Summary: Challenging the clueless ruling from the Court of Appeals for the Federal Circuit in the United States (very pro-software patents and anti-computer science), notable programmers write to the highest court
The SCOTUS and CAFC don’t often agree about patents. One possible (and commonly named) explanation is that the CAFC is inherently corrupt after patent maximalists got hold of positions of power, whereupon hid their conflicts of interest. CAFC, especially in its current form, should not be allowed to exist. It’s rogue.
Ruling in favour of Oracle, CAFC recently made copyrights on APIs a dangerous precedent and computer scientists are rightly fuming, seeing how a bunch of ignorant lawyers make a mockery of anyone who understands how computers work. As IDG put it:
Computer scientists have asked the U.S. Supreme Court to reverse an appeals court decision that Java APIs, the specifications that let programs communicate with each other, can be copyrighted.
In a dispute between Oracle and Google, the 77 scientists argue that the free and open use of the application programming interfaces has been both routine and essential in the computer industry since its beginning, and depended on the “sensible assumption” that APIs and other interfaces were not copyrightable.
“When Google wrote its program-interface (API) for Android, the company made a strategic decision to mimic the method call structure of Java,” writes Dennis Crouch under a misleading headline. “In the Copyright [CAFC] lawsuit,” explains Crouch, “the district court held that the API method headers were not protectable under copyright. However, the Federal Circuit reversed on appeal — finding the Java API taxonomy copyrightable as a whole. In particular, the appellate panel led by Judge O’Malley rejected the idea/expression merger doctrine since there are many other ways that functionally equivalent method-calls could have been constructed besides those found in Java. “Merger cannot bar copyright protection for any lines of declaring source code unless Sun/Oracle had only one way, or a limited number of ways, to write them.””
Anyone with a bit of a clue about programming (which makes about every patent lawyers or judge unsuitable to comment) can say that this is a ridiculous case with pretty much no basis at all. Many famous computer scientists have already written to the Court about this. As TechDirt put it:
Perhaps the most interesting was put together by the EFF, and was signed by 77 computer scientists, including many of the most well-known and most respected computer scientists around, including Hal Abelson, Brian Behlendorf, Ward Cunningham, Peter Deutsch, David Dill, Dave Farber, Ed Felten, Mitch Kapor, Alan Kay, Brian Kernighan, Guido van Rossum, Avi Rubin, Bruce Schneier and Bjarne Stroustrup among others. There are a lot more, obviously, but those were just a few of the names that stood out.
Perhaps realising that fellow OIN members and Android users can attack Android itself, Google has meanwhile signed this defensive deal with LG:
LG Electronics and Google sign a 10-year cross-licensing agreement that gives Google access to wearable device patents while encouraging LG to continue marketing Android mobile devices.
Android is by far the best selling platform right now, so no wonder it comes under fire. Since it is inherently Open Source (AOSP) and even Free software for the most part (it uses and contributes to Linux), we do care about this case a great deal and will keep on following it as a matter of priority. █
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Image from Wikimedia
Summary: Microsoft collusion with patent extortion (as in the early days of the Microsoft-Novell deal) continues to this date, reveals Samsung
MICROSOFT must be in a state of panic. It does irrational things, like a stranded criminal. Microsoft's lie about 'loving' Linux was facing sheer resistance from FOSS luminaries because the lie is just outrageous beyond words]. It is the very inversion of the truth and it is as ridiculous as saying that BP loves Shell and Shell loves BP, to give just one hypothetical example. It makes no sense at all, so why does Microsoft bother trying?
This new article titled “Samsung says Microsoft deal invites ‘charges of collusion’: filing” has been rather fascinating. Microsoft is apparently ‘loving’ Linux so much that it colludes against it. Well, will Nadella go to prison? Bill Gates and Steve Ballmer perhaps? What silly questions! Rich people don’t get sent to prison for rich people’s (white-collar) crimes. Microsoft pretends to “love” Linux while quite clearly attacking it, still. Android uses the Linux kernel, just as a reminder.
“This is beyond extortion. It’s an antitrust violation and even collusion/corruption.”To quote the article: “Samsung said its collaboration with Microsoft on Windows phones raised antitrust problems once Microsoft completed its acquisition of Nokia’s handset business, according to a court filing.”
So here we have a criminal company using collusion and abuses under the guise and cover of NDAs. As SJVN put it in his blog: “Samsung fires another shot at Microsoft in Android patent battle”
SJVN’s argument is that “[t]his move came as no surprise to lawyers who’ve been following the case. One intellectual property (IP) attorney whose firm is covering the case closely said that Samsung is simply adding another argument to their contention that their existing Microsoft Android patent deal is invalid on business contract grounds.
“According to Reuters, Samsung said it agreed to pay Microsoft Android patent license royalties in 2011, but the deal also stated that Samsung would develop Windows phones and share confidential business information with Microsoft. If Samsung were to sell a certain number of Windows phones, then Microsoft would reduce the Android royalty payments.”
This is beyond extortion. It’s an antitrust violation and even collusion/corruption. Will criminal charges be brought against anyone? Will anyone in government bother trying to press charges? Not likely.
As Mr. Pogson put it the other day, Windows is in very serious trouble and therefore Microsoft is too. GNU/Linux, on the other hand, keeps growing, especially in smaller devices such as phones and tablet, notably owing to Android. To quote Pogson’s conclusion:
So, XP is dead, “7” is dying, “8” is a zombie, and “10” is vapourware with nowhere to call home. M$ continues layoffs. POOF! It all falls down. In the meantime Google and the OEMs will crank out many millions of ChromeBooks. Canonical, Linpus, RedHat, Suse… and the OEMs will crank out many millions of GNU/Linux PCs. Several OEMs will crank out many millions of GNU/Linux thin clients. Android/Linux will reverberate with another billion or so units of small cheap computers(tablets, smartphones). This looks like good news to me.
Yes, well, Microsoft too realises that Linux is winning, so it is left with either the option to demonise it or to monetise it, e.g. through hosting or patent extortion. In a sense, Microsoft needs Linux more than Linux needs Microsoft. Linux needs none of Microsoft. All that Microsoft does is commit crimes against Linux, so Linux proponents can only hope for total elimination of Microsoft.
There are layoffs at Microsoft, as Pogson pointed out, and this includes salespeople. To quote Value Walk: “According to knowledgeable sources who spoke to Business Insider on Friday, October 31st, Microsoft Corporation (NASDAQ:MSFT) is laying off its entire global advertising sales team. The reduction in force comes as the ad sales positions have become largely redundant as individual divisions are handling their own ad sales today.”
Here again we see that these layoffs were not about Nokia. Microsoft tried hard to paint that sort of picture to save face.
When it comes to Microsoft, the more layoffs, the merrier. This company destoryed many jobs using its crimes and these sorts of crimes clearly continue to this date. In a sense, GNU and Linux won’t be safe until Microsoft is totally gone. █
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Summary: Bill Gates may finally be pulled into the courtroom again, having been identified for large-scale abuses that he commits in the name of profit (not “charity”)
THE Gates Foundation is run and controlled by a rude and arrogant sociopath masquerading as a “philanthropist”. Based on the latest news [1, 2, 3], he doesn’t like his next-door neighbours in the US and does not obey the law (he is facing fines for it), so what chance is there that he will like some strangers in a place like Africa or India and and that he will ever obey African or Indian laws? He keeps getting richer every year, but much of the press (part of which he bribes) portrays him as a giver. Bribing politicians and newspapers is not “charity”, but when you pay the newspapers they might as well paint it as anything that suits them. Besides, it’s common to just call the “bribes” something like “campaign contributions” (among other euphemisms) to make it seem lawful, ethical, and acceptable.
Earlier this year a publication that had been bribed by Gates finally dared to criticise him for something. It mostly stopped doing that after he had bribed it, so this was the exception. But it was a flawed critique. It should already be broadly and widely understood that Gates uses ‘charity’ for tax-free investments in dubious work that requires, for example, high-risk clinical trials, casting it “charity”. Making it look like “charity” has the benefit of not having to operate like a standard business and be subjected to the same rules/laws. The Gates-bribed publication correctly pointed out that Gates was “boosting his fortune by another £9.6bn last year,” but it neglected to say he he avoids paying tax. Instead it focused on Microsoft and other companies. Here is a half-truth (or half lie): “Gates says he pays his personal taxes. Great.”
No, he doesn’t.
He puts it in a shell that helps him evade tax. A shame really that writers cannot see something so obvious…
The writer carries on: “But he made all that money from Microsoft which, like other tax-avoiding technology giants such as Amazon, Facebook and Google, uses sophisticated systems to shift paper profits around the planet and evade the designs of governments.”
This is another half-truth (or half lie). Gates actually makes a lot of his money not from Microsoft but from investment in very controversial companies that greatly harm society. We gave dozens of examples over the years.
The author continues: “Indeed, so extreme are its methods the company was used as a case study in a Senate investigation into US corporate tax avoidance, which found one example of offshoring profits through a tiny Puerto Rico office alone saved it $4m a day in taxes.”
What about the (mis)use of charity to evade tax? Well, a Gates-funded paper would not want to mention that. Here comes some shameless fawning: “Gates has every right to do what he wants with his wealth. It is to his credit he is giving away so much, persuading other billionaires to do the same and championing causes close to his heart – although as others have pointed out, even this is not immune to tax advantages. His determination to push vaccinations and prevent malaria is laudable. But if he wants to discuss development, preach about poverty and tell nations how to spend taxpayers’ money, he should put his own house in order first.”
What a complete hogwash. There are so many factual errors in this paragraph. It’s purely marketing garbage and those being lured to read the article are going to end up indoctrinated and brainwashed, as if Gates is some kind of “saint” and the “evils” are just some large corporations that people supposedly envy (and it should be noted that Gates remains deeply involved in the law-breaking Microsoft that’s as criminal an entity as ever before). Not only Microsoft dodges tax, Bill Gates does too. To make matters worse, he exploits poor people to make even more money whilst avoiding tax. Microsoft puts offshore billions of dollars to avoid tax and Gates dodges taxation by pretending that his business is a “charity”.
“The trial is years overdue and possible belated to the point where irreversible damage is done.”Just how much of a “charity” is the Gates Foundation? Well, today we’ll turn our attention to some recent news.
Some years ago we wrote about children dying in India after Gates had experimented on them. GlaxoSmitheKline was involved and remember that GlaxoSmitheKline is very much connected to Gates in numerous ways. Well, back in August in the corporate Indian media there was this article which said: “Earlier this month, taking a serious view of the death of seven tribal girls in the context of the observation studies, the Supreme Court asked the Drug Controller General of India (DCGI) and the Indian Council of Medical Research (ICMR) to explain how permissions were given.
“The SC bench of justices Dipak Misra and V Gopala Gowda asked the Centre to produce relevant files that pertained to the grant of licence for trial of the HPV vaccine in India. The court also asked the Centre to appraise it of steps taken on the report of the parliamentary committee.”
Suffice to say, the Gates apologists are trying to paint this as the anti-vaccine movement with its claims of conspiracies to infect/sell. But the truth may be somewhere in between. What we saw in India was a clinical trial with low risk of litigation (for example in case a subject dies). As Andrew Powell from Wales pointed out in the comments: “‘A wise dog never poops on his own doorstep’. A man, known for his philanthropic and ethical character, finds it essential or preferable for his American company to guinea-pig his new drugs on people living on the other side of the world. What made him rule out testing it on Harvard Sophomores?”
This is like in the movie Constant Gardener, which is a very strong movie with a long-lasting impression to be left (based on my own experience and others’).
The corporate media us usually too shy to touch such a topic because of the anti-vaccine hysteria that’s often so irrational or taken out of context where concerns are more or less valid. Based on the article above, the “committee found that the objective behind the observation studies in India primarily was to collect and record data on the effect of the vaccines on the minor subjects.”
So, it was after all a clinical trial. Unbelievable. How can Gates and his corporate partners get away with it? The legal challenge/potential trial is years overdue and possibly belated to the point where irreversible damage is done. Here is what Activist Post wrote about this along with other sites like Natural Society:
Furthermore, though absent from most mainstream U.S. media outlets, the Economic Times of India published their report in August 2014, stating that young tribal girls were tested with HPV vaccines. This involved not a handful of children, but 16,000 individuals in Andhra Pradesh, India, where they were given the Gardasil vaccine.
KP Narayana Kumar reported that within a month of receiving the vaccine, many of the children fell ill, and by 2010, five of them had died. Another two children were reported to have died in Vadodara, Gujarat, where another 14,000 tribal children were vaccinated with another brand of the HPV vaccine, Cervarix, manufactured by GlaxoSmitheKline (GSK), who incidentally, has been accused of dumping polio virus into a Belgium river.
Consent forms to administer the HPV vaccine were ‘illegally’ signed by wardens form youth hostels, showing that the Gates’ prey on the indigent without parents. For those who had parents, most were illiterate, and the true potential dangers of the vaccines were not explained to them.
SAMA, an organization in India which promotes women’s health discovered this insidiousness, and reported it, but only now will Gates and his cronies have to answer for their misdeeds. Approximately 120 girls reported epileptic seizures, severe stomach cramps, headaches, and mood swings, of those who did not die. Other girls receiving the Gardasil vaccine have experienced infertility.
To truly understand what Gates is doing here one can rent the movie The Constant Gardener (2005). It is tough to watch, but there is an educational angle/value to it. This whole thing is despicable and it helps show that Gates is above the law, internationally. He sort of “harvests” the world’s poorest people in his ruthlessly capitalistic aspiration to enhance his political power and increase his wealth. Expect Gates to pull some political strings to pull out of this court ‘nuisance’. The rich are above the law when they can typically just pay their way out. Remember that Gates was arrested as a teenager and freed on bail because his father was very affluent; this was not the last time that Gates got out of trouble with the law just because he was wealthy. It’s a systemic problem and a relatively poor country like India is unlikely to be potent enough to convict Gates. It did, however, find Microsoft guilty for tax evasion. That was over half a decade ago. █
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Photo from Reuters
Summary: A long series of abuses in CAFC may as well suggest that this court has become broken beyond repair
THE Court of Appeals for the Federal Circuit (CAFC), a corrupt court which brought software patents to the world some decades ago, is seriously considered rogue and some are calling for it to shut down.
Mike Masnick names another reason to shut down CAFC: “Back in 2004, when I first read the book Innovation and Its Discontents, I was convinced that the Court of Appeals for the Federal Circuit, better known as CAFC, or the “patent appeals court” was a huge part of the problem with the patent system. It was the special court that had been set up in the early 80s to handle all patent appeals, based on the totally misplaced notion that because patent issues were so technical, regular appeals courts wouldn’t be able to handle the nuances. What we got instead was a court that became “patent specialists” in that they spent much of their time with the patent bar — who tended to be lawyers who profited handsomely from an ever expanding patent law. It didn’t help that one of the original CAFC judges was Giles Rich, a former patent attorney who almost single-handedly wrote the Patent Act of 1951. Rich more or less made it his lifetime goal to expand the patent system to cover “everything under the sun made by man,” and he came close to succeeding.”
The article is titled “CAFC: The Rogue Patent Court, Captured By The Patent Bar, Needs To Go Away” and it very much reflects on what we see much of the time.
The numbers of controversies or corruption (as we have covered before) surrounding CAFC indicate that it should not be unthinkable or controversial to suggest shutdown. When is a court deemed “above the law”? █
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Justice gone backwards
Photo from Reuters
Summary: A patent case in the United States gets sent from SCOTUS to CACF, showing a rather odd hierarchy of justice (top-to-bottom, back to notorious patent boosters)
THE Rader corruption and the impact on CAFC was mentioned here just weeks ago, noting that the Court had been put under mortal danger (some people call for its abandonment/abolishment). This is the court which was responsible for software patents in the United States, home of software patents (universally). According to this update from the EFF, CAFC may actually have a go at overriding SCOTUS. As the EFF put it: “The Ultramercial case has been bouncing around the federal courts for years. In 2010, a trial court held the patent invalid on the grounds it claimed an abstract idea. On appeal, the Federal Circuit reversed, finding the patent non-abstract because it “clearly require[s] specific application to the Internet and a cyber-market environment.” The Supreme Court then sent the case back to the Federal Circuit for reconsideration. In a remarkable decision by former Chief Judge Randall Rader, the lower court thumbed its nose at Supreme Court authority and upheld the patent for a second time. The defendants returned to the Supreme Court. EFF filed an amicus brief urging the Court to take the case and find the patent abstract.”
The US patent system seem to favour those with money (for more motions and appeals), not those with original ideas. It is a real problem. Watch how the USPTO, led by corporate masters like IBM, stops beneficial products from reaching their full potential:
We’ve seen this many times before, how patents can hold back very useful developments. Notice how 3D printing is suddenly a big thing? It’s not because of any new miraculous breakthroughs, but because some key patents finally started expiring, allowing real innovation to move forward. We saw something similar in the field of infrared grills, which were put on the… uh… back burner (sorry) until key patents expired. Derek now points us to a similar example.
This article goes on to showing how microwaves got retarded by patents, and there’s no exception here. Patents just tend to harm innovation and those who promote them (usually lawyers) do a great disservice to society.
One day the patent system (if it still exists in its current form) might actually be reshaped by people representative of society, not patent lawyers. █
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The LLP echo chamber
Summary: Heaps of editorials and analyses from patent-centric firms pretend that nothing has changed after the Supreme Court abolished patents on “abstract ideas” (as opposed to working implementations)
POTENTIALLY substantial patent changes are afoot, especially owing to a decision from SCOTUS. A new article by Timothy B. Lee chastises this court for not understanding technology, which is a typical problem with judges. “The Supreme Court doesn’t understand software, and that’s a problem,” says Lee. “Patent litigation has become a huge problem for the software industry. And on Thursday, the Supreme Court could have solved that problem with the stroke of a pen. Precedents dating back to the 1970s place strict limits on software patents. The court could have clearly reiterated that those old precedents still apply, and that they rule out most patents on software.
“Instead, perhaps fearing the backlash from invalidating billions of dollars worth of patents, the court took an incremental approach. It ruled that the specific patent at issue in the case was invalid. But it didn’t articulate any clear rules for software patents more generally. In effect, the court kicked the can down the road, leaving a huge question mark floating over most software patents.”
SCOTUS can hardly distinguish between UML, pseudo code, and source code. The ambiguities left behind are already being exploited by patent lawyers and here is a new example from Akin Gump Strauss Hauer & Feld LLP, another from Sterne, Kessler, Goldstein & Fox P.L.L.C., and one from Choate Hall & Stewart LLP, to name just three (these flood the media these days, day after day). Well, at first came lots of media reports (written by journalists) declaring a lot of software patents dead and later came (and still comes) the flood of “analyses” by lawyers, rewriting the history to assure their clients that it is worth patenting software and that nothing has really changed.
In recent days we found more examples from Proskauer Rose LLP, saying that “Applying this rationale, the Court found that the claims at issue recited computer steps that are “purely conventional” and a “basic function of a computer.”15 The Supreme Court therefore affirmed the Federal Circuit and held the claims were ineligible under § 101.”
The SCOTUS decision was too weak in some sense and law firms are spinning it in their favour. Here is an example where the title says “Supreme Court silent on general eligibility of software patents” (not entirely true). Cooley LLP , Fenwick & West LLP, Seyfarth Shaw LLP and Lathrop & Gage LLP also try to assure their clients that patenting more algorithms is OK, as if nothing has changed. “Although the Court’s decision provides some clarity concerning the inventive effect of reciting computer implementation within patent claims,” says the last analysis, “there remains some ambiguity concerning how courts will define “abstract ideas” moving forward (indeed, the Court stated that it “need not labor to delimit the precise contours of the ‘abstract ideas’ category in this case”).”
Code is already copyrighted, so one might argue that patenting anything but code would be patenting “abstract ideas”. Suffice to say, this is not what greedy patent lawyers are going to tell customers for whom they produce useless papers that the USPTO almost blindly stamps for approval.
Patent lawyers continue to rely on the ignorance or gullibility among judges (who are themselves lawyers and are rarely technical enough to grasp programming). Perhaps any court that deals with patents should have an imperative to be technical. CAFC, for example, needs to be abolished for being corrupt and also utterly dumb on technology. █
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Summary: The Court of Appeals for the Federal Circuit’s judgments on software historically based on dogma and misunderstanding/misrepresentation/misinterpretation of facts, not adherence to rules, logic, or even public interest
NOW THAT Ballnux giant Samsung hoards more patents we should take a moment to remember that not all companies that are using GNU/Linux are actually friends. Even Microsoft claims to be embracing Linux in Android (through Nokia), but its intents are malicious, as we have explained numerous times before. Then there is Oracle, which joined Apple and Microsoft in hoarding Novell patents for malicious purposes. It also sued Google over Android and did some damage to Red Hat with Unbreakable, never mind all the damage Oracle did to Sun projects.
Deb Nicholson (FSF), writing for an established Web site, explained “How The Changing Legal Landscape Impacts Free And Open Source Software Development”. She correctly pointed out the following: “A patent is a limited monopoly granted for certain amount of time (20 years in many places) in exchange for full disclosure. Based on the description in the patent application, a person who is knowledgeable in that field should be able to recreate the invention. Patents used to be reserved for physical processes, new devices and sometimes a limited monopoly on a particular business opportunity. The scope of patentability has expanded in the last few decades and can now include software, as well as business methods and even certain medical procedures. The intent of patents is purportedly to encourage inventors to make investments and create new inventions that might have otherwise been too financially risky to complete. As soon as a patent expires the idea can be freely implemented by anyone.”
Patents, however, are no longer the only risk factor. Consider what the Court of Appeals for the Federal Circuit (CAFC) recently did. The FSF has just come out with this formal statement:
FSF statement on Court of Appeals ruling in Oracle v Google
The situation then is substantially similar to the situation today. The key difference is that some of Google’s affirmative defenses to claim non-infringement have been eliminated by this new ruling. The FSF now sincerely hopes for the next best thing to Alsup’s original ruling: that Google is successful in its fair use defense.
Notwithstanding our support of Google’s fair use defense, the FSF urges caution to all prospective Android users. Even though the core of the Android system is free, every Android device sold comes pre-loaded with a variety of proprietary applications and proprietary hardware drivers. The FSF encourages users to support the development of Replicant, a distribution of Android that is 100% free software. The FSF also encourages users of any Android-based system to install F-Droid, a free replacement for the Google Play app that allows users to browse, install, and receive updates from a repository of free software Android apps. Replicant uses F-Droid as its default repository.
Generally speaking, CAFC has been a sham for many years as it was also responsible for making software patents legitimate in the United States, before this trend/precedent spread to other countries. In 2012 it was points out that the court stood in the way of stopping software patents and a week or so ago TechDirt cited this article, accusing the person who did this in the court. As TechDirt put it: “Tim Lee recently got to talk to Michel following a talk he gave, and what becomes clear is that Michel is completely out of touch with how much of a problem patents are in the tech world today. Lee knows this subject better than probably anyone else, and when he tried to dig in on key points, it was obvious that Michel’s knowledge of what actually is happening in the industry is based on myths and imagination, rather than reality. For example, when Michel pointed out that he’s “a facts and figures guy” rather than one who focuses on “anecdotes and assumptions,” Lee quickly points to James Bessen and Michael Meurer’s comprehensive book on why patents hurt the tech industry.”
Lawyers defy logic.
Here is the latest relevant article about this, an article from TechDirt about CAFC:
For many years we’ve written about the serious problems with CAFC, the court of appeals for the federal circuit, which is better known as the appeals court where all patent cases go. CAFC was created in the early 1980s under the belief that a more “specialized” court could better handle the more complicated technical issues related to patents. But what really happened is that it basically built a club of patent-friendly judges, who spent nearly all of their time with patent lawyers, and thus took an increasingly patent-friendly view of the world. That one of the key original judges on CAFC was also a long-time well known patent lawyer who almost single-handedly wrote the 1952 Patent Act, seemed to set the tone that has remained throughout the court’s existence.
It is not unusual for this disgraceful court to do this type of thing. TechDirt also gave this other new example one week ago:
A few weeks ago, the Supreme Court smacked down the Federal Circuit (CAFC) for its made up rules that made it almost impossible to enable victims of patent trolls to get the courts to order the trolls to pay legal fees. As the Supreme Court noted, CAFC seemed to set up arbitrary rules for no reasons at all. And this is important, because courts almost never award legal fees, and with the untimely death of patent reform, hopefully this small change will at least help in the meantime.
Notice the tend. CAFC is a not a legitimate court, it has become a pack of software patents (and more broadly patents) boosters. Its latest judgment, as before, should be appealed and brought to SCOTUS, but this is expensive and can take years. █
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Lawyers deciding on technical issues
Summary: The Court of Appeals for the Federal Circuit (CAFC) shows us yet again that it does not understand technology and its latest ruling is harmful to the technical community
YESTERDAY we wrote about the menacing CAFC ruling, which basically throws a lot of FOSS under the rug (by extension) for it alleges that APIs are copyrightable and that their reuse does not qualify as fair use. We have already criticised CAFC for being very pro-software patents and for being utterly clueless on technical matters on numerous occasions, so the latest decision from it oughtn’t be so shocking. As Ars Technica put it, “Google, which said it was exploring its legal options, decried Friday’s ruling. The Mountain View, CA-based media giant said the decision “sets a damaging precedent for computer science and software development.””
Google is correct and it will hopefully appeal this decision. What we have here is misuse of copyrights, SCO style, by Oracle.
TechDirt posted the best rebuttal to this decision, attracting hundreds of comments and revealing a lot of holes and mistakes in CAFC’s ruling (the text). Here’s a sample:
Appeals Court Doesn’t Understand The Difference Between Software And An API; Declares APIs Copyrightable
We sort of expected this to happen after the appeals court for the Federal Circuit (CAFC) held its oral arguments back in December, but CAFC has now spit at basic common sense and has declared that you can copyright an API. As we noted, back when Judge William Alsup (who learned to code Java to better understand the issues in the case) ruled that APIs were not subject to copyright protection, his ruling was somewhat unique in that it was clearly directed as much at an appeals court panel who would be hearing the appeal as it was at the parties. Alsup rightly suspected that the judges on the appeal wouldn’t actually understand the issues as well as he did, and tried to break it down clearly for them. Unfortunately, the three judge CAFC panel did not pay attention. The ruling is so bad that legal scholars are suggesting that it may be as bad as the horrific ruling in the Garcia case.
As for the ruling itself… well… it’s bad. The court seems to not understand what an API is, confusing it with software functionality. It also appears to misread Judge Alsup’s ruling, thinking that he’s mistakenly using a fair use analysis to determine whether or not something is copyrightable. But that was not the basis of Judge Alsup’s ruling. He very specifically noted that the “command structure is a system or method of operation under Section 102(b) of the Copyright Act and, therefore, cannot be copyrighted.” The CAFC panel doesn’t seem to understand this at all.
It seems fairly clear that the CAFC judges don’t understand the difference between an API and software. And thus they make a decision that makes no sense. There is no distinction recognized when it comes to the functionality of an API and how it’s entirely different than the purpose of the software itself. This is especially clear towards the end, in which the CAFC ruling misrepresents some discussions on whether certain functionality is best protected by patents or copyright. But the problem is that they misinterpret statements people are making about APIs, thinking that those statements were made about software as a whole. This is just a flat-out fundamental misunderstanding of what an API is, assuming that it’s just software.
Note that “[software]” thrown in before interfaces? Google is talking about whether APIs — “application programming interfaces” — are copyrightable. Not whether or not software is copyrightable. And yet the CAFC doesn’t even seem to realize this. Ridiculously, CAFC then uses its own misunderstanding and misquote, and points to some of the (many) arguments where people argue that patents are inappropriate for software to dismiss Google’s argument about APIs. It honestly doesn’t realize that it’s comparing two totally different things. What lots of people agree on: software shouldn’t be patentable and APIs shouldn’t be copyrightable, but software can be copyrightable and API functionality may be patentable. But by confusing APIs and software, CAFC totally misreads both arguments.
This will probably go to SCOTUS next (unless they decline to weigh in), but in the mean time it spreads uncertainty and doubt, harming not only Free software developers but developers in general. As TechDirt put it, “CAFC has mucked up another form of intellectual property law through a basic (and near total) misunderstanding of technology.” █
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