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The documentation can be treated as a separable component of the source code | 687 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
The documentation can be treated as a separable component of the source code
Authored by: Anonymous on Saturday, April 28 2012 @ 03:13 AM EDT
Well, you may think what you like about the threshold of originality - you are
free to be wrong, which you certainly are, but a simple refinement is all you
need to better your understanding. It will also allow me to clarify and
express more clearly what I was trying to get across.

You also make some very bad assumptions, set up an implicit and rather poor (not
to mention self-contradictory) straw man argument (in an apparent attempt to
make yourself look good?), and are sorely in need of a lesson in netiquette.

I will address each point in turn:

To quote the majority of the US Supreme Court (the decision was unanimous with
eight justices joining in O'Connor's opinion and one concurring opinion) in
Feist v. Rural (look it up - it's the foundational US case on this point)
"[t]he sine qua non of copyright is originality". The court does use
the concept of creativity to explain a part of what originality is. Originality
has two components: one of which is authorship (non-copying) and the other of
which is creativity. In using the term creativity, the court was rejecting the
English minimal requirements for copyright: labour, skill, or judgement (this
standard has also been rejected in Canada where originality means non-copying
and the exercise of a minimal amount of skill and judgement, but has been upheld
in Australia where labour is sufficient on its own). So the court requires the
exercise of skill and judgement (creativity), and the requisite amount -
"no matter how crude, humble or obvious" - is extremely low. Novelty
is also not a requirement. In your own quote from the copyright office is the
phrase "original authorship". If creativity was the requirement
instead of originality that phrase should have been "creative
authorship". Essentially, all that is required for originality, at least
for a compilation, is that the selection and arrangement is not "mechanical
or routine".

In this sense the API docs, if considered a compilation, would not meet the
originality requirement because they selection and arrangement is mechanical and
routine: it is dictated by the implementation when generated from the source
code.

You are right that some evidence of creativity, or skill and judgement, or
intellectual production, thought, and conception is required (there are many was
to phrase it). Where you are mistaken is that originality is an additional
requirement. Thus you were mistaken when you labeled the comment as non
creative - in copyright terms it meets the very low threshold for creativity.
Presuming it was not copied, it also meets the threshold for originality, but it
is not copyrightable for other reasons: the words and short phrases doctrine
might apply, and the merger doctrine is likely to apply (I don't believe that
these would be found to be facts because they are part of the expression of
another work, and are thus expression themselves). These doctrines are both
policy driven, and apply to negate copyright in otherwise copyrightable
expression where it would be against the public interest to allow a monopoly on
the expression because it would be too restrictive on the speech of others to do
so.

About your assumptions, implicit or otherwise: I haven't read much, of any
version of the java.* or javax.* source code since 2003 or 2004. I have,
however, seen implementation details in API docs in a horribly surprising number
of places over the year. That's not to say that I agree they should be there
(although I'm sure I could think up a reasonable justification for some few
exceptions). Regardless, I was making a general comment on the copyrightability
of comments, and using it to illustrate the requisite originality. I also did
admit that it wasn't the best of examples.

As an aside: the Java API docs may actually have a problem here, one I half
expected to see raised in court: everything in the docs is not original to the
docs. Firstly, the docs don't have an author, they are automatically generated
- this isn't settled law yet (anywhere in the common law world except in
Australia, IIRC), but I'm sure it will have to be decided relatively soon.
Secondly, some, if not all of it was copied from the source code and so is not
protectable in the context of the docs. I'm sure some of the comments in the
source code were copied from the original spec, and so are not original to the
source, either. Oracle should have to trace the provenance of the expression to
ensure that they actually do own the copyright, so that the right works can be
compared, if any copyright does inhere at all.

Moving on, you imply and assume, by putting forward your propositions for me,
that I am likely to disagree with them, and so have created an implicit straw
man. I have not argued against your propositions, however I will show you where
some of them are both wrong and self contradictory so that you can amend them:

1. I have no dispute with this, nor have I ever argued against it - languages
are not copyrightable for a number of reasons: the fixation requirement in the
US (but not elsewhere) and the policy reason of not allowing a monopoly on
expression where it would be too restrictive on the speech of others.

2. The Java API is not made up of any such things, unless by the Java API you
mean the specification document and not the API itself, as you say in your next
point.

3. All APIs are intangibles: they are methods of operation - ideas and not
expression, even though they are described by expression, this includes the Java
API.

4. Being an intangible (as you stated in point 3 above) it is not possible for
the API to contain any works. Period.

I've already addressed provenance issues above, but I'm puzzled about why you're
going on about here. You appear to just be ranting, as I have not discussed
particulars of the case until this post - your discussion of the CD and
trademarks are either a red herring or evidence of an inability to stick to the
topic at hand.

Now that I have, not assuming anything about your knowledge (despite your
attempt to argue from authority by characterizing yourself as
"seasoned"), demonstrated it to be lacking, we can address your lack
of netiquette:

It is only common courtesy, and has been for the twenty years I've been
regularly on the internet, to lurk before you post in a given forum so that you
can come to understand what constitutes acceptable behaviour. Your posts show a
distinct lack of politeness towards other posters, not just myself, and as such
are in violation of the posting guidelines which appear above the preview and
submit buttons on the reply page. PJ has already given you a gentle nudge in
this regard (showing a good deal of restraint, actually) with regards to
swearing, and Ed L. has also made some gentle suggestions you should heed. You
really should do everyone here, including yourself, a favour by refraining from
ad hominem disengagements and being more polite to everyone. In other words:
learn to play nice or play elsewhere, please.

[ Reply to This | Parent | # ]

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