Oracle and Google Spar Over Whether Programming Languages Can Be Copyrighted 316
Posted
by
Soulskill
from the makes-perfect-sense-minus-the-sense dept.
from the makes-perfect-sense-minus-the-sense dept.
pcritter writes "With the Oracle v. Google trial date set for next Monday, the Judge has asked Google and Oracle to take a position on whether a programming language is copyrightable. This presumably relates to whether Google violated copyright by using a variant of the Java language and its APIs in the Android framework. Oracle, who thinks it can be, has used J.R.R. Tolkein's Elvish language as an examples (PDF) of a language that can be copyrighted. Google disagrees (PDF)."
Sure. (Score:5, Insightful)
What About Machine Language and Assembly? (Score:5, Insightful)
Derivative work of C/C++ (Score:5, Insightful)
Would Oracle's PL/SQL Suffer the Same? (Score:5, Insightful)
Oracle doesn't care about that stuff. They will say just about anything so that Larry Ellison can buy another yacht.
Uhhh well, they should. I mean Oracle's PL/SQL [wikipedia.org] is an extension of SQL which, would be copyrighted by someone from the long long ago. And if that person wanted to, they could basically say "Yeah, you know that language that your bread and butter runs on? It's infringing on my copyrights so you owe me ... gosh I don't know ... a hundred billion trillion dollars?"
...
And, like every other language, PL/SQL has to be turned into machine language at some point
goto: Elbereth ? (Score:5, Insightful)
Oracle, who thinks it can be, has used J.R.R. Tolkein's Elvish language as an example of a language that can be copyrighted.
Sure, but I wasn't aware that was a *programming* language.
Re:Sure. (Score:5, Insightful)
Being open source does not mean it isn't copyrighted...
Oracle silliness (Score:5, Insightful)
I suppose lawyers have an ethical duty to argue every point that reasonably could help their client, but this is silly. I really like the comments in a couple of the footnotes in Google's response:
Similarly, fictional languages such as Na’vi and Dothraki cannot be copyrighted. While the film Avatar and the television series Game of Thrones are copyrightable (including the portions in the fictional Na’vi and Dothraki languages), and while, for example, a dictionary or grammar textbook for either language would be copyrightable, the languages themselves are not. Oracle asks why copyright should not protect such languages, see Oracle 4/5/12 Br. [Dkt. 859] at 9; the answer is that Section 102(b) says that they are not protected. Moreover, there is no reason to believe that allowing copyright owners to control who can express themselves in these languages would further the aims of copyright law.
Umm, duh. Do they really want to argue that, say, stating "Your mother is ugly" or some other random sentence in, say, Dothraki is a public performance of a copyrighted work? That's what it would have to be if the language itself were copyrightable.
Even clearer, though:
Oracle also argues that a computer language can be “original, text-based, and capable of fixation,” and thus that it must be copyrightable. See Oracle 4/5/12 Br. [Dkt. 859] at 9. First, Section 102(b) bars copyright protection for “original works of authorship” that fall within its enumerated classes of exclusion. See 17 U.S.C. 102(b). Thus, the fact that a system is original, text-based and fixed does not mean that Section 102(b) does not apply. Second, a language cannot be fixed. Certainly, a description of a language (e.g., a specification) can be fixed. A computer program written using the language (e.g., the Gmail application on Android phones) or an implementation of a language (e.g., a compiler or interpreter) can be fixed. But none of those things is “the language,” any more than a dictionary “is” English, Das Boot “is” German, or a C compiler “is” the C programming language. See Baker, 101 U.S. at 102 (“But' there is a clear distinction between the book, as such, and the art which it is intended to illustrate. The mere statement of the proposition is so evident, that it requires hardly any argument to support it.”); cf. René Magritte, La trahison des images.
Exactly. How can you write down a "language"? You can describe it. You can list the allowable words and explain how they can and cannot be put together, but such a description isn't a language. You can use it. You can create prose, poetry, or, computer programs with it, expressing and fixing your own ideas in the constructs provided by the language, but an expression in a language isn't the language.
A language is about as pure an abstract idea as I can imagine, and ideas are not copyrightable, only expressions.
(Disclaimer: I work for Google, but have nothing to do with any of this Java folderol, other than using the language occasionally. I'm a programmer but not a language expert and would not be qualified to offer expert testimony on this topic, even if I were asked to, which I haven't been. Other than the quotes, the above is my own opinions, nothing more. In this case it appears that they align closely with Google's officially-stated opinions, however!)
Interesting question for the judge to ask (Score:4, Insightful)
I have to admit, I'm impressed with the judge's question. I'd agree that this is really what's at the heart of the matter, and I'm glad that the judge is asking it. It certainly seems like he's taken the time to do his homework into programming languages and computing.
If Your Language Can Be Copyrighted (Score:5, Insightful)
What about the language should be considered copyrightable? The keywords? Because Java looks a lot like many other languages. Perhaps the creators of those languages should sue Oracle for Copyright Infringement, then. Oracle's class and function layout looks a LOT like C and C++.
Is it the standard library? Would a clean room implementation of a published API be considered copyright infringement? I think there are precedents that it would not, at least going back to the IBM PC BIOS reverse-engineering.
Is it the idea of object orientation? That was around long before Sun released Java. I have a LISP textbook I got in the '80s that showed a lisp program doing object-oriented kinds of things with lisp data structures.
Attempting to copyright any of these things would run you afoul of the people who actually invented them. In theory you could patent aspects of your language (And they probably did) but doesn't last nearly as long as copyright would.
This case suddenly became a lot more important (Score:5, Insightful)
And in one fel swoop, this case has gone from simple money grabbing to downright surreal. To decide whether a language itself can be copyright-able is going to be incredibly significant, regardless of which way the final decision goes, and I'm believe it was unwise for Oracle to even raise this issue.
If a programming language cannot be copyrighted, then their whole argument goes down the tubes and they can potentially lose a lot more than just this lawsuit. They could conceivably lose control of java.
If a programming language CAN be copyrighted, I expect to see a flurry of lawsuits as different language authors start suing one another for "stealing" parts of "their" language. The vast majority, if not all, of java syntax is directly lifted from other languages. There is absolutely nothing unique about Java's grammar.
I am going to be very interested now in the outcome of this case.
Re:Would Oracle's PL/SQL Suffer the Same? (Score:4, Insightful)
That someone would be...oh... IBM.
Re:Oracle silliness (Score:5, Insightful)
Derivative Works? (Score:4, Insightful)
Copyright includes the notion of derivative works. Java is an excellent example of a derivative work, borrowing most of its core syntax from C. Oracle is effectively proposing that Dennis Ritchie's estate owns a huge swath of the language space; Objective C, ECMAScript, Java, C++, C# -- a big chunk of commercial programming is done in languages that are not even distant derivations, but nearly direct copies.
Re:What is Java? (Score:5, Insightful)
An interesting argument, there are others that are perhaps better-suited to the courtroom. Java is an API, the implementation is in the JVM and not the language. APIs are not automatically copyright, since they are a meta-description. The -implementation- of those APIs is copyright, because it is a specific case. It's the same reason that a dictionary can be copyright but the words within it cannot.
Sun successfully argued in court that to call something Java it has to implement the Java API. That's fair enough. It would be deceptive if you implemented Basic and called it C and it would be maliciously deceptive if you did so for the purpose of damaging C (whether or not it had much impact in the end), so Microsoft's deliberate attempt to destroy Java by violating the standards was definitely in the wrong and enforcing those standards in court was an impressive feat by Sun.
Sun did NOT argue Microsoft could not implement Java, merely that if they wrote something they promoted as Java then it damn well should be Java.
Oracle's argument is significantly different. The enforcement of a standard by trademark is very different from the enforcement of using a specific implementation by saying that the standard is the work.
I can respect the former. I would have no difficulty with Oracle arguing that all trademarks and licenses involving Java require adherence to the official standard, that said licenses stipulate that there should be no fragmentation of that standard as a condition of use, and that the Android implementation cannot violate the licenses involved (for the trademarks or anything else) as per the Microsoft case.
I cannot, however, respect the idea that the standard IS the implementation. It patently isn't (pun not intended), since the standard implements nothing. To allow that argument would be extremely dangerous, as it would mean that Oracle could circumvent all analysis on the legality of patents on intangibles like business methods by simply claiming they're copyright instead. Indeed, because of international copyright agreements, it would mean that things which are NOT protected (for good reason) in the EU would suddenly become protected despite contrary rulings by the EU's courts. ie: it would allow Oracle to impose a law on Europe that Europe has rejected as unlawful. Complain about the EU being undemocratic all you like, but I sure as hell didn't elect Oracle as president of anything.
Re:What About Machine Language and Assembly? (Score:5, Insightful)
Not every creative product is copyrightable. For example, algorithms are often a creative product, but they are not copyrightable (they may be patentable, but that's something different). Of course a specific implementation of an algorithm can (and usually will) be copyrighted.
Programming languages are more like algorithms than like programs. They correspond not to a song, but to the note system in which the music of the song may be written, and the natural language in which the text of the song is written. A completely different thing.
Which makes it an idea, not an expression of an idea. Because the expression of an idea has no rules, it is a specific combination of symbols, sounds, graphic elements etc. following (or sometimes not following) certain rules.
No. A specific implementation is an expression of the idea. The language itself cannot be an expression because it has no form. There is no way to write down a programming language, or to perform it. You can describe a programming language (either in the form of a specification, or in the form of a compiler/interpreter implementation), and those descriptions are of course copyrightable. But there is no way you can write down the language just in the same way you cannot write down an idea, but only a description of an idea (or the implementation of it, if it is an implementable idea).
Re:My ass (Score:4, Insightful)
And who says Tolkein's Elvish is copyrighted anyway? His description of it could be copyrighted, sure, but that's not the same as copyrighting the language itself. Don't tell me some dumbass judge granted an injunction on other people writing elvish grammar books...
Re:Specifications themselves are allegedly copyrig (Score:5, Insightful)
But the specification is not the language. The specification is a description of the language, but that's not the same as the language itself. Anybody else is free to write their own specification that's functionally equivalent but described differently.
Of course, I'd argue that it's unreasonable and unethical to charge for access to an official standard (in the same way it would be unethical to charge for access to the text of a law), but that's a different discussion.
Re:Sure. (Score:5, Insightful)
Copyright is automatic in US law for anything that is a copyrightable work in US law. The only question is whether a programming language, as such, is a copyrightable work -- if it is, every programming language is copyrighted at the instant it is first created (a work being "created", in US copyright law, "when it is fixed in a copy or phonorecord for the first time" -- 17 USC Sec. 101.)
Of course, the fact that the language -- as opposed to a description or implementation of the language -- is an abstraction that cannot be set in a fixed form makes it impossible for it to be "created" as defined in copyright law, but also makes it outside the scope of what is subject to copyright in the first place.
If programming languages were copyrightable works, then somebody has owned each of those languages from the moment they were created, even if, to date, they've been fairly lax in enforcing their rights against others who use the languages without permission, either directly or by creating derivative languages of their own.
(If the courts were to accept Oracle's position, I suspect that a lot of that laxness would end swiftly.)