US Supreme Court rules for Google over Oracle [LWN.net]

US Supreme Court rules for Google over Oracle

Posted Apr 5, 2021 23:11 UTC (Mon) by bauermann (subscriber, #37575)
In reply to: US Supreme Court rules for Google over Oracle by Paf
Parent article: US Supreme Court rules for Google over Oracle

While I agree with basically everything you said, I think it's important to point out that copyright is nothing like property. Its legal basis is entirely different, and that matters a lot.

Copyright is a made-up concept that the government decided to create to incentivize creators with the ultimate goal of improving society as a whole.

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US Supreme Court rules for Google over Oracle

Posted Apr 6, 2021 1:17 UTC (Tue) by rgmoore (✭ supporter ✭, #75) [Link] (4 responses)

Copyright is a made-up concept that the government decided to create to incentivize creators with the ultimate goal of improving society as a whole.

Yes, copyright is a made-up concept that exists as the government's way of achieving a broader social goal. But in the service of that goal, the government has made it possible to assign copyright to someone else. This is a good and necessary thing. At the very least, it must be possible for a copyright holder to assign the right to their work temporarily. If they can't temporarily assign the right to copy, authors couldn't get a publisher to print their book, musicians couldn't license their songs to be played on streaming services, and software authors couldn't allow users to put copies of their software on their computers. And if you're going to allow people to transfer the copyright temporarily in exchange for a fee, it would be strange not to let them transfer it permanently.

US Supreme Court rules for Google over Oracle

Posted Apr 6, 2021 10:35 UTC (Tue) by sabroad (guest, #92392) [Link] (2 responses)

> And if you're going to allow people to transfer the copyright temporarily in exchange for a fee, it would be strange not to let them transfer it permanently.

Licences are not "transfers" of copyright, not even temporarily: only the copyright holder has the right to licence the work.

The reason for copyright assignment is not because licences exist but that work-for-hire is the norm.

US Supreme Court rules for Google over Oracle

Posted Apr 6, 2021 17:46 UTC (Tue) by rgmoore (✭ supporter ✭, #75) [Link] (1 responses)

Licences are not "transfers" of copyright, not even temporarily: only the copyright holder has the right to licence the work.

Yes and no. An exclusive license looks a lot like a temporary transfer of the property, especially if it comes with sublicensing rights. I think this gets at a bigger reason our legal system tends to look at things like copyright as forms of property: it's a useful abstraction. Just as Unix treats all kinds of things as files, even when they aren't, the legal system treats all kinds of things as property even when they aren't. Our legal and business systems are built around the concept of property, and they've spent centuries learning how to reason about it. Treating more and more abstract kinds of things- contracts, obligations, debts, government granted privileges, or what have you- as property lets lawyers and business people apply those centuries of case law and business processes to them. Even if the abstraction is imperfect so there need to be new principles added, like fair use for copyright, starting from well established principles means they aren't inventing everything from scratch.

US Supreme Court rules for Google over Oracle

Posted Apr 7, 2021 0:04 UTC (Wed) by bauermann (subscriber, #37575) [Link]

I thought it was important to mention that copyright isn't property because this imperfect analogy has been used in the past to argue for stronger copyright protection while avoiding to discuss any corresponding benefit to society.

It's an argument Lawrence Lessig made in the Free Culture book far better than I ever could. 🙂

US Supreme Court rules for Google over Oracle

Posted Apr 8, 2021 17:02 UTC (Thu) by smurf (subscriber, #17840) [Link]

No, assigning copyright to somebody else is not necessary by any means. There are jurisdictions (Germany for instance) where that simply is not possible. I create a work, I (or the company employing me for that purpose) hold the copyright; after I die, my heirs do. End of story.

So what happens instead? I sell an exclusive and perpetual license to exercise those rights to somebody else. Same effect as a copyright transfer but an entirely different legal theory behind it, which matters a lot e.g. when the work is translated to a new medium that didn't exist when the sale took place. Lawyers tend to have a lot of fun trying to guess the intent behind those contracts.

US Supreme Court rules for Google over Oracle

Posted Apr 6, 2021 9:18 UTC (Tue) by pebolle (guest, #35204) [Link] (12 responses)

> Copyright is a made-up concept [...]

As are property rights, contracts, corporations, permits, licenses, marriage or, I'd say, any legal concept. Some go back only a century or two, while other concepts go back thousands of years. And I'm sure there are (historic) societies that do not have one or more of the legal concepts we now take for granted. Or people advocating for their end in some societies.

Legal concepts are made up. So what?

US Supreme Court rules for Google over Oracle

Posted Apr 6, 2021 15:20 UTC (Tue) by Wol (subscriber, #4433) [Link] (3 responses)

> And I'm sure there are (historic) societies that do not have one or more of the legal concepts we now take for granted.

Time Immemorial?

Which is a real thing. The definition varies, but it is English Law that pre-dates the concept of a "Jury of one's Peers" - peers is capitalised because it means a Lord of the Realm.

So basically, "time immemorial" is stuff that predates either Magna Carta, or the accession of Henry III, whichever date you choose as they're both roughly the same.

Cheers,
Wol

US Supreme Court rules for Google over Oracle

Posted Apr 6, 2021 16:47 UTC (Tue) by amacater (subscriber, #790) [Link]

Strictly, 6th July 1189 - the accession date of Richard I. It' s a cut-off date: claims for possession of land reference that date - anything earlier can't be overturned, effectively. [Legal history appreciated here :) ]

US Supreme Court rules for Google over Oracle

Posted Apr 28, 2021 15:50 UTC (Wed) by nix (subscriber, #2304) [Link] (1 responses)

> The definition varies, but it is English Law that pre-dates the concept of a "Jury of one's Peers" - peers is capitalised because it means a Lord of the Realm.

Where does *this* come from? Peers is capitalized because nouns were frequently (and irregularly) capitalized in written text back then. It's got nothing to do with lordship, and juries were never composed entirely of peers of the realm (who are called that because they are distinct from *other sorts* of peers).

US Supreme Court rules for Google over Oracle

Posted Apr 28, 2021 22:25 UTC (Wed) by Wol (subscriber, #4433) [Link]

The Magna Carta guaranteed the right to "a trial by a jury of ones peers". But it only guaranteed it to the nobility, the Peers.

Basically, it was a reigning in of the absolute powers of the King, and making him formally answerable to the Baronage. This is the birth of Parliament and the House of Lords, I guess... the King could no longer sling a Lord he'd fallen out with into the brig without at least the permission of the other Lords.

All part of the everlastng political struggle between those in power, and those who want to be in power.

Cheers,
Wol

US Supreme Court rules for Google over Oracle

Posted Apr 7, 2021 0:16 UTC (Wed) by bauermann (subscriber, #37575) [Link] (6 responses)

I only have a very superficial understanding of law, but my understanding is that some legal concepts aren't considered to be made up, but rather a reflection of reality (e.g, natural rights IIUC).

Some people would put property in that category, though that is controversial. In any case, the fact that one concept is thousands of years old and another is a few centuries years old is IMHO relevant.

In any case, I just brought this up because conflating property with copyright is a strategy that has been used to argue for stronger copyright protections without bringing up the necessary discussion about the benefit such change should bring to society. Therefore it's important to be aware that it's an analogy with important flaws.

US Supreme Court rules for Google over Oracle

Posted Apr 7, 2021 14:49 UTC (Wed) by nim-nim (subscriber, #34454) [Link] (5 responses)

Property is 100% made up by whatever state you live in. Property is basically what the state is ready to defend with police and army, and what it wants to tax in return. In fact I’m pretty sure the earliest recorded property registers were actually tax registers.

Some states have been more honest about this all by claiming everything belonged to them and was just temporarily granted to inhabitants (most recently, the Soviets, but that is still the case for some kinds of “property” in some parts of the world, with foreign investors treating such grants as “property” because they effectively behave exactly the same way).

“Natural rights property” is another fiction invented by people that want to convince states they do not owe any taxes. It only works on very corrupt administrations.

US Supreme Court rules for Google over Oracle

Posted Apr 7, 2021 15:35 UTC (Wed) by Wol (subscriber, #4433) [Link] (3 responses)

> In fact I’m pretty sure the earliest recorded property registers were actually tax registers.

The Doomsday book, for example (1086).

(Spelt that way because, for the Saxon landowners it recorded, it WAS doomsday.)

Cheers,
Wol

US Supreme Court rules for Google over Oracle

Posted Apr 7, 2021 16:27 UTC (Wed) by micka (subscriber, #38720) [Link]

Well... That's actually pretty recent :)

US Supreme Court rules for Google over Oracle

Posted Apr 28, 2021 16:13 UTC (Wed) by nix (subscriber, #2304) [Link] (1 responses)

> (Spelt that way because, for the Saxon landowners it recorded, it WAS doomsday.)

Well, it was spelt "Domesday", but that meant the same thing. Wikipedia says (and my undergrad-level profs also told me) that this is from OE and Norse "doom" meaning "law, judgement". The implication is that this was a book of unalterable law: this suggests that the book was considered ancient uncontradictable canon of sorts, and unsurprisingly this term is first found centuries after the book itself was composed, in the 13th century. The books' compilers didn't call them that at all! The survey the books record was semi-informally known simply as the Great Survey (the first of a number of Great Surveys in English history), and the record as any of a number of things, most commonly simply as (in Latin) the "enrolling". i.e. it was named practically, for what it was, an enrolling of properties and households, not metaphorically.

The meaning "doom" as in "disaster" is many centuries newer. The OED says that while "doomsday" in the meaning of "the day of judgement" is ancient, the related expansion of the term "doom" is much newer: 16th--17th century, and so, probably, is the implication that doomsday is in any way disastrous. (I have seen older uses of "doom" to mean "disaster" than the OED cites, which I should probably pass on if I can track them down again, but there's only about 50 years in it, certainly not centuries.)

US Supreme Court rules for Google over Oracle

Posted Apr 28, 2021 22:29 UTC (Wed) by Wol (subscriber, #4433) [Link]

Yup, I know the normal spelling is Domesday. But the practical impact on the Saxons was that they went from being land-owners under Saxon law to vassal tenants under the Norman conquerors. Their lands were effectively seized and rented back.

Cheers,
Wol

US Supreme Court rules for Google over Oracle

Posted Apr 28, 2021 15:57 UTC (Wed) by nix (subscriber, #2304) [Link]

> Some states have been more honest about this all by claiming everything belonged to them and was just temporarily granted to inhabitants

The opposite ("allodial title") is *extremely* rare these days and generally grandfathered in where possible at all with no way to place anything new under that title, most likely because almost all modern states want the right not only to tax property but also to go and do things on what you consider your property in some rare circumstances (putting out fires, arresting criminals etc).

US Supreme Court rules for Google over Oracle

Posted Apr 28, 2021 15:49 UTC (Wed) by nix (subscriber, #2304) [Link]

Classic example: enforcement of the law in regard to things we would now consider the obvious preserve of the state like murder was a family matter in ancient Rome: the state did not get involved (except in the very rare case that the Emperor himself got interested) and it seems that matters like evidence were almost always much less important than the relative standing of the victim's family and the accused's. But things like what clothes you wore, or whether you lived in excessive luxury? That was a matter of state, and a serious one. (Though even there any role for anything like evidence was... marginal.)

The way societies are constructed is a social construct, obviously enough. The law is an aspect of the way societies are constructed, so it's a social construct. It sits on biological underpinnings shared with many other animals driving emotions governing things like perceived fairness, retribution, etc, but it is still a social construct.

Copyright != property

Posted Apr 10, 2021 20:36 UTC (Sat) by Max.Hyre (subscriber, #1054) [Link] (1 responses)

I was once in a movie theater which played the RIAA propaganda equating copying a song with smashing a car window to steal a CD. Afterwards someone actually shouted out ``It's not theft, it's copyright infringement.''

Copyright != property

Posted Apr 10, 2021 22:26 UTC (Sat) by Wol (subscriber, #4433) [Link]

Sounds like the fun we had with joyriders in the UK :-)

I believe theft is defined as "permanently depriving the owner of their property". Which copying a song most definitely does not.

Amd when joyriders nicked a car over here, I believe their defence council argued "it's not theft, they got their car back". So they had to bring in a new law of "TWOCing" - Taking WithOut Consent.

Cheers,
Wol