The CopyKat - easy on a Wednesday

It takes quite a number of hands to create a motion picture - camera operators, set designers, lighting directors, the director and the cinematographer to name but a few. Quick on the heels of the en banc decision by the majority of the 9th Circuit in the 'Innocence of the Muslims' case which held on further appeal that the contribution of an actor cannot be copyrightable because "defining a 'work' based upon 'some minimal level of creativity or originality' ... would be too broad and indeterminate to be useful",  the 2nd Circuit Court of Appeals has now ruled that individual contributions can't be recognized as works of authorship insofar as becoming independently copyrightable. The opinion from Circuit Judge Robert Sack on 'Heads Up' director Alex Merkin's claim says "We have never decided whether an individualʹs non‐de minimis creative contributions to a work in which copyright protection subsists, such as a film, fall within the subject matter of copyright, when the contributions are inseparable from the work and the individual is neither the sole nor a joint author of the work and is not a party to a work‐for‐hire arrangement," he writes. "We answer that question in the negative on the facts of the present case, finding that the Copyright Actʹs terms, structure, and history support the conclusion that Merkinʹs contributions to the film do not themselves constitute a 'work of authorship' amenable to copyright protection." More here.

The Supreme Court has declined to hear the case between Oracle v. Google, sending the long-running case back to a lower court where Google will have to argue that it made fair use of Oracle's copyrighted APIs. A ruling in favour of Oracle could give some technology firms "unprecedented and dangerous power" over developers by making it substantially more difficult for upstarts to create new software according to the Electronic Frontier Foundation says - unless of course fair use laws so turn out to protect the use of APIs.

Jacobus Rentmeester has failed in his claims of (i) copyright infringement; (ii) vicarious copyright infringement; (iii) contributory copyright infringement; and (iv) a breach of the Digital Millennium Copyright Act (DMCA) against Nike, which stem from his iconic picture
of basketball star Michael Jordan in his Olympic warm-ups in 1984 for an issue of Life Magazine. The case is Rentmeester  v Nike Inc., (No.3 : 15-cv-00113-MO). In his decision, District Judge Mosman granted Nike Inc.’s motion to dismiss Rentmeester’s claims - all of the details on the IPKat here.

Torrentfreak reports that a court in Nanterre in France has ruled that a magazine publisher violated French copyright law by running an article offering some top tips on how to access illegal sources of music and movie content online, including the 'low down' on the best torrent clients, and guidance that Google is the pirate's friends because "with some clever keywords and in a handful of clicks you will fill your hard drives with joy and laughter". The publisher of  computer magazine Téléchargement was fined €10,000. Torrentfreak say that under French law it’s forbidden to “knowingly encourage” the use of software that’s clearly meant to infringe copyrights, with a maximum prison sentence of three years and a €300,000 fine. (I am sure the FrenchKat an correct me if this is wrong!).  SCPP took action after the magazine's cover featured a pirate skull and advertised “the best software and websites to download for free.”

And finally, LA-based domain registrar Namecheap has been ordered to hand over the personal details of one of its customers, a person suspected of being involved in the ongoing attempts to keep Grooveshark - or at least a music service using that name - online. The action was brought by the Recording Industry Association of America (RIAA).

The CopyKat - breaking news on Oracle's victory over Google in the API spat

Oracle Corp has won an important victory against Google Inc when the U.S. appeals court decided Oracle could copyright parts of the Java programming language, which Google used to design its Android smartphone operating system. In June 2012 U.S. District Judge William Alsup ruled that the Java APIs replicated by Google were not subject to copyright protection and were free for Google to use although the Judge said "This order does not hold that Java API packages are free for all to use without license" adding "It does not hold that the structure, sequence, and organization of all computer programs may be stolen. Rather, it holds on the specific facts of this case, the particular elements replicated by Google were free for all to use under the Copyright Act." 

The three-judge U.S. Court of Appeals for the Federal Circuit in Washington has reversed this decision with the court saying "We conclude that a set of commands to instruct a computer to carry out desired operations may contain expression that is eligible for copyright protection". 

The Court of Appeals recalled what Circuit Judge Boudin said in the 1995 Lotus decision: “Applying copyright law to computer programs is like assembling a jigsaw puzzle whose pieces do not quite fit.”


The Court said that the district court had failed to distinguish between the threshold question of what is copyrightable -  which presents a low bar - and the scope of conduct that constitutes infringing activity. The court had also erred by importing fair use principles, including interoperability concerns, into its copyrightability analysis.

The appellate court ordered further proceedings before Alsup to decide whether Google's actions were protected under fair use saying "Because we conclude that the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection, we reverse the district court’s copyrightability determination with instructions to reinstate the jury’s infringement finding as to the 37 Java packages. Because the jury deadlocked on fair use, we remand for further consideration of Google’s fair use defense in light of this decision. With respect to Google’s cross-appeal, we affirm the district court’s decisions: 1) granting Oracle’s motion for JMOL (judgment as a matter of law)  as to the eight decompiled Java files that Google copied into Android; and (2) denying Google’s motion for JMOL with respect to the rangeCheck function. Accordingly, we affirm-in-part, reverse-in-part, and remand for further proceedings. ChillingEffects commented that the case "may have significant consequences for cloud computing, software interoperability and innovation in general"  and Google commented “We’re disappointed by this ruling, which sets a damaging precedent for computer science and software development, and are considering our options.”  The case in the U.S. Court of Appeals for the Federal Circuit is Oracle America Inc vs. Google Inc, 2013-1021, decided 9th May 2014 - a link to download the judgment can be found here http://recode.net/2014/05/09/oracle-wins-appeal-in-java-copyright-fight-with-google/. 

Eleonora has also blogged about this case over on the IPKat and it's well worth a read .

And U.S. District Judge Katherine Forrest in Manhattan has ordered a division of Royal Bank of Scotland Group Plc to stop using a key piece of software used for it's trade finance business after finding the bank liable for copyright infringement. The judge entered a permanent injunction requiring RBS's ABN Amro unit to stop using the BankTrade software within a year, and not to use it to process new trade finance transactions received 60 days from now saying ""ABN may not continue benefiting from its blatant and ongoing infringement simply because stopping that infringement will be disruptive to its business" in a case brought by which produces the software and had sought the injunction

In Vietnam, Tri Viet (First News) Publishing House has failed in a copyright infringement case against private printing centre, Huy Thi,  and faces a VND26-million (US$1,200) legal bill. The court in Thanh Tri District stated that Tri Viet has not suffered any losses from the copyright violation: Whilst three years ago the Huy Thi printing centre was found to have illegally printed nearly 10,000 copies of the books, Quang Ganh Lo Di Ma Vui Song (How to Stop Worrying and Start Living) and 7 Thoi Quen Cua Ban Tre Thanh Dat (The 7 Habits of Highly Effective Teens), both of which were published by Tri Viet and indeed Huy Thi were fined VND12 million (US$600) for that -  the illegally printed books were seized and destroyed in 2011 before they could be released in the market so the court found that there was no merit in Tri Viet's claim for VND500 million (US$24,000) for violation of copyrights, plus VND50 million (US$2,400) for expenditure incurred on recalling the "fake" books - and nor had the Tri Viet publishing house provided any documents to the court proving  economic losses incurred due to copyright infringement by Huy Thi. An appeal is planned with a representative of Tri Viet saying "We need to do that for the honour and justice of writers and publishers". 


As the average person has illegally downloaded approximately 2,900 music files and 90 movies ... and the Huffington Post has rather amusingly estimated that every single man, woman and child on earth now owes the combined music and movie industries in the order of $67 million. Each. This is based on 'average' jury awards of $22,500 per song for copyright violations in the US: That is each person. Not cumulatively. Cumulatively, it would be $470,925,000,000,000,000,000 -- which is also 6.63 times the GDP of the entire planet. 

In Sweden a new study on the effects of the country's anti-piracy law shows that the legislation initially pushed up music sales by 36 percent - and that internet traffic in the country dropped significantly. However, whilst the results suggest that the law initially had the desired effect (well, desired by the content industries),  the researchers also note this didn't last long. Economists at Uppsala University in Sweden say "We find that the reform decreased Internet traffic by 16% and increased music sales by 36% during the first six months. Pirated music therefore seems to be a strong substitute to legal music" but added that the controversial law only had limited results saying “The deterrent effect decreased quickly, possibly because of the few and slow legal processes. Law enforcement through convictions therefore seems to be a necessary ingredient for the long-run success of a copyright protection law”. 

Oracle v Google: EFF warn of threats to innovation

The Electronic Frontier Foundation has joined the ongoing legal battle between Oracle and Google over whether APIs (Application Programming Interface) should or shouldn't be copyrightable. Oracle had accused Google of infringing the copyright on its Java APIs in the development of Google’s Android OS. Google denies any wrongdoing and has argued, in part, that software APIs cannot be protected under U.S. copyright law.

The campaign group has now gathered together 32 computer scientists and tech industry leaders in an amicus brief to the U.S. Court of Appeals for the Federal Circuit. The brief is signed by tech leaders including MS-DOS author Tim Paterson and ARPANET developer Larry Roberts, who support the position that APIs should not be copyrightable because they are critical to spurring innovation and inter-operability in the tech world. Other signatories include Brendan Eich, inventor of JavaScript and the CTO of Mozilla; Michael Tiemann, author of the GNU C++ compiler and an executive at Red Hat; and Samba developer Andrew Tridgell

"The law is already clear that computer languages are mediums of communication and aren't copyrightable. Even though copyright might cover what was creatively written in the language, it doesn't cover functions that must all be written in the same way," EFF staff attorney Julie Samuels said in a statement. "APIs are similarly functional -- they are specifications allowing programs to communicate with each other." In our May 2012 Blog we noted that  EFF was concerned about any precedent that could be set by copyrighting any type of API when the EFF said "Treating APIs as copyrightable would have a profound negative impact on interoperability, and, therefore, innovation". 

Oracle originally sued Google for copyright infringement related to Google's use of 37 Java APIs used on its Android mobile operating system. The case went to trial last May. During the trial, Google argued it used the Java APIs because the Java programming language is free to use, and the APIs are required to use the language. Oracle argued that Google knowingly used the APIs without a license from Sun Microsystems, which was bought by Oracle in 2010.

The jury handed down a verdict that partially helped Oracle when they found that Google had infringed the structure, sequence, and organization of Java's language, but offered no opinion on the matter of fair use. Judge William Alsup then ruled that the APIs were non-copyrightable, which led to the dismissal of Oracle's copyright infringement claim. Judge Alsup said "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical." The ruling found that the structure Oracle was claiming was not copyrightable under section 102(b) of the Copyright Act because it was a "system or method of operation."

Oracle filed an appeal to the judge's ruling in October 2012. In its appeals brief, the company said Google's use of Java in Android was "decidedly unfair" and that copyright is designed to protect all kinds of works, including "a short poem or even a Chinese menu," but what it created in Java was "vastly more original, creative, and labor-intensive." 

But the EFF is adamant that copyright protection should not be extended: "Without the compatibility enabled by APIs that are open, we would not have the vibrant computer and Internet environment we experience today, with new products and services routinely changing the way we see and interact with the world," EFF Fellow Michael Barclay said in a statement adding "APIs that are open spur the development of software, creating programs that the interface's original creator might never have envisioned" and the brief argues that the spread of affordable PCs was made possible because IBM held no copyright on its BIOS system, allowing competitors such as Compaq and Phoenix to create their own BIOS implementations and build PC clones. The open nature of APIs was also essential to the development of the Unix OS, the C programming language and the open protocols on the Internet, the brief says.  ”Should the court reverse Judge Alsup’s well-reasoned opinion, it will hand Oracle and others the ability to monopolize any and all uses of systems that share their APIs. API creators would have veto power over any developer who wants to create a compatible program,” the brief states.

You can read the complete 36-page testimony by clicking on https://www.eff.org/document/amicus-brief-computer-scientists

More comment at  http://www.pcworld.com/article/2040360/computer-scientists-oppose-oracles-bid-to-copyright-java-apis.html

Oracle not happy with API decision

Following on from our earlier blog on the Google v Oracle battle over whether or not APIs could be copyrighted, Judge William Alsup of the U.S District Court has now held that the 37 APIs in question in the case are NOT protected by copyright. 


 An API can be defined as  "An application programming interface is a specification intended to be used as an interface by software components to communicate with each other. An API may include specifications for routines, data, structures, object classes". In 2010, Oracle bought Sun Microsystems, which had developed Java. When it implemented the Android OS, Google wrote its own version of Java - but in order to allow developers to write their own programs for Android, Google relied on Java’s APIs." Oracle asserted a copyright in their APIs much to the consternation of  web lobby groups such as the EFF who  said that "Treating APIs as copyrightable would have a profound negative impact on interoperability, and, therefore, innovation".

Judge Alsup said "So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical. Under the rules of Java, they must be identical to declare a method specifying the same functionality - even when the implementation is different. When there is only one way to express an idea or function, then everyone is free to do so and no one can monopolize that expression. And, while the Android method and class names could have been different from the names of their counterparts in Java and still have worked, copyright protection never extends to names or short phrases as a matter of law." 


However CNET add that the case seems limited in its scope and the court seemed very keen not to set a broad precedent, with Judge Alsup saying 


"This order does not hold that Java API packages are free for all to use without license" adding "It does not hold that the structure, sequence, and organization of all computer programs may be stolen. Rather, it holds on the specific facts of this case, the particular elements replicated by Google were free for all to use under the Copyright Act."


Google applauded the decision saying "The court's decision upholds the principle that open and interoperable computer languages form an essential basis for software development. It's a good day for collaboration and innovation." 


More on CNET here http://news.cnet.com/8301-13578_3-57444928-38/judge-says-37-oracle-apis-are-not-copyrightable/?tag=nl.e496 and the full judgment can be found here http://www.scribd.com/doc/95478789/Oracle-v-Google-Judge-rules-APIs-not-copyrightable

In a statement Oracle said that they will appeal the decision saying that a 'licence has always been required for an implementation of the Java specification".

API battle for Google

The Electronic Frontiers Foundation have reported on the legal debates surrounding the action brought by Oracle against Google for the use of Oracle's APIs, whether copyright can subsist in those API's and if it did, could Google claim fair use.

Before we go any further - a brief definition of APIs "An application programming interface (API) is a specification intended to be used as an interface by software components to communicate with each other. An API may include specifications for routines, data, structures, object classes. In 2010, Oracle bought Sun Microsystems, which developed Java. When it implemented the Android OS, Google wrote its own version of Java -but in order to allow developers to write their own programs for Android, Google relied on Java’s APIs."

This is what the EFF have to say:

"Here’s the problem: Treating APIs as copyrightable would have a profound negative impact on interoperability, and, therefore, innovation. APIs are ubiquitous and fundamental to all kinds of program development. It is safe to say that all software developers use APIs to make their software work with other software. For example, the developers of an application like Firefox use APIs to make their application work with various OSes by asking the OS to do things like make network connections, open files, and display windows on the screen. Allowing a party to assert control over APIs means that a party can determine who can make compatible and interoperable software, an idea that is anathema to those who create the software we rely on everyday. Put clearly, the developer of a platform should not be able to control add-on software development for that platform. 

Take, for example, a free and open source project like Samba, which runs the shared folders and network drives in millions of organizations. If Samba could be held to have infringed the Microsoft’s copyright in its SMB protocol and API, with which it inter-operates, it could find itself on the hook for astronomical damages or facing an injunction requiring that it stop providing its API and related services, leaving users to fend for themselves.

Another example is the AOL instant messaging program, which used a proprietary API. AOL tried to prevent people from making alternative IM programs that could speak to AOL's users. Despite that, others successfully built their own implementations of the API from the client's side. If copyright had given AOL a weapon to prevent interoperability by its competitors, the outcome for the public would have been unfortunate.

Setting aside the practical consequences, there’s a perfectly good legal reason not to treat APIs as copyrightable material: they are purely functional. The law is already clear that copyright cannot cover programming languages, which are merely mediums for creation (instead, copyright may potentially cover what one creatively writes in that language).  Indeed, the European Court of Justice came to just that decision last week (Ironically enough, when Sun Microsystems was an independent company, one of its lawyers wrote amicus briefs arguing that interoperability concerns should limit copyright protection for computer programs.) 

Improvidently granting copyright protection to functional APIs would allow companies to dangerously hold up important interoperability functionality that developers and users rely on everyday.  Let’s hope the judge agrees."

https://www.eff.org/deeplinks/2012/05/oracle-v-google-and-dangerous-implications-treating-apis-copyrightable

SAS Institute Inc.  v World Programming Limited : CJEU: "to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development".

Snow copyright infringement?

Earlier this year it was impossible to escape from the snow. Not only was it lying on the ground outside or falling from the heavens above but websites and newspapers were full of photos of the stuff which illustrated in equal measure the picturesque nature of snow, the fun millions of people had in it whilst they bunked off from work (I mean, were snowed in) and the annoyance it caused to the poor souls who got trapped in or had to abandon their cars.

Peter Zabulis took a snow-related photo of the picturesque variety. On 3rd January he uploaded the picture, of tyre tracks etched across a snow-covered field, onto Flickr and tagged it as having "all rights reserved". You can see it here.

Imagine Peter's surprise when, on 5th January he visited the Independent's website and found his photo being used in a section showing photos of snowbound Britain, without his consent. He complained to the paper and since he didn't initially get the answer he desired, he put all of the correspondence between the paper and himself on a separate Flickr page entitled "Breach of Copyright - the Independent".

The correspondence makes interesting reading. The Independent stated that it had not copied the photo. Instead, it had taken a photostream from Flickr and incorporated it into the Independent's website via an API (an application programming interface, more about these here). Effectively the Independent had provided its readers with a sophisticated link to Flickr which, rather than making the reader leave the Independent's website to view the photos, enabled readers to view the Flickr photos from the Flickr website whilst remaining on the Independent's website.

The Independent's initial reply signed off with "We did not take the photo from Flickr, nor present it as anything other than as it is shown there. I do not consider, therefore, that any copyright has been breached or any payment due". However, the matter was eventually resolved with payment being made by the Independent to Peter.

Whilst it does seem likely that the paper breached the Flickr terms of use and shouldn't have used the photo without Peter's consent, 1709 is interested to know whether any of its readers think there was an infringement of Peter's copyright. No copy was made, but had the Independent's website communicated the work to the public?

If there was no infringement of copyright it seems to 1709 that a potential loophole may exist here. The implication would be that a website could incorporate works in which copyright exists from another website via an API without permission from the copyright owner, without infringing any copyright. In some cases this may not be a problem (for example where the owner of the works is happy for them to be distributed as widely as possible), but if the "incorporating" website is generating (for example) ad revenue the "incorporated website" may have objections and may wish to enforce its rights.

1709 is especially interested in this subject because last night it was told (by a reputable source) that the three initials "API" were going to be very important in terms of Internet developments over the next few years, so one could expect issues such as this one to become more widespread.

This story was flagged to 1709 in yesterday's Guardian, in an article about the merits of the current copyright regime. You can read it here (note that the Guardian was careful not to use a copy of Peter's photo) and make your own mind up as to whether you agree with the views of the author of that piece.

One can only imagine that appropriation and use of photos which are in the public domain is a fairly common issue nowadays. In fact, the first comment this morning under the story in the Guardian is from a blogger who had his photos used (without consent) by amongst others the Daily Record. You can read more here.

ps photo is the author's own - all rights reserved!