Oracle v Google is Everything that’s Wrong with Copyright

This week, the Oracle v Google trial came to a close, with a jury finding that Google’s use of Oracle’s Java API names was fair use.  This is, of course, not the end, as Oracle has vowed to appeal the decision.

The outcome is monumental, but only because the courts have previously erred significantly and ruled that APIs are copyrightable at all.  The Supreme Court had refused certiori to examine that ruling of an Appellate court, which in turn was a reversal of a District court decision (EFF has all the details).  Interestingly, this most recent case was heard under the original judge, so it’s quite possible the Appellate Court will reverse again.  I think it’s crazy to suggest that API names are even copyrightable, but given that they’ve been ruled as such, I can’t see how use of APIs isn’t fair use.

Google didn’t copy Oracle’s code; they rewrote it themselves, but used the same name for the code functions, and then packaged it into a much better product than anything Oracle had created.  And it’s not like this negatively impacted Java’s market viability (contrary to what Oracle claims); Android likely saved Java from becoming a defunct language used only in big enterprise environments.  Younger aspiring developers want to program in languages for apps and new web technologies like Ruby, Node, Swift, and even Python. But the only new reason to know Java is because Android exists; if Android had picked Python, that’s what everyone would be learning to make Android apps. It’s ridiculous.

But more fundamentally, the use of API names can’t be restricted! That defeats the whole purpose of having them! Sure, Twitter has the right to restrict the calling of functions on their servers through their APIs, but the actual name of the REST calls isn’t theirs forever now. Steve and Leo on Security Now said it very well about APIs:

It’s driving a car. If we didn’t have a single uniform car/driver interface, meaning brake and accelerator, and this is how the steering wheel works, it would be a disaster. And as I thought about this more, I realized that this notion of standards is what this comes down to. And standards are such a part of our life that it’s even – it’s almost hard to appreciate the degree to which we depend upon them. I mean, think about even threads, you know, nuts and bolts with standard threading. If everyone just made up their own, so that screws were not interchangeable, it would just be a catastrophe.

I would go even further; a steering wheel is a patentable invention that other car companies would have to pay to use…but calling it a “steering wheel” isn’t something you can restrict. Doing so would be a blatant misuse of copyright and horrific reduction in free speech. Steven Gibson continued:

And, I mean, so I guess my real complaint is that Oracle has historically benefited from the spread and the use of Java. And so because they allowed that to happen, it’s done as well as it has. And suddenly now Google has capitalized on it, and they’re wanting to take their marbles back and to say – or basically, essentially, this is a $9.3 billion lawsuit. So they’re saying we want some of the revenue which Google is obtaining as a consequence of doing a far better job in commercializing and leveraging Java for profit than we ever could. Because all we’re doing is telling everyone to get Java out of their computers…

…The BIOS is another perfect example. The fact that IBM gave us an interface called the Basic I/O System allowed all kinds of programs to be written without regard for whether it was, for example, a color graphic display or a monochrome graphic display. They were completely different. They occupied different hardware regions. Yet the BIOS hid those differences so that a program didn’t have to worry about what type of hardware you had. And that was an API, a standard. But just in general this kind of standardization, you can sort of imagine sort of a Mad Max post-cataclysm world where you no longer have standards, and everyone’s thing is just made from scratch, and they’re not – nothing’s interoperable. And it would just be a bizarre place.

And I think one of the major things that the Industrial Revolution did was it taught us the power of interoperability. And here Oracle is trying to say, yeah, we’re going to get a toll for you using something that we purchased and never figured out how to use. 

I’ve said it in the past, and I’ll keep saying it: the purpose of all intellectual property law is not to help the owners of intellectual property, but rather to promote creativity and new works.  Ruling that API names are copyrightable does literally nothing to promote interoperability or improve technology; it only makes it harder to improve the world. Getting this fair use ruling is better than nothing, but it should never have come to this.


Photo credit: Android Lineup by Rob Bulmahn, licensed under CC-BY-2.0.

Links 2016-4-17

Counting past infinity is easy! It was the infinity raised to infinity and infinite number of times that I really got lost.

I’ve settled on the right way to show the date in these links posts: the international standard ISO-8601.  It’s about time since that has been the standard since 1988.

Niskanen center names social justice aware libertarianism as “neoclassical libertarianism“. I like this idea, as it’s strictly superior to progressivism, and I’ve been trying to come up with a good name for it. Scott Alexander called it left-libertarianism-ist, which just isn’t as catchy. Of course, maybe pure libertarianism is better, but neoclassical liberalism is far more politically palatable. It is also more “conservative”, meaning that it is closer to the status quo.

Merrick Garland would not be a good SCOTUS justice. Randy Barnett discusses with Reason why he opposes Garland’s nomination: he’s completely deferential to executive and legislative authority and does not protect individual rights from the state. Does it make sense for the Senate to not give him a hearing? Maybe, maybe not. Did it make sense to declare prior to his announcement that any candidate wouldn’t get a hearing? Hard to say; if that hard line approach made Obama nominate an old white guy who endorses state power in the name of national security, that’s certainly a win for neoconservatives. I don’t think anyone should take an outrage stance on the Supreme Court opening because this really is a complicated game theory situation with nested layers of strategy. Even though I’m sure he is one of the most un-libertarian nominees ever, it’s impossible to say if he would be worse than a Hillary appointee or even a Trump appointee.

How to fight the War on Drugs: hit their wallets. Legal marijuana causes Mexican drug cartel revenues to plummet. 

Heard through Slate Star Codex, anti-censorship blog Status 451 (linked in the sidebar) held a fund-raiser for LambdaConf, a functional programming conference I had no idea existed until a week ago. Apparently, after an anonymous analysis of submitted papers, the Lambdaconf organizers selected a paper to be presented at the conference by Curtis Yarvin, a.k.a. Mencius Moldbug, perhaps the most well known neo-reactionary.  Certainly I think neo-reactionaries are a bit nuts, but Mr. Yarvin has also invented the intriguing functional programming language Urbit. We don’t agree with him politically, we can learn and grow our knowledge by understanding what he has to say, especially in technological areas he is an expert in! Alas, as Eric S. Raymond recounts, the social justice movement did not see it that way and pressured LambdaConf to remove Yarvin from the event. Lambdaconf refused and the activists moved to forcing sponsors to drop out. Incredibly, Status 451 started an indiegogo campaign to save LambdaConf, which was funded within the day. This is a big victory for anyone who wants to live in a tolerant, knowledgeable, and free society, but if you want to know their motivations firsthand, please read what they have to say.  Status 451 are also true believers, calling out some on the right for their similarly censoring response.

Related in Not the Onion news: Emory vows to hunt down students who politically disagree with the Left.

Bryan Caplan on liberalizing expertise and the link with defending free speech from the attacks of economic licensing.

A great write up on derivatives, what they are, how they work, and why it’s misleading to suggest that the derivatives market has a quadrillion dollars in risk.

Another excellent reddit post, this one asking soldiers what things they don’t tell you about war. In short: the smell.

Apparently the music industry thinks the DMCA doesn’t do enough to stop copyright infringers (more on the RIAA at TorrentFreak). It seems they’d like to target the safe harbor provisions of the DMCA, the only parts of it that are useful. Techdirt has a great series of posts from the other side, detailing the many abuses of DMCA takedown notices. Right now, there is no legal check on whether a takedown request comes from someone who actually owns the copyright, or even if that copyrighted work is utilized fairly for criticism or commentary. This isn’t an easy problem to solve by any means, but we should remember that the point of copyright is to encourage production of new works, and if there’s anything that YouTube does right is making it easier to create new content. Moreover, it’s helpful to remember that YouTube is run at a loss of more than $150 million a year. Trying to force YouTube to pay for content policing is one of the dumber ideas they’ve ever had, which is saying something. So what should be done instead? A good start would be to make false copyright claims a criminal offense, and require you to prove you own the copyright in the claim.  It would also be good if it turned out your copyright claim was wrong, the ad-money would not go to the claiming part, but would be held in escrow until the dispute is resolved. This would allow YouTube to better focus on actual infringers and stop the torrent of false claims. Of course, another big looming problem for the RIAA is Facebook video, which doesn’t even have the semi-transparent (though flawed) takedown-notice system of YouTube.  Ultimately, given how little money YouTube makes after 10 years on the internet, if YouTube was allowed to be held liable for infringing uploads, YouTube would either go out of business, or cease becoming a free platform anyone could use. This would be a monumental failure of the copyright regime; yes, it might end up getting RIAA members more money, but that is not the purpose of copyright. Copyright exists to help make new content, not destroy content platforms.

California is raising its minimum wage, eventually to $15 an hour. FiveThirtyEight’s Ben Casselman is excited at least to get some data on large minimum wage hikes, although judging from the headlines, it seems like he thinks this is a good idea. I’m fairly confident it is not, and Matt Zwolinski makes one good point to support me: the minimum wage doesn’t fight poverty.  There’s a lot of data surrounding the minimum wage. And it’s apparent that unemployment does not automatically rise when minimum wage increases occur.  Nonetheless, longer term unemployment effects are essentially impossible to study, and it’s likely there are some effects on businesses. If businesses could absorb 20-40% increases in labor costs easily, then why aren’t businesses getting more out of their employees, or more firms entering the business due to excess profits? There is evidence of long term job growth being harmed, as well as higher prices (see last link).  Ultimately, I predict there will be negative consequences for California, but it’s hard to find something that is worth predicting. I could predict that California’s employment and workforce participation rate will be lower than the country average by more than they are now (check this in the future). It’s also likely that low cost goods will see price increases, but I don’t have an easy way to check that over the next five years.

Robin Hanson has a good thought experiment to show that most people don’t vote to change the outcomes of elections. This would explain why anyone votes at all, given the uselessness of voting generally.
GiveWell tries a new tactic to persuade more people to fund their top researched causes: ” First of all. Just so you understand, this guy is a total loser. He begged me to be his peer reviewer, I said ‘NO THANKS.’ Pathetic!”

Related: We can’t stop here, this is Cruz country!

Daniel J. Bernstein taking over crypto is good.

Links 20160224

Marginal Revolution has a post about an event that occurred on Shark Tank. The pitch on the show was an alternative to bee honey, made from apples. Part of the pitch was that this would save the bee population by reducing the industrial demand for it (yes, really). Spoiler from Professor Tabarrok: “Reducing the demand for honey, reduces the demand for bees”.

Politico has a nice article about the potential of Bernie Sanders’ campaign, even if he doesn’t win a majority of delegates. The way the Democrats set things up, he will be in an excellent position to make demands on the party platform, possibly reshaping the Democrats’ economic policy for many years to come.

A recent Quinnipiac poll found that head-to-head, Sanders beats Trump by 10 points in a national survey (he does better than Clinton against Trump). Things could change of course, but it seems that Trump really isn’t who I should be worried about becoming president right now, as he’s still not likely to win the Republican nomination, and it seems the Democrats poll well against him.

SCOTUSblog has a nice write up on the next court nomination fight, now that Scalia is gone, what factors will be in play, and how can the Obama administration find a nominee with a spotless record that fires up the base and ensures a left-of-center court for a long time. I doubt they nominate a classical liberal.

Tyler Cowen writes about the benefits market monetary policy can bring, as well as the shortfalls of its approach when critiquing Fed policy.

Apple CEO Tim Cook posted a public letter to Apple customers detailing a demand made by the FBI. Law enforcement wants the company to create a new version of their operating system which they could then install on a criminal’s seized phone. The new OS would have a backdoor allowing the FBI to more quickly access it.  I liked Apple just fine as a company, but this is pretty awesome. This week, it turns out the FBI was lying about this being a one-time request as the DoJ is already pursuing orders to force Apple to unlock about a dozen other phones, according to anonymous sources.

Nostalgia Critic on Channel Awesome on YouTube has a great video detailing the absolutely horrible copyright abuse rampant on YouTube.   Claimants have no repercussions for false claims, even on self-evident fair use cases because YouTube’s system is entirely automated with no oversight.  Copyright battles are not something of the past, there are still huge problems today.

An NBER study from last year found government subsidies more than account for increases in tuition. H/t Slate Star Codex.

The German government gives us another example of how you can’t have government surveillance without fundamentally breaking security. Hacker News discussion.

Second link from Alex Tabarrok, this time on drug prices and the FDA. Apparently the US has the lowest generic drug prices of any developed nation. I feel like we should switch to a prize system where drug companies are awarded $X million for successfully passing approval, and then that drug is immediately released with no patent into the market. X could be set based on the amount of patients in the previous 5 years who could have used the drug.

People like to talk about the “Uber” of some industry, trying to say a company is disrupting their space like Uber did to taxis (also in the interest of fighting monopolies, Lyft is great too).   How about Uber for welfare? The left often opposes “workfare”, or ways which incentivize welfare recipients to work, since finding jobs for everyone isn’t practical “…but today the gig economy offers the solution: It can easily and quickly put millions of people back to work, allowing almost anyone to find a job with hours that are flexible with virtual locations anywhere.”  There’s also some data that working is a really good on a cultural level, teaching discipline and responsibility. This sort of goes against my attraction to a basic income, but could go hand in hand: you get a basic income allowance if you can prove you engaged in the gig economy recently. Really cool idea.

From EconLog, some praise for the Free State Project. Apparently they’ve already got over a dozen people elected to the state legislature? Tried to find somewhere else this is being tracked, but I didn’t see anything. If you have info on this, tweet at me.

Also from EconLog, Bryan Caplan finished his summarized his extended discussion of ancestry and long run growth literature.  In sum, we can’t say that people with more advanced culture thousands of years ago had that much better outcomes today. It’s likely other institutional decisions are more important (like having stable free markets).

Intellectual Property and Cultural Appropriation

The point of intellectual property is to promote the creation of new content, but IP has become so cumbersome it actually thwarts creativity rather than promote it.  However, restrictions do not just come in the form of laws, but also critiques of what society finds socially acceptable.  Concerns about avant-garde art pushing boundaries would normally be considered the domain of traditional conservatives.  Nonetheless, recent developments have made unlikely critics on the Left, concerned about new art “appropriating” the culture of minorities.

I.

In a previous post, I made a strong argument that copyright has become too restrictive.  Other forms of intellectual property, like patents, aren’t much better. Duke Law Professor James Boyle has written extensively on this issue: What Intellectual Property Should Learn From Software, A Manifesto on WIPO and the Future of Intellectual Property, and a free book, The Public Domain.  Software patents are especially annoying, just ask Richard Stallman.

I had previously stated that IP is interesting because it has a utilitarian basis, not a moral one. Professor Boyle has more degrees than me and says it better:

Yet intellectual property rights are not ends in themselves. Their goal is to give us a decentralized system of innovation in science and culture: no government agency should pick which books are written or have the sole say over which technologies are developed. Instead, the creation of limited legal monopolies called intellectual property rights gives us a way of protecting and rewarding innovators in art and technology, encouraging firms to produce quality products, and allowing consumers to rely on the identity of the products they purchased.

While some academics, technology groups, and libertarian groups (like the Cato Institute) have talked about the problems with IP, mainstream politics has yet to really embrace the discussion, with one exception: the Left is not a fan of pharmaceutical patents.  For example, ThinkProgress lauds the Vatican for speaking out against drug patents, and the Huffington Post bemoans the extension of drug patents in the TPP.  Naturally, these articles do not have a great grasp of markets or how they work to benefit individuals, but they do bring forward some interesting points; ThinkProgress holds drug patent laws as more of a moral issue keeping lifesaving drugs away from the poor, while the Huffington Post piece (written by the founder of the CEPR) supplies alternative, more efficient ways to run the drug patent system. If you want a counterpoint, I’d recommend The Economist’s commentary on this topic.

I think this discussion is excellent, and more Republicans should start talking about the most obvious IP reforms, like reducing the amount of patents issued (especially in software), and making it easier for the FDA to approve more drugs at lower cost to companies. Unfortunately much of the discussion about cultural appropriation is decidedly less excellent. Continue reading Intellectual Property and Cultural Appropriation

Copyright versus Creativity

Unlike the cave painting above (which is no longer under copyright), you are reading an article whose copyright will expire in over a century.  Given the life expectancy of an American born less than 30 years ago, I’m likely to just miss the next Cubs World Series win in 2070.  But 70 years after I’m dead, my copyrights will expire, meaning you will be free to incorporate this article into a movie or perhaps a 3D hologram, sometime around 2140.  Of course, that assumes copyright law won’t change in the intervening 130 years.  History seems to indicate otherwise, as 130 years ago, my copyright would have only lasted 56 years, which suggests this article’s copyright might not expire until 2170, or maybe even 2200!

Continue reading Copyright versus Creativity