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News

Please Join CableLabs at Inform[ED]™ Wireless

Pete Smyth
VP, Core Innovations

Mar 9, 2016

The cable industry has been playing an increasing role in advancing wireless technologies as fixed and mobile networks are converging. Today the cable industry provides wireless customers with the largest footprint of wireless hotspots in an environment of increasing mobility as well as providing backhaul connections to mobile operator cell sites.  To meet the predicted 1000x increase in wireless data over the next 10-12 years, it is expected that a large part of this will be achieved by small cell deployments inside homes and offices on cable. There are opportunities for the cable and wireless technologists to collaborate on technologies such as 5G, WiFi and small cells to deliver an improved customer experience in the future.

CableLabs is hosting its first-ever Inform[ED] Wireless Conference to bring together cable and wireless technologists in addition to business analysts and policy leaders. Please join me on April 13 in New York City where you will learn from a diverse panel of speakers who have insights into the technology roadmaps, the business opportunities and the regulatory and political landscape of convergence.

CableLabs has confirmed a diverse and talented group of speakers for the event. Representing academia will be Ted Rappaport and Gerhard Fettweis. Dr. Rappaport is founding Director of NYU Wireless and has authored several books on mobile communications. He will be joined by Professor Gerhard Fettweis of Dresden Technical University who is best known as the man behind the tactile internet and Professor Rahim Tafazolli of the University of Surrey who heads the UK’s 5G Innovation center. Two FCC commissioners, Michael O’Rielly and Jessica Rosenworcel, will provide their points of view on the direction of network convergence. We also have Bob Berner, CTO of Rogers Communications, giving his perspective as both a mobile and cable operator. Industry representatives from Qualcomm, Ericsson, Alcatel-Lucent and Comcast will debate their points of view.  Never before has such a talented group of speakers joined together for a single-day focused event.

As the world moves to an increasingly personal, mobile and wireless world, this is an event that can not be missed. Organized into an efficient single-day conference, we will cover strategies, technologies, and policies. Consider this conference as a great opportunity to learn about the evolution from today’s network to 5G and the role of cable networks. Future cable access technologies will be evaluated, taking into consideration millimetric wave-band small cells. The evolution of WiFi and its expanded role within the home and beyond. During the conference, we will dive into the sharing of spectrum in the 3.5 Ghz band. We will also address the tactile internet and latency requirements. The day will conclude with a clear vision of the future.

Registration for Inform[ED] Wireless is in progress. Reserve a seat for your colleagues and yourself by registering now. I look forward to meeting you in April in NYC.

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News

SCOTUS Sidesteps an Interface with APIs

Jud Cary
Deputy General Counsel

Jul 9, 2015

On the last day of its term, the Supreme Court refused to hear an appeal from the Court of Appeals for the Federal Circuit, and thus it let stand a controversial copyright decision by the appellate court on the copyrightability of application program interfaces or APIs.

The case, Oracle v. Google, dates back to 2010 when Oracle (then Sun Microsystems) sued Google over use of certain Java APIs belonging to Sun that were used in Google’s Android operating system. Both Oracle and Sun agreed that Google did NOT copy Oracle’s “implementing code,” but did copy verbatim Oracle’s “declaring code.” That is, Google copied the “method headers” from 37 Java packages with over 600 classes and over 6000 methods. Google then implemented each method with its own code.

The original trial court that reviewed the lawsuit held that APIs were not subject to copyright protection. The court reasoned “there is only one way to write” the header, and thus the “merger doctrine bars anyone from claiming exclusive copyright ownership of that expression.”

OK, so what is the “merger doctrine!?”

Basically, if there is only one way to express something, say “2+2=4”, then that expression “merges” with the idea itself. And, because ideas cannot be protected by copyright, the expression cannot be copyrighted. (Note, an idea might be protectable under patent law, but not copyright law). Google also argued that, of course the method headers must be the same in Android as they are in Java in order to maintain interoperability. The trial court agreed.

But wait, there’s more! Copyright in computer code covers the literal code itself, but can also the non-literal “sequence, structure and organization,” or SSO, so long as there is some modicum of creativity in the SSO. Here, Google argued that the SSO of the 37 Java packages, 600 classes, and 6000 methods was simply a “command structure” and excluded from copyright protection. Again, the trial court agreed.

Copyright Law Terms
Merger Doctrine
Also called the “idea-expression dichotomy.” The Supreme Court stated "[u]nlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea—not the idea itself." Mazer v. Stein, 347 U.S. 201, 217.
"[C]opyright's idea/expression dichotomy 'strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author's expression.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985)
Sequence Structure and Organization (SSO)
SSO is an alternative way of comparing one software code base to another in order to determine if copying has occurred, even when the second work is not a literal copy of the first. Whelan v. Jaslow (1986). SSO attempts to avoid the extremes of over-protection and under-protection of software code, both of which are considered to discourage innovation.
Fair Use
Fair use was created by the courts, but is now enshrined in the Copyright Act 17 U.S.C. § 107. The Act directs courts as follows: “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.”

Sounds reasonable? Well, the trial court got schooled by the appellate court.

The trial court made several key mistakes in applying the merger doctrine. The trial court focused its merger analysis on the options available to Google at the time of copying, rather than on Oracle’s options at the time of creating. Looked at from the time of creation, Oracle had almost unlimited ways to determine, create, name, and express the 6000 method headers. So, as long as there are several alternative expression choices at the time of creation, the merger doctrine does not apply.

The appellate court further found the sequence structure and organization of the Java packages, classes, and methods sufficiently creative to be copyrightable. And, the court noted, Google did not need to copy verbatim the SSO to make a functionally equivalent platform, albeit not interoperable with Java. See, for example, competitive mobile platforms of Apple iOS or Microsoft Windows Phone.

The case heads back to the trial court to determine if Google’s use of the APIs nevertheless falls under the “fair use” defense doctrine. The factors the trial court will use to determine fair use are: (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.”

Typically courts consider the “commercial nature” of the use as almost dispositive. That is, if any direct or indirect commercial gain is obtained by the use, the fair use defense does not apply. So, IMHO, I think Google will have a hard time succeeding on a fair use defense.

So, what does this mean?

The high tech sector uses, and for that matter CableLabs develops, APIs, including Java APIs, in many projects, platforms, and systems. APIs are intrinsically necessary whenever you want two software systems, platforms, or layers to communicate with each other in an interoperable manner.

The court’s ruling holds that such APIs are likely copyrightable by the creator/owner of the APIs. This means the copyright owner can enforce a copyright license on users of the APIs, or choose not to license the APIs at all. We note that many projects employ an “open source” license with very few restrictions on use, and no royalty of fee. Other projects, like Oracle’s Commercial Use License for Java, may impose fees, and require strict adherence to the APIs and a Certification program in order to maintain interoperability — maybe a good thing.

Similar to APIs, “data models” are widely used by the high tech sector. For example, data models are widely used in the burgeoning Internet of Things to generically represent anything from a light bulb to a refrigerator. It is unclear if data models are so similar to APIs that they too are copyrightable.

CableLabs plays an important role in establishing ownership and managing the associated copyrights of specific APIs and data models. Through our well-tested project creation, project management, and legal agreements, CableLabs ensures that copyright ownership vests with CableLabs (or, at a minimum, a joint ownership interest with the creator), and CableLabs can enforce such copyrights if needed. This disciplined role is especially key in the world of open source that can often become fragmented or “tainted” with multiple ownership rights that are difficult to later enforce. CableLabs will continue to foster collaborative work with our members, and suppliers, while also ensuring copyright ownership is made clear.

Jud Cary is the Deputy General Counsel at CableLabs.

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Policy

Clearing the Air: FCC Faces Wi-Fi Spectrum Challenges

Rob Alderfer
VP, Technology Policy

Dec 17, 2013

For most of us, Wi-Fi is the way we connect online. It’s the key to our broadband world, and Cable operators are rapidly rolling it out. But the growth of Wi-Fi means that we are using more of the resource, straining wireless capacity. Not only that, but next-gen Wi-Fi, known as 802.11ac or “gigabit Wi-Fi” (since it is designed for blazing fast speeds) is constrained by regulations that dictate how Wi-Fi uses the wireless spectrum.

That’s why all eyes are on Washington. As the FCC greets a new Chairman, it faces the challenge of clearing the air for Wi-Fi, to open up new wireless spectrum that will enable continued growth of the service we all depend on, and to ensure that we all get the benefits of new Wi-Fi technology.

Congress is paying attention, too. A recent hearing on Capitol Hill focused on how to make more spectrum available for Wi-Fi, particularly in the 5 gigahertz frequency band. Tom Nagel of Comcast testified at that hearing, and gave voice to all of us that care about Wi-Fi, emphasizing the importance of the issue and outlining how the FCC can make rapid progress.

What’s so compelling about the 5 gigahertz band, you may wonder? Well, it’s the global home for gigabit Wi-Fi technology being rolled out today, meaning that more 5 gigahertz spectrum for Wi-Fi will mean more speed and capacity for all of us, and quickly. That’s unique in the spectrum world – usually, when more spectrum is made available, it takes years to build the ecosystem so that consumers see the benefit.

To capitalize on this opportunity, the FCC will need to navigate its way through the questions and concerns of a variety of other wireless services that also use 5 gigahertz. Satellite phones, government radar systems, and connected vehicle concepts, to name a few. Luckily, Wi-Fi was designed to play nicely with others – it uses a “listen before talk” approach that makes it perhaps the most polite innovation in communications. That’s a pretty good starting point to build from.

You can help to clear the air for Wi-Fi. Tell us about your experiences. Have you ever experienced wireless congestion? How many connected devices are in your home? What would more and better Wi-Fi mean for you?

As we approach the new year, here’s hoping the FCC will provide a meaningful boost to Wi-Fi – and that the rest of the world isn’t far behind.

Rob Alderfer is a Principal Strategic Analyst for CableLabs, the cable industry research and development consortium, where he guides technology policy and strategy across the industry. He was the Chief Data Officer of the Wireless Telecommunications Bureau at the Federal Communications Commission from 2010 to 2012, leading data-driven wireless policy to encourage investment and innovation in wireless broadband. Previously, he was responsible for overseeing communications policy and programs on behalf of the Administration at the White House Office of Management and Budget. Rob holds a Master of Public Policy from Rutgers University and a Bachelor of Arts from Wilfrid Laurier University.

 

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