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  • Feb 22nd, 2021 @ 3:35pm

    Re: Re: Unfortunately...

    It's interesting that copyright hasn't really been a focus of this legislation. It's been phrased in terms of an "imbalance" in bargaining power. Essentially, Google and Facebook were able to ignore demands from news corps during negotiations on ad revenue sharing.

    But I don't really believe that justification. If there were five big search engines (or five big social media companies) instead of one primary one in a given country, the news corps wouldn't simply be able to ignore four of them, they'd still want to have visibility on all of them, to drive traffic. So, having more tech companies, or more competition, wouldn't fundamentally change the equation, because the real problem the news corps have isn't Google or Facebook as such, the real problem they have is the vast amount of information on the Internet that isn't news.

    The essential problem is the news corps are much smaller fry than they used to be, in terms of ads. The big tech companies are the gateways to so much info on the net; that's where the action is, that's where the ad money is, and the legacy news corps would like to tax all such gateways to prop themselves up. That's why the legislation is written to allow the treasurer to target whichever companies he decides, at will, with little to no oversight. It's news corps vs the Internet, that's the game really being played here.

  • Feb 22nd, 2021 @ 3:21pm

    Re: Re: What's the total traffic?

    I think the fundamental problem the news corps are facing isn't any individual companies, it's the scale of the Internet itself. The news business is only a small part of the information people are looking for on the net. A search engine is mainly going to be used by people getting stuff done, and that's where most of the advertising money is, not news. Even in the social media sphere, news is a minor part. Sorry news bosses, the world changed, and information is no longer yours to monopolise.

  • Feb 18th, 2021 @ 8:06pm

    Re: Incompatible with democracy

    Facebook: So, you want us to pay publishers who voluntarily choose to publish their stuff on our platform?
    Government: Yep, that's what the law will require.
    Facebook: And what about the value we're giving them from free brand advertising, customer relationships, and clicks?
    Government: What value? Look, we're giving you two options. You either have to take all the news, or none of it. Your choice.
    Facebook: OK, we choose none.
    Government: You bully!

  • Jan 26th, 2021 @ 7:42pm

    Re: Re: Re:

    If you're worried about inconsistencies or a lack of principles in decision making, then you should be worried about this proposed link tax law.

    The law would create two special classes of company, the news media companies (I think of them as the "lords") and the tech companies (the "serfs"). The news media companies self-identify as such (whether they actually must create news articles, or Australian news articles, is unclear), whereas the tech companies are identified by a minister (currently only Google and Facebook are taxed, with the minister having the ability to expand the list as desired without having to justify that choice, one sided). There's a lack of clearly articulated principles behind those choices, for instance there's no certainty around what triggers being added to the "taxed companies" list. (This creates more business risk for tech companies thinking to do business in Australia.) Companies had best behave themselves lest they be reclassified as serfs.

    The law stipulates the tech companies must pay for certain links to the news media companies, but is conspicuously silent about the tech companies being paid for the value of referrals to those media companies. It's a one sided tax; money shall flow only from serfs to lords and never the other way around.

    Although originally justified as promoting Australian journalism, there is nothing in the law that ties any payments to actual funding for journalism; it's just slush funds for news corps. There's no articulated methodology for reviewing whether the law is achieving any of the goals used to justify its introduction, perhaps to avoid any questions or debate about the appropriate uses of said slush funds. What the lords do with their ill-gotten gains is not for your eyes!

    If tech companies makes changes to their algorithms, they are forced to share details with the news media corps, one sided. No ordinary companies are required to get such insights. No compensation is allowed to the tech companies for this breach of their trade secrets.

    If a tech company has privacy-invading info on users, they are forced to share details with the news media corps, one sided. Again, no ordinary companies, or citizens, gain such insights. No affordance is made for privacy concerns from mere citizens.

    Why do these particular media/entertainment companies gain the power to become our lords and masters and no-one else? Why should a tech company be forced to index links for free and then also be forced to pay for the privilege? More fundamentally, how have we come to a place where merely referring to information is taxable, something Tim Berners-Lee has said "risks breaching a fundamental principle of the web by requiring payment for linking between certain content online"? Where are the principles here?

  • Jan 26th, 2021 @ 6:07pm

    Re: Re: Re: Re:

    The one-sided nature of the proposed link tax law is part of the problem. The news corps say Google should pay them 10% of their advertising revenue based on an estimate that 10% of Google searches were for news, so Google did an assessment and found closer to 1% of searches were for news. Under the proposed legislation, who decides how much to pay? A mandatory arbitration committee decides, without any need to justify their decision based on evidence. We need evidence-based legal decisions, not a kangaroo court.

  • Oct 28th, 2020 @ 6:31pm

    Re: Re: Re: Re: Re: Re: Re: Re: Some section 230 hypotheticals

    I can see your concern, but the risk I was thinking of was a certain social media founder who, because he sits at the top of a mountain of technology, can just decide to do what the government wants and censor millions of people's posts, without needing to be compelled to do it by any law.

  • Oct 28th, 2020 @ 4:27am

    Re: Re: Re: Re: Re: Re: Re: Re: Some section 230 hypotheticals

    you're potentially supporting banning the platform from having their own speech and community standards

    Yes, there's the potential to curtail a lot of speech here, depending on the details, so as you say the boundaries matter. What relationship does a company enforcing community standards have to company speech? Banning/shaping/curating conversations isn't the same as directly stating an opinion but there's a relationship, which is what I find not as clear cut as I'd like about the "facilitator/creator" distinction in section 230.

    Yes, I would [be fine with Facebook banning a politician], as I'm fine with Stormfront and Breitbart doing so. I don't believe Facebook is a good platform for political speech, and they have many competitors to use for those types of conversation.

    OK, I think that's an important point. My earlier argument was based on the idea that since Facebook has some dominant market share that different rules should apply. I can see an argument for narrowing the focus to its use in political speech (as that was the hypothetical), and it might not be seen or used by the same percentage of people who are seeking news or discussion of a political nature. In that domain, it may not have the largest market share, so it's harder to argue that any kind of proposed political neutrality rule should apply there and not apply to the Breitbarts or Stormfronts too.

    However, again, I think this is where some of this political argument that's been happening gains traction with people. If a platform up front says "we're political, we support party X", people have to like it or leave, but many platforms are seen as not political, e.g. Facebook, so because the don't advertise themselves that way, if they do express a political opinion through whatever corporate speech or community standards they apply, that's seen as changing the rules or violating some assumed social contract to be "neutral". And even if they haven't expressed any overtly political opinion, politicians can always spin it as if they had, to apply pressure.

    But, the answer to that is not for Facebook to have been forced to host or ban certain types of speech arbitrarily at the will of the sitting government.

    Well, I agree with that. To be clear, I'm not arguing for the government to be able to force the hosting of certain speech or certain speakers on platforms. Rather, I think that government censorship is a problem for democracy, and that corporate censorship/spin/bias/coversation-shaping could (given sufficient scale and influence of the companies involved) also be a problem for democracy.

    I think some valid points have been made that the nature of competition means the latter is less of a problem than the former, and that trying to fix any perceived corporate speech problem risks throwing out the baby with the bathwater by putting at risk speech of other companies and ultimately individuals. In other words, that curtailing moderation efforts of companies amounts to curtailing speech, which ultimately negatively impacts the very thing that these suggestions were intended to improve which was the ability of individuals to speak freely.

  • Oct 27th, 2020 @ 8:45pm

    Re: Re: Re: Re: Re: Re: Some section 230 hypotheticals

    "But is governmental tyranny the only kind of tyranny we must defend ourselves from?"

    Yes.

    OK, that's interesting. I can see your argument that the threat of violence elevates governments in terms of what must be considered tyranny.

    Yet, governments don't engage in tyranny on their own, they often have complicit citizens and companies doing their bidding too. So, from that point of view, government control of companies must have limits. But likewise, corporate power must also be limited.

    I wasn't talking about the power of violence, I was specifically talking about the power to speak and be heard. And in that domain, media conglomerates and internet companies have a sizeable power. And my question what distorting effects do corporate opinions have on democracy, and how can they be held accountable?

    I can see the argument that the internet companies we're talking about are not in the same arena as tobacco and oil companies. But saying they seem to be good guys doesn't make the threat of their power any the less. What happens when large corporations decide what the populace does or does not need to know about, with or without urging from the government?

    Governments have been toppled by news media cartels. To think this cannot happen via internet companies who promise not to be evil seems overly hopeful.

  • Oct 27th, 2020 @ 7:59pm

    Re: Re: Re: Re: Re: Re: Some section 230 hypotheticals

    The bar owner still reserves the right to tell you to STFU or get out of his bar either way, whether he's running a hole in the wall bar or a main hall at Oktoberfest. Why do you wish to deny the same right to a social network that wants to control the abusive customers they find on their property?

    A valid question, although I was talking about platforms shaping conversations by changing/banning speech, not people, although I think these are on a continuum of censorial approaches.

    OK, another hypothetical, just to take a concrete example, are you saying that you'd be perfectly fine if Facebook were to decide that your preferred political leader (or even every member of their political party) is "abusive" and ban them from their platform or from making posts?

    I'm choosing Facebook for this hypothetical on a market share argument which I said earlier seems to be a factor in my thinking. If that company is dominant in social media, having a larger proportion of the the US population signed up than any other social media company (which I think may be true), then my argument that size+influence matters should make that company a good example. (I'm also choosing a concrete example of Facebook here because I'm not finding the bar analogy particularly compelling and would rather talk about actual instances of companies who might be affected by the political debates ongoing in this area.)

    I'm not saying that's happening, by the way. I know politicians bleat about things like this all the time, and they're really just complaining that the megaphone isn't loud enough for them and that the same megaphone is also being used by those other guys who should clearly just shut up because they're ne'er-do-wells.

    But if it did happen, to your preferred politician, would you bat an eyelid? Would you hope a reason would be required, or would no reason be required for you (it's the company's right after all)?

  • Oct 22nd, 2020 @ 5:21pm

    Re: Re: Re: Re: Some section 230 hypotheticals

    Personally, I'm less concerned about smaller forums being single-minded and dedicated to a particular world view, especially if they're up-front about it, than I am concerned with larger ubiquitous platforms subtly biasing what's presented to members of the public, or creating filter bubbles that divide society along political lines.

    Scale seems to have an impact in my assessment of the issue. Companies that are used by over 50% of the population have the ability to distort democratic society. The same is true of media moguls who own too many media outlets. I think that's part of my assessment of why a one-size-fits-all approach to companies sits poorly with me. It's not just the size, of course, it's their power, their reach, their influence. Too much consolidation of media sources or conduits into fewer hands seems problematic to democracy.

    Perhaps what's needed is more competition. The problem is the first companies in a new field seems to become so large that they cannot be challenged. Breaking up companies along product lines wouldn't solve the problem of undue influence, e.g. if a company that does search cannot also make a web browser, that wouldn't stop the search business dominating.

  • Oct 22nd, 2020 @ 3:44pm

    Re: Re: Re: Re: Some section 230 hypotheticals

    I agree, there's no simple line between spam and opinion filtering, because spam is itself based on an opinion. My hypotheticals were intended to show how removing words can have the effect of distorting meaning, even without any intended malice, just as more subtle and deliberate rank-lowering can.

    I'm not sure I agree with your example though. A bar owner can't distort democracy the way a majority market share information service can. What patrons wear on their feet isn't the same as the ability to censor what patrons can say in the establishment. What patrons can wear would probably also be posted on a visible sign so the rules are known up-front before patrons enter the establishment, whereas rank-lowering / de-listing /shadowbanning often occur behind the scenes with no up-front rules given. Any given bar also has competition down the street just a few minutes walk away, and they tend to patronised on a casual basis, whereas information services may have either no practical alternatives (e.g. local broadband providers), user lock-in practices (contracts, difficulty extracting your data, etc) and network effects (all your friends are on the same service), and tend to be used every day (sometimes for work in the case of search) not on the same kind of casual basis. So I don't feel transferring agreed norms from other kinds of companies enlightens much in this case.

    And as for the government / company distinction, the purpose of enumerating what the government can't do in a document like the constitution is to prevent tyranny. But is governmental tyranny the only kind of tyranny we must defend ourselves from? If a company wields power comparable to a government in practice, does that mean it gets a free pass, by virtue of being a company, or by having theoretical competitors (even if they run a distant second)?

  • Oct 22nd, 2020 @ 1:09am

    Re: Re: Some section 230 hypotheticals

    OK, I can see your arguments. I'm trying to understand where is the line between curation and creation. So, another hypothetical...

    Let's suppose a company with majority market share in online search or social media was to decide, over the course of several years, to lower the rank of any article mentioning your favourite politician or political party. Not too blatantly, but enough to drop top stories to third or fourth spot, or fourth spot stories to eighth spot. Still on the front page, but it will perhaps affect viewership of those stories.

    Does that fall under your definition of curation?

    Where is the line between spam filter and opinion filter? Does there need to be a line in law between those two, or not?

    What accountability (if any) should apply for such algorithmic decisions?

    Does the market share of the company impact your answers?

  • Oct 20th, 2020 @ 6:22pm

    Some section 230 hypotheticals

    I have some hypothetical questions here about editorial control exercised by platforms and the implications of such decisions...

    1. Suppose person A posts something libelous about person B on a forum. Person B demands a retraction on the same forum. The platform's owner or algorithms decide this is a flame war, and ban person A from posting further, including banning their retraction and apology. Person B then sues A for libel having not seen any retraction.

    2. Suppose person A posts something about person B on a forum, but the platform's algorithms censor that post by replacing some banned words with ****. Person B assumes the words are the worst possible ones (despite not knowing what precisely is on the banned list) and sues person A. Had they known the actual words used, it might not have come to that.

    3. Suppose person A posts something on a forum which has implemented (poorly) a shadowban technique for naughty words, such that the words don't even appear for other readers. Person A's post, instead of having **** where a word has been banned, actually omits that word entirely when displayed to other readers, actually changing the meaning of sentences. As a result, person A's post becomes even more inflammatory and libelous to person B, who sues.

    In each of these cases, the platform has omitted information (and they're not compelled to allow all posts, right?) but by omitting information the platform has exerted editorial control of the conversation and changed the meaning.

    In case 1, the conversation occurs over multiple distinct units ("posts"). By banning a following-up post, the apology has been not posted (or shadowbanned, which is worse because person A believe they have sent an apology without realising person B can't see it). As such, the conversation has been shaped by the platform's decisions. How is the platform not in some way responsible for subsequent legal action, given they had a hand in shaping the conversation?

    In cases 2 and 3, the distinct unit is now "words". Replacing a word with a visible marker "****" makes it clear a modification has occurred, but not what the original word was, thus distorting the meaning. Omitting a word (or worse, shadowbanning a word) distorts the meaning but does so silently. Again, how is the platform not in some way reponsible for shaping the conversation?

    Is it valid to do this per post, but not per word? If so, why? Where's the dividing line? If it's valid to omit individual words, or posts, or any unit of division in a conversation, then how is the platform/facilitator not also a publisher/creator of meaning? Editorial control amounts to authorship.

    Now scale up the units of conversation, instead of omitting words, sentences, posts we now omit news articles and interviews. During an election. If platforms (being companies or being run by individuals) are allowed to have an opinion (and the first amendment seems to say the government can't interfere with such opinions), the platforms can shape conversations on their platforms any way they wish. Nothing compels the platform to host content they do not want to host (including down to individual words). But does that not consequently mean the platform is exerting editorial control and thus is acting as co-creator of the conversations it hosts?

    Please consider and discuss.

  • Nov 17th, 2019 @ 6:17pm

    API analogies

    API stands for "Application Programming Interface".

    The Java math classes are a good way to explain what a Java API is: it's a collection of names of functions (also known as methods), such as sin, cos, tan, including how to call those functions (function call signatures, specifying the objects involved which in this case are numeric types), as well as constants like pi.

    The crucial thing is an API is those lines which specify only the interface. Those lines do not tell anyone how to implement any of these functions. They only list the input and output of each function, plus any constants you might need to use them. The purpose of the API is to act as a contract which tells software how to interact with a piece of software.

    One analogy to an API might be the shape of an electrical socket. This specifies what can plugged in, but does not specify how the generator makes electricty, and does not specify how the appliance uses that electricity. These interfaces are standard so many devices can interact safely, and people can choose what they plug together freely. Like an API, an electrical socket is merely an agreement about how things will connect.

    Another analogy is that an API is like a menu in a restaurant. It lists the things you can choose, but doesn't specify the exact recipe that will be used to fulfill your order. Like an API, a menu lists certain things but leaves the implementation up to the creators behind the scenes.

    Another analogy is that an API is like the steering wheel and dashboard in a car. Many cars can share a similar appearance of their controls, so that drivers can use many cars. This is a feature. Like an API, the design of a car's controls is used to interact with a machine, but on its own it is not the machine, it is merely the way to control that machine.

    Allowing copyright on electrical socket design would not promote safety or interoperability. Allowing copyright on menus would not help people order food and would not help restaurants clearly specify what was on offer. Allowing copyright on dashboards would not help people learn or use cars. Allowing copyright on APIs would not improve the safety, security, or interoperability of software.

  • May 2nd, 2019 @ 7:12am

    Re: Re: API is interface, not implementation

    I'll reply to this statement more directly:

    Is it true that an API is merely a collection of very many such functional definitions? (a curated list of your favourite recipes) Might that length have an impact on copyright law? (substantial novelty)

    Although I have a different idea of what an API is (since I believe the term is wide enough to encompass even a single function declaration), the important point in the above quote is the term "curated list", in particular the word "list" (I would actually use the term "index" or "table of contents").

    All analogies can be fraught, but let's go with a recipe book analogy, in order to examine why the term "recipe" is incorrect. A single recipe is a procedure for making something happen. It's like an algorithm in computer terms. A recipe is thus very much like an implementation. However, the name of the recipe is its API, its functional declaration. Just as "Salmon Salad" give you an idea of what the recipe might entail without telling you the details (the specific recipe), so too does the function name CalculateCircumference reveal something about what that software function might do, without really telling you the implementation.

    If we're talking about a "curated list of recipes", that is a larger API that is akin to a recipe book's table of contents. You might say a recipe book is large and inventive and is deserving of copyright, and fair enough, but what of its table of contents? Does having all the fish recipes listed before the poultry with the desserts at the end of the book constitute sufficient novelty to be deserving of copyright protection? What of having "Salmon Salad" right before "Crab Soup"? Should a cookbook author be able to sue any other cook who writes a cookbook having identically named recipes in the same order (despite the actual recipes being different) just because the table of contents can be copyrighted? Because to me that's what the Oracle ruling seems to boil down to (please excuse the pun).

    The table of contents of a recipe book is like the API, but the implementation is the actual recipes. Google took the Sun Java APIs (freely given away by Sun) and implemented their own recipes behind the scenes. But for the sake of interoperability, they used the same recipe names, in the same order. They copied the table of contents, but invented their own recipes within their recipe book.

    The question of whether the length of a list should impact the copyrightability seems to me to be the wrong question to ask. There is a difference in copyright law between the idea and the expression of the idea. In theory, copyright should cover only an expression, not the idea itself. An API is, like a table of contents in a recipe book, merely a collection of ideas albeit in a specific order, whereas it is the implementations, the recipes, that are the expressions of those ideas. This distinction between API and implementation mirrors the distinction made in copyright law between idea and expression, so it seems to me APIs shouldn't be copyrightable any more than ideas should be, and thus that's the correct place to draw the line between what is and isn't copyrightable: between the interface(API) and the implementation.

  • May 2nd, 2019 @ 4:12am

    Re: Re: API is interface, not implementation

    It's a valid question, and I think in the case of Oracle the appeals court did indeed buy into the argument that a large collection and arrangement of these small APIs did amount to something creative therefore deserving of copyright protection.

    I'm not trying here to argue there is no creativity in such work. There's some creativity in designing a power socket, for example. Rather, I'd say the interoperative purpose of specifying such machine interfaces means that we as a society should not allow copyrights to be placed on them, because there is an overriding value to the public in allowing multiple implementations and in allowing interoperability.

    Software is often akin to a machine in that is has functions and must connect to other pieces of hardware and software to operate. Software is a functional piece of many machines. Sometimes it is also artistic or entertaining in nature, but for now let us just consider the more machine-oriented uses of software. Things like a database being a tool to store and retrieve data, or an operating system or hardware driver or a programming language that allows your computer or phone to run. This kind of software clearly must move data around, and operates rather like a machine.

    An electrical analogy may be useful. A single function's interface is an API, and I've used the analogy of a single power socket. There's a little creativity there. A collection of function interfaces is also an API, just a larger one. Think of a collection of mathematical operations for doing trigonometry, e.g. sine, cosine, etc. The electrical analogy might be a power board with many sockets arranged with switches and a power light. You might say there's more creativity there, because there's an arrangement of smaller APIs into a single, bigger API. The question is at what point should we say "this collection now meets some criteria that mean it now can be owned by only a single company, rather than being available to all?"

    As an engineer, I'd like a clear line to be drawn so I know where that line is. I don't think the law can or will supply such a clear line. That creates risk for companies and individuals in implementing any software. I think that lack of clarity is to the net detriment of society.

    I think there is a clear line that can be drawn in many cases between API interface, and implementation. The API is the name of the function (with some input/output specification), whereas the implementation does the work. It's long been accepted in the industry that the implementation can be subject to copyright, but the present dispute is about the widely held belief that APIs were not copyrightable, when now it seems some US courts may hold otherwise. Google acted on that widely held belief and got burned, but this is surprising to many in the industry. It upends entire industry wide practices such as clean room reverse engineering, for no clear benefit. Reverse engineering allows companies like AMD for example to use the same silicon chip instruction sets, so as to compete with the likes of Intel and NVidia (which promotes competition via different implementations).

    Here's a car analogy: An individual API might be the shape of a steering wheel. Another small API might be a gear change stick. Another might be a pedal for the brake, and another pedal for the gas. Put these things together and you have a larger API. You might say that's more creative. Let's say Benz invented that. Allowing copyright on that larger collection would force other car manufacturers to do one of two things: either pay Benz a licensing fee (perhaps until the end of time) to use the same arrangement, or else each car manufacturer must invent their own unique arrangement of controls, and possibly even their own kind of controls too (think hexagonal steering wheels or joysticks in some car models). I argue both outcomes are not useful in the long run to society, and we should curb copyright at the interface.

  • May 2nd, 2019 @ 1:12am

    API is interface, not implementation

    The distinction between interface (API) and implementation is vital to understand.

    An API is an interface. An API merely specifies how to connect to an implementation. It's the implementation that actually does the work.

    Consider a wall socket. The shape of the wall socket is the interface. It's not the power generator. It doesn't do the work. It's just a standard shape so various appliances can use it. That's essentially what an API is.

    Consider an API for discovering the current date. Here's one I've just created (in the C language):
    void get_date(int year, int month, int *day);

    That API specifies a way to call a function and get back some data, in this case three integers specifying the year, month, and day numbers. Note that the API doesn't specify how the data is obtained or calculated (that would be the implementation's job behind the scenes). The API is just an agreed interface that some calling code could use to get the data. It's akin to the shape of a particular wall socket.

    By comparison, the implementation is the guts of the code that resides behind the scenes. It does all the heavy lifting. It might do things like obtain from the hardware the number of seconds since January 1 1970, compute when leap years have happened, divide the number of seconds by 60 a few times and by 24 and so, to finally work out the current year, month, and day. You can see that's the real work the function does. The API is just the simple one-liner that you can use to call on it. Another anology is that the API is the hyperlink, but the implementation is the actual web page.

    Suppose Oracle has copyright on the abovementioned date-getting API (I am supposing for the purpose of argument that copyright in API is possible, which is debatable, and which I think does not exist in Europe for example). Such a copyright would cover all possible implementations that could exist behind the scenes, because the copyright says you can't even use that API without getting permission from Oracle. That would preclude anyone making a different implementation without calling it something else.

    In practice this means when Apple goes to implement such a function, their API must be different, e.g.
    void getDate(int &day, int &month, int &year);

    This leads Google to make their own API:
    struct Date {int year; int month; int day; } DateGetter();

    And so on and so forth. Mindless variation just to satisfy a copyright ruling. There's no value in such a copyright on API for the public, only for a specific company. But actually, it just means everyone rolls their own APIs all the time, and there are no standards, and that'll just lead to more security bugs.

  • Apr 2nd, 2018 @ 6:54pm

    Algorithmic art

    Considering a different, extreme case, that of deterministic algorithmically-generated artworks (e.g. fractal art), I can see an argument that all the creativity is in the algorithms, and so the owner/operator would have no claim to copyright in the resulting images, whereas the programmer might have some claim. If I create a program then open source it, many people around the world could use it to generate identical artworks, but those people can't all have copyright to those same artworks when the source is ultimately the same program and the same algorithms. So I can't see how an owner or operator of a program can hold copyright unless there was some creativity added that makes their results distinct.

    In the case of Google Clips, the operators do choose different locations to place the camera, but that seems very thin (creatively-speaking) compared with the decision-making algorithms used onboard the camera. So it seems Google would have a stronger claim to copyright (if any exists at all) than the owner or operator.
  • Mar 29th, 2018 @ 4:04pm

    APIs are thin

    From the point of view of a software engineer, the law should provide clarity and consistency. Unfortunately, the CAFC's recent rulings on API copyrights fly in the face of decades of established practice in the industry relating to compilation and linking, and make matters very unclear.

    APIs are thin. They are close to being pure lists of facts, rather than creative expressions. They list the functions that exist in certain modules or classes or other collections of software, and numbers and strings used to communicate with those functions. In a sense they document the protocols used for plumbing data around in a program, like a communication standard. They're thin in the sense they are functionally required for talking to software, like a hyperlink or an address. But they are also thin in the sense that many other similar APIs probably exist in competing contemporaneous software products.

    Java wasn't created in a vacuum, it was a collection of what its creators considered best practice at the time in the 1990s, and as such drew on practices seen in other similar languages and software. For example, the C and C++ programming languages had the practice of storing mathematical functions in a math module. The APIs for the math module are listed in the C math.h or C++ cmath header files. These contains lists of the functions involved, such as sin, cos, tan, log, etc as well as numerical constants like pi, e, and so on. The math module can be linked in by telling the compiler to do so, for example by adding the -lm flag when using the gcc compiler. Java has a similar arrangement of mathematical functions and constants, using similar names and grouping, but it was written down several years after C and C++ did so.

    If there is any copyright in Java's math APIs, who would actually hold that copyright? Why would Oracle hold any copyright on lists of mathematical functions and constants when it's so similar to what other languages like C and C++ had done before? This is one reason APIs are thin: if they have any copyright at all, establishing what it is about them that is worthy of copyright requires analysis of contemporaneous and pre-existing software to see what is unique or different. If it's all so similar to what already existed, it follows that there can't be much that is worthy of a new copyright. Needless to say, requiring such legal analysis is rather useless to a software engineer who just wants to get on with the job.

    If there is something new in the way Java listed its API functions, to a large extent that may have been dictated by the design of the language. Java requires things to be listed in classes, where other languages like C and Fortran would not. Java has function overloading and can thus list multiple versions of math functions, such as having a sin(double) function and a sin(float) function which both use the same name but differ on their arguments, whereas C requires a sin(double) function and a differently named sinf(float) function because C requires all functions to have unique names. In this case, it's not that Java has done something creative with its API naming, it's that Java had a technical improvement over C's limitation which allows Java to more closely follow existing mathematical conventions. This improvement (function overloading) is an idea that C++ used in the 1980s and which probably existed earlier. It can't be said to be an invention unique to Java.

    I wouldn't say that Java plagiarised the design of APIs or features from other programming languages, because it was and is standard practice in the realm of software engineering to employ ideas that are good no matter where they come from, as long as they produce well engineered products. The idea of collecting similar functions into modules, such as the math module, is an idea that can't be said to be owned by any one language. The fact C was doing it before Java doesn't mean the creators of C own the idea. Ideas can't be owned. Collections of facts, such as listing the functions in the math module, shouldn't be able to be owned either, and especially since such knowledge is a functional requirement needed to allow programs to compile and link with the correct modules in order to operate.

    Where there might be "creativity" in Java's APIs, I would argue it is arbitrary. The fact that a Java programmer named a math function divideAndRemainder(BigInteger) is partly dictated by the Java coding standard (which instisted on using mixedCaseNames), partly required because Java lacked the C++ feature of operator overloading which might have allowed mathematical operators to be used instead, partly due to existing terminology, and partly based on the programmer's whim. Is that the "creativity" Oracles is asserting in court requires copyright protection? Or is it the "selection and arrangement" of those mathematical functions, which is very similar to the selection and arrangement in pre-existing software such as C and C++ and also to existing terminology? All of these pre-existing sources should surely count against Oracle.

    If, as the CAFC asserts, there is copyright in Java's APIs, this kind of similarity analysis of pre-existing software would be needed to evaluate exactly how thin are Oracle's copyrights. Otherwise, Google could be made to pay damages to Oracle for copyrights Oracle doesn't actually own.
  • Mar 27th, 2018 @ 5:07pm

    APIs are plumbing

    As a software engineer of many decades, and a Ph.D. graduate in computer science, I find the lack of understanding of APIs disturbing. An API is an interface, just like the shape of the holes in a power socket, or the size and shape of a bolt connecting a car's engine to its wheels. It's a means to an end. It's generally not an enormously expressive and creative piece of work. Rather, it's a necessarily functional interconnection which enables a machine to be plugged together.

    Elsewhere some programmers have mentioned "int round(float)" as an API. That is an API for rounding a fractional number, and it's a trivial case of someone writing down in a computer language a mathematical function that mathematicians have been writing or describing for centuries, using various words and symbols. Should the mere act of writing it in a computer language as opposed to a spoken language cause that line to gain or hold copyright? To me that's like saying a verbal description of a hex bolt, written years ago, holds no copyright, but a CAD drawing of a hex bolt does, or that the physical item does. For the sake of interoperability, I believe such physical items have traditionally not held any copyright. They're functional parts of a machine, despite any creativity involved in their design. Furthermore, such single API lines are often so trivial that it's hard to see how any copyright could exist in them.

    As far as I remember, Oracle wasn't so much claiming that a single line of an API on its own should hold copyright, but rather that the "collection and organisation" of several such lines should hold copyright. APIs are often grouped into modules or classes, so that, for instance, several mathematical functions such as rounding and truncating fractions, square roots and exponentiation and logarithms, etc would all be placed into a Math module or class, while reading and writing files would be placed in a File module or class, and so on. The particular arrangement is somewhat arbitrary, but it may be necessary for a competitor to duplicate that arrangement exactly for interoperability. I believe this is what Oracle was claiming involved some creativity and was therefore due some copyright protection. To me, that's like arguing that putting the carburettor on the left side of the engine and affixing it with hex bolts is a creative choice that no competitor should be allowed to replicate. Yes, the particular arrangement had to be creatively arranged and functionally designed, but for the sake of interoperability with competing manufacturers, copyright should not extend to such interface designs. If it's truly innovative, that's what patents are for. If not, it's just plumbing.

    From the point of view of a software engineer, APIs should clearly not hold copyright, any more than a hex bolt should, or an electrical wall socket specification should. I wonder how lawyers, arguing from a dry set of rules, can justify that their pronouncements are valid when they seem so divorced from industry practice. Ultimately, their motivations need to be understood to see why they're pushing the particular interpretations they're asserting. I think this sentence speaks loudly to the CAFC's concerns: "allowing this one factor to dictate a conclusion of fair use in all cases involving copying of software could effectively negate Congress’s express declaration... that software is copyrightable." I can see how the inability to perceive the differences between interface and implementation could lead someone to worry that allowing copying of APIs could unravel the whole copyrightability of software. But there's a clear difference! The implementation specifies what work actually is done, whereas the API is just a way to interconnect that implementation with the rest of the program, and does not itself do the work. As far as I can see, Google did exactly the right thing that has been done many times in the computer industry: a clean room implementation. Copy the APIs, but not the rest of the code, then write your own code implementations which match that API. Either that long-used practice is allowed (good for competition and interoperability), or it is not (protectionism means preventing customers from shopping around). The CAFC seems to be coming down on the wrong side here, and should instead be focussing on defining that distinction between interface and implementation.

    I note that Europe explicitly went the other way at the time of the first trial and decided that APIs are not copyrightable. This seems like the only sane solution. At this point CAFC has steered the argument into nonsensical territory and is busily arguing about fair use, whereas APIs on their own should not be copyrightable (and aren't in other parts of the world). In a juridiction where APIs hold copyright, fair use must be the end result. The alternative is that every car and tractor manufacturer can design their own specially shaped bolts and creatively designed APIs to lock out competitors and prevent owners and users from shopping around for after-market parts or using independent repairers or doing self-repair. That's a land-grab from manufacturers attempting to use software as a way to extend monopolies indefinitely. If the law fails to adequately specify the limits of copyright as it applies to machines (and software ultimately is a functional part of a machine, or it has no purpose), then fair use rulings must be the result, to protect competition and the established practice of clean room reimplementations.

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