Archive for the 'blawg' Category

Timeline of Oracle v. Google and the docket files

(This is an ongoing case and therefore this post will be updated along with the development.)

Issue: whether Oracle can claim a copyright on Java APIs and, if so, whether Google infringes these copyrights.

In order to allow developers to write their own programs for Android, Google’s implementation used the same names, organization, and functionality as the Java APIs.

May 2012, Judge William Alsup of the Northern District of California ruled that APIs are not subject to copyright: where “there is only one way to declare a given method functionality, [so that] everyone using that function must write that specific line of code in the same way,”

Oracle appealed to the ninth circuit. The circuit ruled in favor of Oracle in May 2014, finding that the Java APIs are copyrightable, but leaving open the possibility that Google might have a fair use defense.

Google filed a petition to the U.S. Supreme Court seeking review (on the issue of whether API is copyrightable) but failed. The case returned to the district court for trial.

In May 2016, a jury unanimously agreed that Google’s use of the Java APIs was fair use. Oracle appealed.

In March 2018, the Federal Circuit reversed the district court. The Court rejected the jury’s verdict (after previously saying that the jury had to decide the case) and held that Google’s use was not fair use as a matter of law. Google appealed to the Supreme Court.

This time the SC granted the cert. Oral argument is expected in March 2020, and a decision by June.

Documents in Docket:

Supreme Court (2020)

Oracle Brief (February 12, 2020)

Google Opening Brief (January 6, 2020)

Amicus Briefs

In support of Respondent

In support of Neither Party

In support of Petitioner

Cert Petition (2019)

Solicitor General Brief (Sept. 27, 2019)

Google Reply Brief (April 10, 2019)

Oracle Response in Opposition (Mar. 27, 2019)

Google Petition for Writ of Certiorari (Feb. 25, 2019)

Amicus Briefs

In support of Petitioner

Federal Circuit (2018)

Google’s petition for rehearing en banc (May 29, 2018)

Federal Circuit Decision (March 27, 2018)

Amicus Briefs

In Support of Oracle

In Support of Google

Federal Circuit (2014)

Federal Circuit Decision (May 9, 2014)

Remand

NDCA Order Denying Rule 50 Motions (June 8, 2016)

NDCA Jury Verdict (May 26, 2016)

Who Survived the Cinternet – Case Studies to Chinese Websites

Thanks for Professor Urs Gasser’s invitation. I am allowed to sit in his course of “Online Law and Business in a Globalized Economy” at Harvard Law School, and get an opportunity to present some understanding to Chinese websites. Because of the limited time slot, I just partly introduced the slides in the class. Therefore, here is a more comprehensive version for those who are interested in.

 

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Hillary Clinton said that “We stand for a single Internet where all of humanity has equal access to knowledge and ideas.” I love this vision, but it is not a truth of the Internet. 幻灯片2

It is untrue not only because the dicky openness of a specific network may be destroyed abruptly (The Internet access in Xinjiang, a northwest region in China three times bigger than Califonia, was simply cut out over 6 months after the mob riot and bloody fight between nationalities), but also because the essence of the Internet: It is inter-net, the Network of Networks. It can be described as an information transmission/communication network composed of many autonomous systems. ARPANET, MILNET, Cyclades (France) and NPL (UK) formed the first generation of the Internet (see the video). More autonomous systems then have been setup and joined the Internet – They joined the Internet by accepting the TCP/IP and other protocols. But this does not mean that they have the same policy on the authority to access and the attitude to the network security.

Similiarly, I name the concept of “Cinternet” to the autonomous network in China.  It could be isolated from the other parts of the Internet infrastructurally, linguistically, politically and even culturally. Recently, the trend of such isolation seems jumped from the level of technological blocking to the level of institutional denying. Contrast to Hillary’s vision, this seems to be an existence, no matter “bad” or “good”. It is there.

A Video on the History of the Internet [http://www.youtube.com/watch?v=9hIQjrMHTv4 ]:

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Google announced that it will not go on filtering the results of web search because it’s E-mail service is attacked. The logic is not that straight forward, but it works at least on emphasizing the not evil slogan. In my view, it is not only the said attacking, but also the anxiety of the culture shock lead Google’s activities. Google is still using its American imagination: fight or obedient, agree or disagree.

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Let’s back to the business. Google’s anxiety in China (as well as Yahoo!’s leaving) may be reasoned by the wrongful understanding to Chinese netizens’ demands and surfing usage, which reflect the Chinese culture and social structure.

Let’s start from a comparision between Baidu.com and Google.com:

Besides the advantage of focusing on the Chinese search engine, Baidu has the totally differenct philosophy from Google. Baidu runs pay for placement service (if you pay for some keywords, your link will be among the first few items of the search result of those keywords, with an “Ads” symbol), while google earns money mainly from Adsense (An Ads system automatically match the page). Baidu provides PostBar and MP3 dowloading as its killer applications, whereas Google develops its applications around the E-mail service (including Gtalk and Wave), which is the core of the US netizens’ online life.

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Google can hire people who understand Chinese culture. But with the strong value oriented mission setting atomosphere, Google’s headquater obviously often conflicted with its Chinese management team. The result is: Chinese Google (Google.cn) is separated from Google’s world, not because of the gov’s censorship, but because of the misunderstanding on what is a good, attractive and sustainable web service for Chinese customers.

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I wish the following websites may be helpful for understanding the unique enviroment of “Cinternet”. The first one is Tianya.cn. Tianya is the most popular and most crowded online forum in China. It’s traffic is ranked No. 90 in the world (Alexa). Click here for more.

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Tianya’s virtual community has a few unique features contributing to its flourish and survival: 幻灯片8

(1)  It has a huge group of volunteer forum-board masters who are in charge of deleting/hiding the defamatory, dissenting and – most specially – inappropriate posts. The board masters are mostly the famous IDs (in many cases most of users don’t know who the people is in real world), they are famous and reliable only because of their reputation established in Tianya.

(2) The un-deletable and un-editable mechanism. No one can delete/edit his/her own posts at the forum boards, even a board master can only manage the posts at his/her board – as a user in other boards, he can do nothing but posting new threads as a normal user. 

(3) If users think a board master is not appropriate, they may leave the complaint at the manage board – and if those complaints are reasonable, the higher webmaster may decide to suspend the board master’s authority – just like the mechanism of “petition” in China’s real life.

(4) Look at that strucutre map again. It’s “separation of the power” looks very like the actual life in China.

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Now this is QQ.comQQ.com is ranked the world 11th website on the matter of traffics (remember, the traffic among the QQ clients are not counted in). Contrary to Google’s matrix based on search engine and E-mail, QQ’s world is based on Instant Message. It is a close system, not providing open API.

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Taobao is not a Chinese Ebay. On the contrary, Ebay’s Chinese branch has been defeated by Taobao. See the above comparision. Alipay, Taobao’s payment tool, archieved over 1.2 billion RMB (171 million USD) of the value of transactions per day on Dec 7th 2009, among its over 200 million users.

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Named after a spice used in Szechuan cooking, Douban allows Chinese consumers to share, tag and browse through one another’s collection of books, music, and movies.

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The contents in Douban are mostly user generated. However Douban is distinct from Youtube: only comments to the items (books, movies and music albums) are posted on the website. In each item’s page, Douban provides the links to the online bookstores (including Amzon’s Chinese site). The prices are easily compared in an item’s page.

Douban’s biggest distinction from the SNS (like facebook) is: it is not a real-name network. Therefore, it is mainly not for social  and personal networking, but for public expression. Besides the review tab in each item’s pages, users can also establish groups and invite others join. There are thousands of groups and thousands of entries are posted every day. Because most users are in anonymous, discussions are very interest-oriented and open-hearted.

If there were no censorship, Douban might be a good platform to form a classic “public sphere”. However, douban enforces a very strict self-censorship policy. Any thread that may “threat the operation of douban in China” will be hidden (only the author can read). The groups include too much “in-harmonious” topics will be closed by douban’s staff – or be hidden and only the members of the group may read those threads. It is obvious that Douban’s operator does not want this websited be involved into any political debate.

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The above is a conclusion to the features of successful websites in China. Practcially speaking, these might be useful for those who wish to invest their money and energy into the Internet industry in China.

Back again to the overall abstract discussion, the world might be flatted by emergence of the Internet, but when more and more parts of this convergence of pink, blue, black or bloody world involve themselves into the Internet, the basic feature of the inter-net as a network of various autonomous systems may be at least continue to be a existence, if not a growing trend, in the new decade. And, with all due desire to the open and equal access to the Internet, I still doubt that the vision of a “single” Internet that believe people must love facebook, twitter and Google wave could be a realist approach to archive that aim.

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iPad is coming … Even in the same culture and society, Apple’s world can be so distinct from the PC’s world (they both connected into the Internet). Imaging how big distinction of the Cinternet’s could be.

Cyberpluralism?

I just read Tim Hwang’s essay on the “Berkman School”. It is very interesting although I am not a fan of categorizing “schools”. He says Berkmanites tend to share the notion that the Internet has specific configuration of features, such as openess, freedom and unfathomably deepness. Hence the fire-walled China’s Internet might not be regarded as “The Internet”.

This might be correct when one asks the Berkmanties what is the “ought to” Internet in their minds. While as a Berk-freshman, I’d rather considering what is the truth of the Internet. In my suspicion, the nuance or even major variety of cyber ecology among different countries/cultures/languages/regimes is unavoidable and has actually been formed for years. Considering the 1 billion accounts of QQ, the seperation of the Internet, the isolation of various version of “Internet” seems not merely a trend but also a truth. The problems seems not only “what are the features of the Internet distinct from the pre-internet society”, but also “To each pre-internet community, what are the features of the Internet respectively.”

Rebecca MacKinnon says there is a “Cyber-tarianism” not uniquely in Chinese Internet sphere. I am waiting for reading that. Nevertheless, I assume there is a trend of Cyber-ANY-isms emerging from everywhere. At this stage, shall we take a “cyber-pluralism” into account firstly?

Fighting Google Unarmed?

China Association of Copyright on Literature Works (CACLW), the governmental authorized org for collective copyright management) is searching the books which are scanned by Google, and calling Chinese authors either sign the GoogleBookSettlement or join CACLW’s collective legal action.

The following are the lists of the authors whose works are scanned by Google, collected (seems manually) by CACLW. And today the third list is published. Besides, the lists are published on the webiste of China Association of Writers, which is actually not the authorized collective management organization in China. Why not the website of CACLW itself? Because the CACLW’s website seems passed out because of technical problems … Unarmed fighting?

The calling was announced in October before the revised google settlment was submitted. While it seems there is no where noticing that the revision of the settlement has excluded the foreign works … 

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BTW, According to China’s Regulations to the Collective Copyright Management, the establishment of a collective managment organization should fulfill some qualifications before approved by the State Copyright Administration Office. When googleing the news, I see very confusing news, from the China Association of Writers’ website, the CACLW was just celebrating its establishment on 1 Sept. 2009. But based on my understanding from other sources, the CACLW has celebrated its setup once in last Oct … What’s the hell are they doing?

Let’s see what will happen …

Collective Management Should Not be the Source of Monopoly Earnings

This is a Column essay in Chinese, published in 21cn Economic Post (GuangZhou). Here is a brief English abstract.

Abstract: China Audio-Video Copyright Association (CAVCA) filed a law suit against SuperStar Co. (a KaraOK service company) on the breach of contract. CAVCA is a national-wide copyright management organization to the audio-visual products in China. The contract says the CAVCA licenses the the copyrights of all the MTV works that it managed to the SuperStar. The SuperStar should pay the money to an account “designated by TianHe Inc.” Tianhe Group is a company established in 2007, and it’s only job is to manage the MTV copyright under the CAVCA’s authorization. This article recalled the aim of the collective copyright management, and questioned the legitimacy of such authorization.

The full-text and the machine translation by Microsoft Translator can be accessed at here (alert! the translation is really terrible).

Harvard-MIT-Yale Cyberscholar Working Group Event

Just a cross-post from Berkman Website. I am going to talk at Harvard-MIT-Yale Cyberscholar Working Group monthly Meeting on 2 December 2009. The content of my talk will be posted later.


6:00 pm – 8:30 pm, Wednesday, December 2, 2009
Conference Room 202, Berkman Center
23 Everett St 2nd Floor, Cambridge, MA
Please RSVP to Herkko Hietanen at herkko.hietanen@hiit.fi before 12/2/09
Refreshments provided

Donnie Hao Dong is a Fellow at Berkman Center and a Lecturer at Yunnan University (PRC). His research interests cover copyright law, cyber law and law and social development in digital age. He got a JSD from China University of Polictics and Law with his dissertation on the public domain in the context of Chinese copyright law. Now Donnie is a PhD Candidate in City University of Hong Kong closing his research on the lessons of Chinese copyright reform for digital age.  His publications, short essays and nags can be accessed athttp://www.BLawgDog.com.

David Singh Grewal is a Junior Fellow at the Harvard Society of Fellows, and an Affiliated Fellow at the Information Society Project at Yale Law School. His first book, Network Power: The Social Dynamics of Globalization was published by Yale University Press in 2008. He holds a JD from Yale, and is currently completing his PhD in the Harvard Government department, where he is finishing his dissertation, “The Invention of the Economy.” He is also on the board of the Biobricks Foundation, a non-profit working to develop an open-source platform for the emerging field of synthetic biology.

Mackenzie Cowell graduated from Davidson College with a BS in Biology in 2007 and currently works as a Research Assistant at the Berkman Center for Internet and Society at Harvard University.  He is booting up a public biotech lab in Boston  bosslab.org). He tweets: @100ideas.

Donnie will discuss his research on the justification of copyright protection in China. He will review the Chinese legislative history of copyright protection during the past hundred years, and draw the conclusion that the Chinese copyright law has been, and still is, justified with the utilitarian approach.  He thinks that this characteristic, rather than the difference between the respective legal systems, may be one of the reasons that cause the continous collision between the US copyright law and its Chinese counterpart in future.


David
will examine the question of: Is there a way to bring “free culture” into biotechnology? His talk will explore one recent effort to do so: the creation of the Biobricks Public Agreement, a legal mechanism meant to assist the development of an open, shared platform in the emerging area of synthetic biology.

Mackenzie Cowell co-founded DIYbio.org after witnessing hundreds of undergraduate teams successfully design and build standardized biological parts and devices while competing in the International Genetically Engineered Machine competition, which Cowell helped organize at MIT from 2006-08.  DIYbio.org is now the center of a diverse and international community of people interested in amateur biotechnology, from artists to scientists to schoolchildren to garage entrepreneurs. In this presentation, Cowell will present some of the projects currently being developed by this community of non-institutional researchers.

Followed by Open Discussion

The “Harvard-MIT-Yale Cyberscholar Working Group” is a forum for fellows and affiliates of the Comparative Media Studies Program at MIT, Yale Law School Information Society Project, and the Berkman Center for Internet & Society at Harvard University to discuss their ongoing research. Each session is focused on the peer review and discussion of current projects submitted by a presenter. Meeting alternatively at Harvard, MIT, Yale, the working group aims to expand the shared knowledge of young scholars by bringing together these preeminent centers of thought on issues confronting the information age. Discussion sessions are designed to facilitate advancements in the individual research of presenters and in turn encourage exposure among the participants to the multi-disciplinary features of the issues addressed by their own work.

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