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Re: Brief update about software freedom and artificial intelligence

On Mon, 27 Feb 2023 at 07:16, Russ Allbery <rra@debian.org> wrote:
> "Roberto A. Foglietta" <roberto.foglietta@gmail.com> writes:
> > - fair use cannot include {business, commercial, marketing} rights in
> > anyway and in any conditions
> This is definitely not true in the United States; there is a Supreme Court
> decision saying the exact opposite.  The ruling in Google v. Oracle said
> Google's commercial and business use of Oracle's copyrighted APIs met the
> test for fair use.

It is true despite a single US case judgment. In the USA there is the
habit to use precedent judgments to influence others judgment but this
applies only if there is a significant analogy between the two cases
and even if there is a very significant analogy the judge can produce
an opposite ruling for that case.

Google lost two trials against Oracle apparently because judges are
not able to distinguish between the API and the code that runs behind
the API. Thus they faced the Supreme Court. This despite the fact that
API is unlikely to be a work that could be protected by copyright
except in very rare cases. Microsoft deposited a memorandum at the
Supreme Court asking them to rule in favour of Google.

Both these facts are in favour of the opinion that I have explained:
1. API might or might not be protected, 2. copyright applies in case
of doubts.

Microsoft used their capability to persuade Oracle in favor of Google.
Thus the parties agreed that Google - when creating libraries with the
Oracle's API - did a fair use of their declaration. After all, if you
cannot include the headers then you cannot also call the original
functions. The fair use in that agreement was an escamotage to avoid
the Supreme Court would have issued a ruling that would be a disaster
in any case AND for both parties to save the honor.


No court ruling was ever emitted in favour of Google vs Oracle
leveraging fair use but it was an agreement between the two parties
supported by Microsoft.


As you can learn from the Ars Technica's article linked here above.

> You can't reconstruct the law from first principles without looking at the
> actual test that is applied by courts.  (And as mentioned this may be
> different in different jurisdictions, for additional complexity.)

I can reconstruct the interpretation of a law from basic principles
otherwise it would not be a law but something that appeared from
nothing: no any law roots, no any law authority. Like every three, a
law is stronger when it has ancient and well developed roots. Thus, a
law interpretation based on reconstructing it from its principle is
the most significant, the most important and the most persuasive way
of doing such a task.

> In the
> US there's a four-part balancing test for fair use, and the analysis can
> be quite complicated.

The U.S. law interpretation is not the source of the truth. Moreover,
it does not matter how fair use is defined in many different
legislations around the world. By copyright principle, it cannot allow
doing activities like {business, commercial, marketing} without the
consent of the author or of the license. The "fair use" is a false
friend and ignoring it is the best choice.


If the question "what is X?" does not work well, then try the opposite
"what is not X?" - It is not important to define "fair use" as long as
we can certainly define what does NOT cover the blurry fair use
definition. After all, we were interested since the beginning on "what
is not fair use" thus asking the right question is half of the work

@Russ: please write to me in private if you need more clarification.
At this point anything further has very little to do with the
community needs.

Best regards, R-

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