We've talked in the past about just how ridiculous publishers are when it comes to doing something like quoting a song in a book. The publishers apparently have no appetite for standing up for the fair use rights of their authors, so they just refuse unless you get a license for absolutely everything, even when it's clearly and obviously fair use. In the latest example of this kind of insanity, it appears that Wiley -- a publisher who already has a reputation as a maximalist -- is telling the author of a book about Android's UI, Juhani Lehitmaki, that he can't rely on fair use to post screenshots of any apps. Instead, it's requiring that he get approval from each and every app developer. Lehitmaki has gone on Google+ seeking permission from a long list of developers:

I need a little bit help with my book stuff and thought to ask it from all of you awesome people here at G+. I'm in a bit difficult situation in the finishing it. I have been in belief that using screenshots of apps as examples of the platform functionality is covered under fair use but apparently I was wrong.

So now I need to acquire permission to use screenshot of different apps I've used so I can keep them in. So if you or someone you know are the copyright holder of any of the following brands / apps or know who to contact please let me know.

He then lists out 22 apps (down to 21 once he got permission from one):

* Google android apps
* SPB Shell 3D (by SPB Software)
* SlideIT Keyboard (by DASUR LTD.)
* Siine Keyboard (by Siine Ltd)
* GO Launcher (by GO LAUNCHER DEV TEAM)
* Evernote android apps
* Twitter android app
* Gameloft android apps
* Tiny Flashlight + LED (by Nikolay Ananiev)
* Able Remote (by ENTERTAILION LLC)
* TED (by TED Conferences)
* Gigbeat - Concerts (by GIGBEAT, INC.)
* TouristEye - Travel Guide (by Tourist Eye)
* Winamp android app
* Pulse News (by ALPHONSO LABS)
* Songkick Concerts (by SONGKICK.COM, INC.)
* Prixing - Scanner & comparer (by PRIXING)
* Catch Notes Notepad (by Catch.com)
* Sony, Android skin
* Samsung, Android skin
* HTC, Android skin
[edit: removed the ones I'm already in contact with. Thank you!]

He notes that all of the screenshots are used as examples of good UI design and are clearly credited. In other words, in each case, the app is portrayed positively.

Here's the thing: he should be pissed off at Wiley for totally failing him as a publisher and being obnoxiously unwilling to stand up for their author. Using screenshots in this manner is fair use. No question. I can't see how any intellectually honest person could go through the four factor test and not find that using screenshots in a book like this are fair use. Wiley should back up their author, but they don't, because they're too scared of a lawsuit and apparently don't have the guts to stand up for fair use rights. It's shameful, and should be a warning to any author not to sign on with Wiley. Why bother signing on with a publisher who makes you go through a silly wasteful exercise like this?

In fact, I'd imagine that many of the app developers are similarly inconvenienced by this process of now having to give Juhani permission. Of course they want their apps featured, but now they have to fill out some sort of release or license just to make Wiley's lawyers happy. This process inconveniences absolutely everyone. Wiley should be ashamed.

For those that read Techdirt regularly, the idea of disruptive technology is nothing new. We have seen people and businesses bring disruption to many industries as well as to many business models. The internet has allowed such disruption to spread at a far faster pace than in previous decades. For example, services like YouTube, Netflix and Hulu have turned the world of film and television upside down. For music it was the mp3 and everything that it allowed. With video games, the story is not quite as well defined.

We have seen some disruption over the years, the Wii being a primary one. It showed the gaming world that the graphical arms race of previous console generations was not as important as innovation in the way people play games. Another disruption happened because of Facebook and mobile gaming. These platforms brought with them the proliferation of a free-to-play business model for gaming. The idea that people could play games for free and then pay money later was something never tried since shareware fell out of favor. These little pockets of disruption have shown that there is a market for gaming outside the typical retail console and PC arena. A market that is ripe for the harvesting.

With all that in mind, imagine the breath of fresh air for gamers when a new Android based console, the OUYA, was announced via Kickstarter. The OUYA promises to be just the kind of disruption the games industry needs. Describing this need, the creators say:

The console market is pushing developers away. We've seen a brain drain: some of the best, most creative gamemakers are focused on mobile and social games because those platforms are more developer-friendly. And the ones who remain focused on console games can't be as creative as they'd like.

Let's open this sucker up! It's time we brought back innovation, experimentation, and creativity to the big screen. Let's make the games less expensive to make, and less expensive to buy. With all our technological advancements, shouldn't costs be going down? Gaming could be cheaper!

Among its chief selling points is the open development environment. This means that anyone can make and sell games on the console with the only barriers to entry being owning the console and making sure that some aspect of the game is free to play. For gamers, the only barrier to entry to playing these games is the initial $99 it costs.

So how well was this new console received? Well, Kickstarter itself has that covered in a blog post:

Yesterday a video game project called Ouya became the eighth project in Kickstarter history to raise more than a million dollars, and the fastest ever to do so. Ouya hit the total in just over eight hours, shattering the previous record.

As you might expect, Ouya also has the biggest single-day total in Kickstarter history. It received more than $2.5 million in pledges from its launch on Tuesday at 8:44am to Wednesday at 8:44am.

Two Kickstarter records broken in a single day by a single project. The only other project to pull that off was another game project, Double Fine Adventure. The funding hasn't stopped just with these broken records either. It has already surpassed $4 million dollars with over 30,000 backers, and it shows no sign of stopping. With this kind of backing in less than two days, this console and what it plans to do with the games industry will be tough to ignore.

The overall impact the OUYA will have on the games industry is still very much up in the air. However, we do know it has become an overnight success in the minds of both developers and gamers alike. People who are very much willing to part with their money for the promise of a major shift in the way we consume games. I know it has made me jump at the chance to get in on the first run.

Because no new products can be released these days without getting sued for patent infringement, Google has been sued by EMG Technology -- yet another patent holder that isn't actually competing or innovating suing companies that are. The issue is Google's recently released Chrome browser for the mobile phone, which EMG claims violates its patent, 7,441,196 on an "apparatus and method of manipulating a region on a wireless device screen for viewing, zooming and scrolling internet content." EMG points out that Apple sought to have this patent re-examined and it survived. Despite the fact that the inventors of the patent all appear to reside in Southern California, EMG is located in Southern California and Google is based in Northern California, take one guess where this lawsuit was filed... Why East Texas, of course. Because that makes no sense at all. And people wonder why we say that the patent system has become a tax on innovation.

The latest in the ridiculous saga of the patent dispute between Apple and Samsung, which has resulted in Samsung phones and tablets being banned from sale in the US, is that Samsung, with the help of Google, has been pushing out an over-the-air software update to make its phones worse. Yes, the OTA update is designed to take away a feature, in an effort to convince the judge that the phones no longer violate Apple's patents. The feature in question? The ability to do a single search that covers both the local device and the internet. Because, you know, if Apple had never figured that out, I'm sure no one would have ever thought to search two databases with a single query. Either way, the end result is that the public loses a useful feature, because Apple doesn't want to compete, and a federal judge seems to think that's okay.

We already had mentioned that Apple had succeeded in getting a rare pre-trial injunction against Samsung's tablets, but now it's also succeeded in blocking the Galaxy Nexus phone as well, though the judge's reasoning is a bit bizarre:

"Apple has made a clear showing that, in the absence of a preliminary injunction, it is likely to lose substantial market share in the smartphone market and to lose substantial downstream sales of future smartphone purchases and tag-along products," Judge Koh said in Friday's ruling.

First of all, this seems to be yet another admission by Apple that it just can't compete in the marketplace against Samsung. Such a ruling seems to scream out to potential buyers: hey, check out the devices that even Apple admits you'd want over its own. But, more importantly, "losing substantial market share" is what competition is all about. If someone comes out with a better product, then the other company should lose substantial market share. That doesn't deserve an injunction. That harms the market, who clearly -- even by Apple's own admission, apparently -- wants the other product more.

The fact that two phones will compete is no reason to ban a phone. Let them compete. Let the market decide.

Even more bizarre is why an injunction should be issued at all. Following the MercExchange decision, courts are only supposed to issue injunctions in exceptional cases. If it's an issue that can be dealt with by requiring a royalty, then there's no reason to issue an injunction.

Samsung, of course, is appealing this and asking that the injunction be put on hold until that appeal is heard. In the meantime, some are pointing out that, for all of Apple's insistence that Samsung copied the designs of its phone and tablet from Apple, you could easily make the argument that Apple got some inspiration from Samsung as well: And really, that's the point. Innovation and advancement involve all sorts of copying, but also improvements. It goes back and forth. Attacking one party for copying another misses the point, limits competition and harms consumers. It's too bad the US patent system and the courts now want to aid that process.

Well, well. A few weeks ago, the jury in the Google/Oracle lawsuit ruled that Google infringed on a very small amount of Java API, but as we noted it was still an open question (and one for the judge to rule on) whether or not APIs were even eligible to be covered by copyright. In the second phase of the case, the jury completely rejected the idea that Google had infringed on Oracle's patents. So all that left was the 37 APIs. And that tiny "win" for Oracle is now gone as well, as the judge has ruled that those particular APIs are not covered by copyright:

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.

It is true that the very same functionality could have been offered in Android without duplicating the exact command structure used in Java. This could have been done by re-arranging the various methods under different groupings among the various classes and packages (even if the same names had been used). In this sense, there were many ways to group the methods yet still duplicate the same range of functionality.

But the names are more than just names — they are symbols in a command structure wherein the commands take the form java.package.Class.method() Each command calls into action a pre-assigned function. The overall name tree, of course, has creative elements but it is also a precise command structure — a utilitarian and functional set of symbols, each to carry out a pre-assigned function. This command structure is a system or method of operation under Section 102(b) of the Copyright Act and, therefore, cannot be copyrighted. Duplication of the command structure is necessary for interoperability.

As some have pointed out the ruling is somewhat narrowly focused just on these 37 APIs, but the principles involved in why those 37 APIs are not copyrightable certainly will apply to plenty of other APIs as well. The ruling itself (embedded below) is pretty thorough and detailed. We had noted earlier that Judge Alsup had admitted that he'd learned to code Java in order to better understand the case (and that he'd had a history of knowing other coding languages as well) -- and it shows. Rather than using braindead broad analogies that don't make much sense, as we see all too often in court rulings, Alsup gets to the heart of the matter and clearly understands what an API is and how it works. His ruling is actually a decent primer on some parts of code for those who have never coded.

From that, Alsup points out just how ridiculous this entire case has been -- and specifically notes that he's explaining the level of ridiculousness of Oracle's position for the benefit of the appeals court who will surely hear this case once Oracle appeals (and which almost certainly will be staffed with judges not nearly as clued-in as Judge Alsup).

Oracle has made much of nine lines of code that crept into both Android and Java. This circumstance is so innocuous and overblown by Oracle that the actual facts, as found herein by the judge, will be set forth below for the benefit of the court of appeals.

He goes on to explain not just how insignificant the situation was, but he details how it happened and why it's crazy to consider it worthy of a copyright infringement suit. It's a pretty complete smackdown of Oracle's position.

Again, it is quite likely that Oracle will appeal, even though this ruling is so firm it might be smarter for Oracle to issue a giant apology to the tech community and just get on with doing business. That seems unlikely, of course, as Oracle probably hopes to find less knowledgeable judges on appeal. One hopes, however, that the appeals court judges will recognize the very, very thorough nature of Judge Alsup's ruling, and reject any appeal as well.

Remember back when Oracle was claiming that Google owed it billions of dollars for infringing on Oracle patents and copyrights? Yeah. Forget that. The jury just said that there's no patent infringement at all and the judge has dismissed the jury. All that's left in this phase of the case is for the judge to make a determination over the copyright issue -- and if he decides APIs cannot be covered by copyright, Oracle will have a complete and total loss. Of course, Oracle will almost certainly appeal, but this case has turned into something of a complete disaster for the company.

Groklaw has the details with "no" answers across the board:

Clerk:

Question 1: has Oracle proved by preponderance of evidence that Google infringed?

Claim 11: not proven
27: no
29: no
39: no
40: no
41: no

Question 2: not proven

1: no
20: no

Question 3: no answer, no response, not applicable.

It's a difficult time to be making an Android phone, it appears. Just days after customs started blocking various HTC phones based on an ITC injunction due to some Apple patents, the ITC has also ruled in favor of Microsoft in a patent dispute with Motorola over Android phones. While there will be appeals and other such things, if this stands, and there is no settlement, Motorola's phones could also be blocked at the border by ITC injunction. Motorola, for its part, noted that Microsoft filed with the ITC over nine patents, and the ITC has only said that the phones violate one patent. Of course, since the ITC has only injunctive relief, it doesn't seem to much matter if it's one, two, six or nine -- the phone can be blocked. I am, once again, at a loss as to how this does any good. Keeping competing products from entering the market seems like the opposite of how you encourage innovation.

Recently Techdirt wrote about the heated debate on the subject of whether people should learn to code. We pointed out that some knowledge of that subject could be particularly useful in helping people understand why copyrighting APIs or patenting software is just crazy -- whatever the abstract legal arguments, in practice both make programming much, much harder.

An obvious situation where such practical knowledge could be crucially important is in court cases dealing with software. Rather neatly, the long-running court case between Oracle and Google, where the former is accusing the latter's Android of infringing on its code in various ways, has thrown up a perfect example of this.

It arose in an exchange between Judge Alsup and Oracle's main lawyer, the high-profile David Boies, best known for representing the US Justice Department in the United States v. Microsoft case. Boies claimed that the fact that the jury had decided Google's "rangeCheck" code had copied Oracle's implementation of the same function was evidence that Google was trying to save time. The argument of Boies was that Google consciously copied those few lines from Oracle in order to accelerate development -- and thus to start making money faster through daily activations of phones running its Android operating system.

But Judge Alsup was having none of it:

I have done, and still do, a significant amount of programming in other languages. I've written blocks of code like rangeCheck a hundred times before. I could do it, you could do it. The idea that someone would copy that when they could do it themselves just as fast, it was an accident. There's no way you could say that was speeding them along to the marketplace. You're one of the best lawyers in America, how could you even make that kind of argument?

This is a perfect example of a judge being able to draw on his personal experience of coding to dismiss what a clever lawyer probably thought was a clever argument.

Contrast this with another judge, talking this time about software patents, as recently reported on Techdirt:

Judge Michel seemed unaware of the depth of the software industry's dissatisfaction with the patent system. He suggested the patent system's critics were relatively marginal figures not representative of the views of the broader technology industry. And he didn't seem to understand the dynamics of the patent arms race currently affecting the software industry.

"If software is less dependent on patents, fine then. Let software use patents less as they choose," Michel said. "If other industries are terribly dependent on patents, then let's not wreck the system just because software people are unhappy."

No one who has tried to code in any depth could dismiss the problems caused by software patents so glibly -- it would be hard, for example, to imagine Judge Alsup saying this.

Learning to code certainly isn't a panacea, nor is it relevant for everyone. But for those professionals who must make important decisions about software -- judges, for example -- a basic programming literacy is indispensable. As it is, the tech industry must count itself lucky that the Oracle vs. Google case seems to have ended up in front of one of the few judges qualified to decide it.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

There's just something about when also-ran brands suddenly team up to try to "do something" that gets clueless people excited. It almost never works however. The latest is that Microsoft and Barnes & Noble have settled their (somewhat acrimonious) patent dispute (in which B&N was making the case that Microsoft violated antitrust law with its patents) in order to work together on a new spinoff company built around the Nook ebook platform. To be fair, lots of reviewers have raved about the Nook, and noted that it's actually a better device than the Kindle. But actually getting the market to agree has been a pretty big challenge. Could Microsoft help? Perhaps, but these kinds of linkups don't have much of a history of working well. In part, it's because you have different parties with different priorities. In part, it's because deals like this usually involved a lot more planning than executing. But, largely, it's because these companies don't really understand the market. At least, they seem to think that if they do a few superficial things up front, that will suddenly catapult them to the top. They may discover it's a lot more difficult than that.

But, of course, that hasn't stopped some from getting really excited about this. B&N stock shot upwards in response, though perhaps it was just because investors were happy that the company was able to "unload" the Nook. But, then, you see comments like this:

"With the new Windows rollout, there are so many things you can do with the Nook beyond e-reading," Glickstein, who is based in New York, said today in a telephone interview. "Now that Bill Gates and Microsoft are in on the tech side, it’s absolutely compelling."

Of course, you could do lots of things with the Nook beyond e-reading that have nothing to do with Windows. Tying the Android-based platform to anything having to do with Windows seems like a step backwards, not forward. Also, er, someone should tell this guy that Bill Gates retired four years ago. But, you know, why would anyone who's in charge of analyzing these kinds of things be aware of little facts like that?