It fails on a misdirected objective. That misdirected objective is 'competing with 'Citizens United' style money' vs. removing money from the campaign trail. The former is nice, the later is necessary.
The whole point of this exercise is that candidates will only receive this Mayday SuperPAC funding if they agree to work towards "removing money from the campaign trail".
That's exactly what they did. Their implementation is a "clean room" implementation.
Actually, the trial testimony was quite unclear about the mechanism that resulted in the declarations of the 37 APIs being "word-for-word, symbol-by-symbol" the same (according to Google's witness). You may be correct that Google achieved this through reverse engineering but I don't recall seeing this either claimed or substantiated (the amicus brief from Professor Ralph Oman, former Registrar of Copyrights, asserted that Google had not reverse engineered the API declarations).
I haven't read it (yet), but when you're making an operating system call, you are making a call to the operating system's API. If an API is copyrightable, then so are those system calls. That works against your argument, if I understand it correctly.
I would not say that by the mere fact of an interface being an "operating system call", it does not obtain copyright protection; it would depend upon whether that interface is to things that were original, creative choices made by the operating system programmers.
For example, if displaying the letter "A" on the screen is achieved by moving the number "65" to memory location 0x4e00 then the system call is derived from the non-copyrighted hardware. However, if the OS call comprises passing a complex specified data structure to be inserted into another data structure and manipulating a third data structure for scheduling a particular operation upon the passed data, then the definition and organization of all of those various elements were not dictated by the need to interface with non-copyrighted hardware, but by the desire to avail oneself of the copyrightable creative choices of the OS designer.
Note that I am not saying that one should not be able to make such calls, but this is not owing to the lack of copyrightability of the API. Most commonly one is licensed to make such calls but even if they are not, there is still a strong case to be made for Fair Use.
My argument is not premised upon a resume or bibliography, but on what was tried in the alleged precedents.
The copyright issue in Sega v Accolade concerned whether the copying performed during reverse engineering should be considered Fair Use. In Oracle v Google, Google did not reverse engineer Java but instead worked from the prodigious documentation available.
In CA v Altai, the court's analysis first removed the elements of the copied program that were either in the public domain, or dictated by external factors such as operating system calls, and then deciding there was no organizational left afterward worth protection. (When designing a programming language from scratch, as in the case of Java, there are far fewer external factors to dictate the structure required to accomplish a particular task.)
Lotus v Borland was admittedly about copyrightability of an interface and might apply, but it took place in the 1st District and not binding to a 9th Circuit appeal*.
There are many reasons why one may decide that Google did not misappropriate Java's "structure, sequence, and organization" -- without resorting to the conclusion that there is no such SS&O original to the APIs at issue, or to APIs in general.
Personally I think that everyone involved in this case has made mistakes and/or misbehaved. Sun should have more precisely defined what they felt was protected, Google should have GPLed their code (once OpenJDK was announced), Oracle should have sought cooperation rather than litigation (there actions have fairly well torpedoed Java's future), and the lawyers have been arguing all the wrong issues.
The biggest culprits, though, are the legislators in Congress who have enacted such an untenable copyright regime that it provides no certainty as to what acts are permitted or prohibited, leaves well-intentioned businesses and people at risk of suffering debilitating penalties, and is doomed to waste further billions of dollars in litigation, clogging up the courts, with no sign of any attempt at correcting it.
"Judge Posner had nothing to do with this case."
You are correct. I misspoke. I should have said Judge Alsup. And to be precise, in his decision Judge Alsup did not rule that APIs were generally not copyrightable, merely that the Java APIs at issue in this case were not.
* Though tried by the CAFC, they were compelled to judge the case as though it'd been appealed to the 9th Circuit Court of Appeals.
Neither Sacha Labourey nor the EFF discuss the legal issues of copyright in APIs. They merely support the beneficial nature of not needing to seek permission for interoperable and competitive products -- ignoring that the Fair Use doctrine is the traditional means of addressing such concern (not to mention competition in the marketplace favoring interoperable solutions).
Tim Lee misrepresents Samba as duplicating the Windows file-sharing system, ignoring that SMB was developed mainly by IBM with some assistance from Microsoft, Intel, and 3com. An attempt by Microsoft to sue the Samba project would have likely led to anti-trust charges (and indeed Microsoft was forced to provide documentation and licensing to Samba because of anti-trust litigation). He is also mistaken in suggesting that copyright liability might occur for "new code from scratch", should it happen to be similar enough. Copyright does not work that way; independent development which might result in identical works is never infringing.
Jonathan Band is mistaken about the case precendents (the U.S. cases, anyway) examined by the CAFC in that those cases involved Fair Use defenses, and did not address whether APIs obtained copyright protection in the first instance. An issue that was never tried shouldn't qualify as precedent in later litigation.
The CAFC ruled very narrowly on Judge Posner's decision that the Java APIs did not qualify -- as a matter of law -- for copyright protection. It was entirely appropriate for them not to rule on the factors of Fair Use and copyright abuse, which are yet to be decided.
For all the sophisticated analysis by economics, economic historians, law-and-economists and lawyers, we still cannot say with any conviction that in general IP law stimulates creativity or promotes innovation, though it may contribute to the process of communication between producers and consumers.
And it is precisely this "process of communication" that has had its technological costs practically eliminated over the last quarter century or so. In other words, the contribution being made by IP law has been diminished to near zero levels, despite the law being expanded to ridiculous levels.
My disillusionment with the Supreme Court came with the appointment of Clarence Thomas; not because of his political views or the harassment scandal that arose during his confirmation, but owing to the fact that his entire judicial career included just 18 months as a sitting judge. Up till that point I hadn't realized that Supreme Court Justice was basically an entry level position.
Advocating or asserting that many, many of these communications are confidential simply denies that they are necessities of life ...
I fail to see a connection between whether something is confidential and whether it is a necessity of life; certainly not so as to make them mutually exclusive.
Again, posting a letter is not the same as walking out the door into the street. If I ask Fred to give a letter to Mary, that is not a public transaction -- Fred is acting as my agent per what agreement we've arranged. He is not a third party to the transaction and, though he may be a third party to the message, he is certainly not the "public". If he requires that I provide him with certain information to assist him in his duties, that information is still between him and me; there has been no public disclosure.
Taken to its logical conclusion, much of what you seem to want declared confidential would bring social interchange to a virtual halt, and I certainly see how that would bode well at all. Quite the contrary.
I am not saying such "pen data" information should be completely off limits to the government, merely that it should require a warrant.
The same technology that facilitates recording and accessing such information also facilitates rapid obtaining of proper warrants. If there is current not the capability for law enforcement or government agents to obtain a warrant in a matter of minutes then I would say it'd make more sense to spend money implementing such an infrastructure, rather than spending billions of dollars building facilities and employing personnel to intercept and record the particulars of every communication that ever takes place on the entire planet.
The exterior of an envelope contains information specifically enabling a communication contained in the envelope to be routed correctly. Much the same can be said for internet addresses, telephony data, etc. They are all necessary predicates for the correct routing of the communication.
Yet the information is being provided to the postal service as part of the transaction of sending the communication, it is not being published in the local newspaper or posted on a litfass column. It should be considered private between the customer and service, and a warrant should be required from outside parties to access that information.
Let me add one more point: the idea that each subscriber has his own antenna, and that the antenna is the sole source of the signal he receives is pure smoke and mirrors.
The issue is not whether the antenna is the sole source of the signal (though it is), the issue is whether the signal from the antenna ends up going to anybody other than the antenna's owner (renter, actually).
I'm not familiar with the story about which you speak (a link would be appreciated), however, the New York Public Library (about a week ago) released scans of their collection of public domain maps, for no fee.
Your point is well-taken for the sense of copying in a manner that might qualify as infringement under current laws. But in the broader sense of copying, it is undeniable that "we all do it". You see, I just copied from your post ("we all do it"), and you copied it from the video. Would such copying qualify as infringement? Probably not*, but it is copying.
* But then, some courts have found that a single-line poem, or a 13-second performance, is deserving of copyright protection. So who knows for certain?
"Come to its milk" is an old dairy farming phrase that means the calf has been weaned and will drink milk out of a bowl. The sooner a calf could be trained to "come to its milk", the sooner its dam (mother) could return to production.