that a typedef is not copyrightable. And as long as the app only depends on the typedef and not the inline function, all is fine. Google will merely have to stop stripping copyright notices from source files--GPLv2 sec. 1 requires that the licensee "keep intact all the notices that refer to this License."

I suspect Google's legal theory is born of the abstraction/filtration/comparison test described in Computer Associates v. Altai, 982 F.2d 693 (2d Cir. 1992). Reading the case, or part III, or at least section III.A(2), is like a mini-education in copyright law as applied to computer programs. http://www.bitlaw.com/source/cases/copyright/altai.html

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You, go, Jon!

Posted Mar 21, 2011 6:17 UTC (Mon) by wahern (subscriber, #37304) [Link]

I should be more clear. Merely because a header file describes a kernel interface doesn't mean that it's not copyrightable on an interoperability theory. It's copyrightable merely if the description itself is sufficiently creative. One way it would not be creative is if the expression is dictated by efficiency concerns, or general engineering best practice. But it's not lacking in creativity merely because it's describing some other code, and therefore hemmed in by the necessity of describing that other code. Even if the header is perfectly dictated by what it's describing (i.e. there's only one way to create the header), if what it's describing is copyrightable than so is the header.

Otherwise, a table of contents wouldn't be copyrightable merely because it's describing the book. But if each chapter heading has a creative aphorism, so does the table of contents; therefore the table of contents would be copyrightable.

Now, if you processed the table of contents, stripped out the chapter headings and were left only with a table of chapter numbers and pages, you would be solid. But that is not what Google is doing. If you think that by stripping out the comments all the copyrightable expression is gone, then you're implying that huge bodies of source code are not copyrightable by themselves, no matter what. That's a dangerous precedent.

Note that this isn't like the SCO case at all. That's a false comparison on so many levels.

You, go, Jon!

Posted Mar 21, 2011 18:33 UTC (Mon) by butlerm (subscriber, #13312) [Link]

What precedent? I'm not aware of any precedent. (If you know of legal precedent, I would like to know about it. IANAL, but I intend to play one someday.)

Try Baystate v. Bentley Systems (1996), which held that technical interfaces are not copyrightable, including structure layouts and element names. See here (pdf). It is hard to see what could be left in a stripped interface header file, other than complex macros or inline functions, which presumably have much stronger protection.

You, go, Jon!

Posted Mar 24, 2011 6:49 UTC (Thu) by branden (subscriber, #7029) [Link]

That's useful, but I cannot find any record that this decision was appealed.

This is important because the holdings in the case were by a federal *district* court. If it had been appealed, it would have gone to a federal appellate court--the holdings of appellate courts are binding upon that court's jurisdiction (the district, the circuit, or the entire U.S. depending on the appellate court level).

District Court opinions do not constitute precedent in the United States. Any court anywhere in the U.S., including that *same* district court, is at liberty to completely disregard the findings and results in this case (unless they have a local rule to the contrary, which might be the case).

You, go, Jon!

Posted Mar 24, 2011 16:24 UTC (Thu) by butlerm (subscriber, #13312) [Link]

District court decisions do not count as binding precedent, certainly. That doesn't mean they aren't widely influential, in terms of logic and reasoning. The idea is to interpret the law, not make it up, right?

If the district court's ruling is a tour de force of rationality, any other court is going to have a difficult time issuing a contrary one. This particular decision treated the issues here in greater depth than any previous U.S. court, and should reasonably be treated as a guide to the way other courts would rule when faced with the same question.