The courts continue to get to make copyright and patent law. The latest involves Oracle which is suing Google over Oracle's Application Programming Interface (API) as well as other lesser elements.

The heart of the difference is whether the Java API can be copyrighted or not. Google has been using it in the belief that it was not protected, particularly for Android, Google's operating system for cell phones and tablets. Oracle which acquired the software from Sun Microsystems two years ago, has much to gain if it wins rumored to be as much as a billion dollars.

Oracle's case is that its API is copyrighted along with the underlying software code. Google argues that it can't be copyrighted because the elements of an API are like words, in free and common use.

If it loses, Google would have to eliminate the API or pay Oracle's price (or find a substitute to run the small free apps that are already widely used in Android gadgets).

The case took an odd turn last week, when the judge instructed the jury hearing the suit to assume that the copyright does cover the API but that he would issue his final ruling later in the proceedings. I suspect the jurors will take this to mean the judge has already intervened and made their efforts irrelevant. But that possibility will provide Google a basis to appeal.

Then on Friday, the judge sent aspects of the case to the jury link here. The best current status of the suit is described there in detail. For all the twists and turns, go to Groklaw link here for a daily account in extenso of the arguments.

Then today, a European court ruled in another case that an API is not copyrightable link here. Good for it, blocking the steady expansion of the reach of copyright.

Steve Pearlstein writes in the Washington Post about competition in the book selling business link here. He boils the policy issue down to picking your monopolist, Apple or Amazon. That doesn't really frame the choices consumers face.

His frame is either control of the ebook market by Amazon which priced them at $9.99 or by Apple, which raised prices by 30-40 percent through setting a wholesale price and letting retailers set the retail price, incidentally restoring the market in printed books to profitability.

The issue is moot for the moment, since the government has weighed in on the side of low prices but various interests have now gone to court.

Pearlstein leaves out the whole issue of copyright, in the absence of which none of this could have occurred. It is the original monopoly, on the basis of which any other associated monopolies rest. While it is unlikely that Congress will change copyright any time soon, it is important for consumers to know that competitive pricing of books depends on substantially reducing the term of copyright to somewhere between 10 and 20 years.

We make jokes on this blog about what would happen if every word was under copyright and every time you wrote something you had to get a license for each word. So look at Mike Masnick's post over on Techdirt. People make collages of photographs; the individual photographers are mad because they own the individual pictures. The point is: this should be fair use because it is transformative. A collage is an original and transformative use of pictures the same way an essay is an an original and transformative use of words. So this is what we have come to. I could say the same about sampling in music. I guess we must count our blessings and be grateful that language was invented before copyright.

Dean Baker writes in the blog of the The Center for Economic and Policy NYResearch link here responding to a New York Times opinion column written by Cary H. Sherman the "chief executive of the Recording Industry Association of America, which represents music labels." link here

Baker has much the better in the argument, pointing out that the Times has printed industry propaganda on more than one occasion.

Here are two paragraphs from his piece: "The real issue here is that copyright is an archaic property form that it is no longer practical to enforce in the Internet Age. Serious policy people should be looking to develop alternative mechanisms for financing creative and artistic work. Unfortunately, the organizations that ostensibly represent creative workers are not very creative. It is impressive that the NYT allows a piece from the industry to appear with apparently no fact checking. Two days earlier it had a similar column complaining about the failure of SOPA. Given its dominance of the NYT's opinion pages, it is understandable that the RIAA would be upset about the growth of independent voices on the Internet."

Mike Masnick chimes in link here with much the same criticisms.

While waiting in my doctor's office with nothing to read, I picked up a copy of the Washington Lawyer, the journal of the DC bar. It had a long piece on the "March Toward a National Digital Library" by Sarah Kellogg that I think worth reading. And pondering. It is online here .

A lot has been happening, but it remains slow going as the lawyers and the interest groups continue to try to find a workable deal on the remaining issues. Still the author is hopeful. But she also notes that we have had the technology to digitize print matter since 1971 when Project Gutenberg published it first e-book. Forty years. Think about that.

We as citizens with the largest stake in the public interest can take a much more jaundiced view of what has to be considered a national and global failure. The existence of the internet and the actual digitization of so much material that remains locked up is a national disgrace. At this point, keeping this material under lock and key is a tribute to the copyright monopolies that have been established and then extended in time and coverage due to their political power. The deadweight cost to human kind of these monopolies is staggering.

Why is it that there is no national clamor to end this nonsense?

The last post might leave you wondering: if closing down small start up domains prevents competition, why were the big guys against SOPA/PIPA? That is the difference between a growing innovative industry and a dying industry. Music, movies and books may be thriving, but studios and publishing houses are dying. So: what is the last refuge of the desperate? Government protection - read SOPA/PIPA.

In a dynamic growing industry the incentives are different. Sure: Google would get some protection from competition from SOPA/PIPA. But Google isn't after the few dollars to be gained by smashing the competition. They are after the big dollars to be gained by growing their business. The Google vision is that of the cloud: always connected internet devices connect us to our own data and shared data stored on Google and other servers. What is killing Microsoft? Google docs is certainly part of the story. But if our data online is at risk - either because Google is required to pry into our private data, or because the Feds may come along and grab it - the rest of us aren't going to buy into that Google vision. Crucial to the big markets Google sees as still ripe for plucking is that we have to trust that the cloud is safe. SOPA/PIPA, domain seizure, the DMCA, take-down notices: these all make us rightfully distrustful of the cloud.

Perhaps I should remind you of the history of Microsoft: while they were a growing dynamic company they were opposed to software patents. Now that they are pathetic and declining that's all they have left. They can't sell their own products, so they use (pretty meaningless) patents to tax Android phones.

When an industry or company turns to the government, sell short, they are going down.

I want to elaborate on the previous post. The point of the SOPA/PIPA as well as the meguploads take down is that there is no accusation that the site operators were pirates, merely that pirates used their site to distribute pirated material. For the sake of argument let's just accept the law that piracy is illegal. People can easily use social networking sites such as facebook, and cloud storage sites such as dropbox to exchange links to pirated files and make them available. Nor can the site operators easily police their sites; the technical difficulties aside (and they are significant) there is also the issue of user privacy if the operators go poking around in files and postings.

It seems to me unlikely that the Feds would take down large widely used domains such as facebook or dropbox - certainly if they did there would be a massive public outcry, and they would be forced to back down, and we'd have to witness politicians profusely apologizing and explaining that it wasn't their fault.

What that means is that it becomes hard to start a new social networking or file-sharing business. The new-comer or startup - unlike facebook or dropbox - can be shut down without a massive public outcry. So: the unintended consequence is that it is now a lot harder to start the next facebook. We face a huge economic crisis. Many people think we need to innovate our way out of it. Creating huge barriers to entry and giving existing players a big advantage over entrants isn't the way to do this.

If we follow the logic of Chris Dodd to the obvious conclusion: the internet facilitates the piracy of copyrighted material. So let's just shut it down.

Really I find what happened with the megauploads take down stunning. Bear in mind that there were at least some legitimate files stored on those servers: for example, a lot of xda-developer files were distributed through megauploads. Imagine I parked my car in a garage. Then when it was later alleged that some of the other cars in the garage were stolen the police seized my car along with the others. All the legitimate users of megauploads lost their files. Talk about guilt by association. What if it was alleged that people were sharing pirated files through dropbox, and the feds removed dropbox from the web?

The Supreme Court has found Congress can extend copyright protection to works that had previously been in the public domain link here. The decision was 6-2 with one recusal. The story is covered here and here, but focus should be on the two dissenters who held that Congress had exceeded its authority when judged by the constitutional provision that copyright was justified when it served "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."

The Court majority dismissed the minority view by saying that the current copyright interpretation is settled law and they won't change it. This keeps the arts in a box where the current copyright holder has a monopoly extending beyond his lifetime. Most often they are held by a corporation which creates nothing.

This is another step in the process of extending the reach of intellectual property law to suppress new creation and extend monopoly, to the cost of the public. One begins to wonder if this will ever change for the better.