Linked by Thom Holwerda on Fri 13th Apr 2012 09:40 UTC
Legal "Oracle's case against Google has evolved primarily into a copyright infringement suit over the past several months, and with the full trial scheduled to begin this coming Monday, the court is making an effort to get down to the nuts and bolts of copyright law. The judge issued an order last week requiring that both Google and Oracle provide their respective positions on a fundamental issue in the case: 'Each side shall take a firm yes or no position on whether computer programming languages are copyrightable'." Seems like an easy enough answer to me, especially since Oracle's example doesn't hold up at all - Oracle points to Klingon's custom glyphs to illustrate that a language can fall under copyright, but unlike Klingon, a programming language uses standard glyphs we all use every day. Arguing you can copyright that is borderline psychotic, and opens up a whole can of worms.
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Java is a Fictional Language
by jburnett on Fri 13th Apr 2012 18:14 UTC
jburnett
Member since:
2012-03-29

I understand your outrage, I really do. I used to feel the same way. Then I went to law school. That is where I learned that lawyers, for the most part, do not "stow away their personal beliefs for their clients' needs." Rather, they believe very strongly that they should, like scientists, question everything, even their own personal beliefs.

Often, when you look at the bigger picture, you realize that things you believe with intense ferocity, are not what you think they are. I believe that this issue is one of those cases. As a programmer I am shocked that somebody would try to claim copyright over a language that I have used for years and love. At first, I was angry at Oracle for even making the argument for copyright of a language. Then I thought about it some more. While I still dislike the terms for IP protection, like pretty much everybody else here, I have to begrudgingly admit that protection should apply in this case.

I will try to address all the issues my original comment seemed to spark. If I miss something, please call me on it. I'm not trying to ignore inconvenient arguments.

Prior Art
First, and probably foremost on everybody's mind, prior art. A lot of the comments I read on this issue are basically arguing that you cannot copyright Java because it is built on so much prior art. Prior art is a non-factor in this case.

A really good IP attorney I met told me, and I'm going to paraphrase the thought a bit, that prior art is the first defense of the legally clueless. In copyright it only matters if the person who holds the "prior art," which isn't even the right term, is the person suing. In this case, Oracle has the prior art. Google copied Java. Google has the derivative work, if it can even be called derivative because it copies so exactly.

If this was a patent case, prior art might matter. But it isn't a patent case. And if it were, a good lawyer would argue prior art last.

Now, if the copyright owners of B, C, C++, etc wanted to sue Oracle for making an unauthorized derivative work (copyright infringement), they might have a case. It would depend on the terms under which those languages were distributed. But they could do it.

Take, for example, "Romeo and Juliet." There are probably thousands of stories that retell this really old story that was itself probably a retelling of yet another story. I didn't study literature, so I don't know. Now, could it reasonably be argued that the writer of "West Side Story" does not deserve copyright because the story was based heavily on the prior art of Romeo and Juliet. You might not think so, but the courts and the law certainly do.

Java, like "West Side Story" adds to what came before. It was obviously different and probably better because so many people adopted it. Which leads to the next argument.


Sun open sourced Java and put the API through a standards body
This argument is very fact specific. It will greatly depend on the open source license they used and the promises they made to the standards body. Standards bodies have poor track records in regards to making their standards copyright/patent free/unencumbered.

This may be Google's strongest argument, but I do not know enough specific facts to address it. So I will continue with the issue that seems to be irking people the most.


You cannot copyright/patent natural language or mathematical ideas
Copyright protects expression of ideas, not the ideas themselves. Patents protect original ideas. There was no mention of patents being involved, so they do not merit discussion. However, Java is a very specific, written, expression of an idea. It has to be very specific, or it would not work.

Having taken courses in programming language design, I have written my own custom language. It did not spring out of thin air. I took ideas from other languages and put them together for my own grammar. It sucked, but it was mine. Nobody would want to use it, but it was mine. Many other people took the same ideas and created (probably) the same grammar without ever looking at mine. That was theirs, even if it was identical.

However, if another student had copied my floppy disk without my permission (yeah, we still used those back then) then they would be using my language, not theirs. Even new adjunct professors understand this simple concept and would, hopefully, fail the thief and not me.

It was a simple concept, the grammar was the assignment, everybody had to create their own. If it makes sense in the classroom why do people want to look the other way when corporations do it. The Java grammar belongs to Oracle. If they don't want people to copy it, and they didn't let people copy it, then they have that right.

So what about the APIs. One comment here mentioned IO and Math. They agreed that the implementations were copyrightable, but not the API. Well, what about the designer who sat down and wrote the API. Software engineers spend more of their time writing the APIs than they do implementing them. There are even whole languages written just to write APIs.

Not how many times "written" was just used. You write a language, even one to write an API. That sounds like an implementation of an idea, doesn't it?

So, if the grammar and the API specs are protected as written works, what about their implementation. Google does not publish the grammar or the API specs. Assume that they implemented their own version of the language and did not directly copy any code.

Under copyright, it does not matter. This is called a derivative work. Google gets copyright in their implementation of the language (assuming it is different enough to be a derivative work). However, if the derivative work is unauthorized, then it is still infringing. That is not to say that there fact specific arguments on fair use, authorized/licensed use, public domain, etc. Those arguments are where this case needs to be argued.

What about Freedom of Speech?
I'm sorry, but I just don't see what Freedom of Speech has to do in this case. No person speaks Java, only machines. Extending Constitutional protections to machines is a debate for science fiction and not really applicable at the current time.

Conclusion
A programming languages is a very specific, written expression of an idea. The implementation of that expression is as protected as the implementation of your application. One could argue that losing protection for programming languages could eventually cost protection for all applications. After all, what is Microsoft Word or Adobe Photoshop but a way of expressing yourself

Would any real software developer, who makes their money writing code, really want to lose copyright completely. Maybe they would. That is definitely worth debate. But the courts are not the proper place for that debate. Societies need to make that determination for themselves and make it part of their law. Otherwise the law means nothing.

Bottom line, from a programmers perspective, Java is not a native language. It isn't even the only option to do what it does. As has been pointed out, there are many other options. So, instead of whining about evil corporations, get off your butt and learn another language that is more free and open. Thank you Mr. Stallman. People didn't understand before, but they are starting to get it now.

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