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Re: Brief update about software freedom and artificial intelligence

"Roberto A. Foglietta" <roberto.foglietta@gmail.com> writes:
> On Mon, 27 Feb 2023 at 07:16, Russ Allbery <rra@debian.org> wrote:

>> 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.

It's not a single US court judgment.  The standard for fair use in the
United States was created by a series of Supreme Court judgments starting
with Folsom v. Marsh in 1841 and enshrined in US national law in 17
U.S.C. § 107 in 1976:

    Notwithstanding the provisions of sections 106 and 106A, the fair use
    of a copyrighted work, including such use by reproduction in copies or
    phonorecords or by any other means specified by that section, for
    purposes such as criticism, comment, news reporting, teaching
    (including multiple copies for classroom use), scholarship, or
    research, is not an infringement of copyright. In determining whether
    the use made of a work in any particular case is a fair use the
    factors to be considered shall include—

    (1) the purpose and character of the use, including whether such use
    is of a commercial nature or is for nonprofit educational purposes;

    (2) the nature of the copyrighted work;

    (3) the amount and substantiality of the portion used in relation to
    the copyrighted work as a whole; and

    (4) the effect of the use upon the potential market for or value of
    the copyrighted work.

    The fact that a work is unpublished shall not itself bar a finding of
    fair use if such finding is made upon consideration of all the above

You can find this history numerous places on-line, for example:


Many fair use cases in US history have been about commercial use.
Probably most, since companies with commercial uses are more likely to go
through the trouble of lawsuits.  Commercial fair use is routine within
the classic examples of fair use, such as parody and quoting for

This is the law in the United States.  The law in other countries of
course may be quite different.  But given that many of the actors who are
relevant to a discussion of large AI models at present have a significant
locus in the United States, US law is going to play a large role.

> 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.

This is not correct summary of the outcome of Google v. Oracle, nor is it
what the Ars Technica article you liked said.  There was no agreement
between the parties in the question before the Supreme Court.  The case
went to judgment and the Supreme Court ruled in favor of Google on fair
use grounds, mooting (and not ruling on) the question of copyrightability
of the API definitions.

Appeals like this in the US are generally over a specific question of law
and do not settle the *entire case*, so the Supreme Court then remanded
the case to trial court to dispose of the rest of the lawsuit.  I didn't
follow it after that because the details following the Supreme Court
decision are generally uninteresting since they're probably forced by the
decision.  It's quite possible that the parties mutually agreed to dismiss
the case after that decision because the decision meant Google was certain
to win.  But the Supreme Court decision was not an agreement between

This is important because in US law if the parties had reached an
agreement before the decision, the case would generally be dismissed and
thus not receive a court judgment and therefore not create precedent.
Google v. Oracle did not settle; it was decided by the Supreme Court and
therefore did create binding precedent for further district court
decisions on similar cases.

> 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.

If this is your approach to legal analysis, I think I will stop here,
since any further discussion along these lines is going to be pointless.

> 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.

This is simply not true, and it is very good for free softawre that this
is not true.  One is still allowed to do reverse engineering and API
replacement under fair use even if one is doing it for business and
commercial purposes, and lots of free software development is done for
business and commercial purposes.

Russ Allbery (rra@debian.org)              <https://www.eyrie.org/~eagle/>

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