Appeals Court Considers Overturning Ruling That APIs Can't Be Covered By Copyright

from the and-on-and-on-it-goes dept

Back in May 2012, Judge William Alsup (yes, he’s popular today) issued a very good and very thorough ruling explaining why APIs could not be covered by copyright. Alsup, who claimed he learned to program in Java to better understand the technical details of the case, went into a fair bit of detail in his ruling, which looked like it was clearly designed to explain basic programming concepts to an appeals court who would surely be hearing the case — and almost certainly with judges who had less (if any) programming knowledge. The appeal was officially heard by the Federal Circuit appeals court (CAFC) today and there are some reports suggesting that the judges are skeptical of Alsup’s ruling and may be leaning towards overturning it. Reading through some of the details it appears that at least one judge is clearly on Oracle’s side in believing that APIs can be covered by copyright, while it’s not as clear where the other two judges on the panel sit.

Given CAFC’s history as exceptionally supportive of locking up knowledge and information on the patent side, it wouldn’t be terribly surprising if they did so as well on the copyright side (side note: while, normally, copyright cases should travel up the local appeals court route, since this case started as a patent case, even though it ended up as a copyright case, apparently the appeal still goes to CAFC, the court that hears all patent appeals). This is yet another issue with having a court like CAFC, which has long appeared to be captured by those who support a maximalist view of intellectual property.

Still, oral hearings in appeals are not always indicative of how judges are leaning. Reading the tea leaves there is often quite dangerous. The hearing sometimes focus on tangents, or involve judges really trying to test out a particular theory, and final rulings may be more strongly based on the written filings (and, sometimes, briefs from amici — of which there were quite a few in this case). This case still has a long way to go, but hopefully the appeals court recognizes the careful level of detail that judge Alsup went into in determining that APIs do not deserve copyright protection.

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Companies: google, oracle

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Comments on “Appeals Court Considers Overturning Ruling That APIs Can't Be Covered By Copyright”

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Chris Brand says:

Re: Re:

That sounds reasonable, but the way the system is actually set up also makes sense. We have judges who are experts in the law, and the lawyers are supposed to bring in the appropriate people to explain the technical stuff to them in terms they can understand. We don’t say that a judge can’t rule on a medical case unless they’ve qualified as a doctor, or on a tax case unless they’re a CPA…

The real problem is that seems to be quite possible to find “experts” who’ll actually obfuscate the issues to help their side, so judges end up judging factual (or almost factual) issues based on the credibility of two expert witnesses.

Anonymous Coward says:

Re: Re: Re:3 Re:

? the mundane cases in which it works.

The mill-run cases produce results that suck the hardest. Ninety-nine percent of the apples in that barrel are rotten.

I think the judiciary almost always performs better under the glare of public scrutiny. But one good apple shined up and sitting pretty on the top of the barrel doesn’t save the truckload.

Anonymous Coward says:

Re: Re: Re:5 Re:

? but the earlier comment implied the situation on the ground was the opposite.

Yes. The immediate comment to which you replied was a fairly subtle troll, wasn’t it?

Early in the 20th Century, the progressive answer to decision-making in an increasingly industrialized society envisioned commissions and boards of independent, neutral experts utilizing modern scientific knowledge to inform their decision-making. That gave us institutions like, for example, the FCC, which if you examine the bios of the current commissioners, is not today led by people who emphasize their Electrical Engineering degrees. It’s still an open problem.

The point here is that this society-wide problem has been well-recognized for around a century or so.

Someone who implies that that current system only fails when people look, and works well when no one’s looking is?well, it’s fairly subtle troll.

Andrew D. Todd (user link) says:

Re: Oracle Does Not Hold Most Of The Copyrights, to Anonymous Coward #5

Java is not a language de novo. Its various interfaces are derivative of C++, C, PL/I, Pascal, Algol, FORTRAN, COBOL, SNOBOL, and probably other languages. If interfaces were copyrightable, then Oracle would be in violation of a long list of copyrights. Every new language developer takes the existing complex of ideas and adds a few features.

Anonymous Coward says:

Re: Appeals

? further avenues for appeal once CAFC makes its decision?

The odds that the Supreme Court will grant certiorari in any particular case are extremely low. So extremely low that the CAFC routinely flouts the Supreme Court’s controlling decisions. The CAFC judges know they’re unlikely to be reversed no matter what they do.

Anonymous Coward says:

Re: Re: Appeals

The CAFC does not routinely flout USSC decisions, and anyone who states or suggests otherwise is woefully uninformed. What goes unstated in most of the “flouting” stories is that the CAFC is many times placed in the position of trying to make sense out of a USSC decision that borders on the unintelligible.

Mike Masnick (profile) says:

Re: Appeals

Are there any further avenues for appeal once CAFC makes its decision?

There can be a request to CAFC to rehear the case “en banc” (with a full slate of 11 judges, rather than just a 3 judge panel). That happens sometimes, but it’s pretty rare. The ruling would have to be pretty contentious for that to happen…

Then they can request that the Supreme Court hear the case, which is also a long shot since the Supreme Court rejects most such requests. A high profile case hitting on a key point may be of more interest to the Supreme Court, but it’s much more likely to take a case if it sees a circuit split in the ruling with other appeals courts. Whether or not that’s the case will depend heavily on what the ruling says…

So… yes, there’s the possibility of appeals, but also a very real possibility that no such appeals will be heard.

Andrew D. Todd (user link) says:

Re: Re: The Legal Precedents (to Mike Masnick, #16)

I beg to correct you. This issue is “black letter law.” There are a series of cases going back more than a hundred years, on this point. A typical early case ran as follows: someone published a manual of book-keeping, copyrighted it, and then claimed that the copyright covered the use of the system of book-keeping. I imagine that the author of the book was unhappy that people were buying one copy of the book and using it to direct the work of ten or a hundred clerks at rows of desks, each clerk doing a small portion of the job, and walking up to the chief clerk’s desk to consult the book as needed– or, more precisely, to consult the chief clerk, who then consulted the book in cases which he could not answer out of his head. Hence the author’s sense of ill usage at only selling a tenth or a hundredth as many copies as he expected to sell, based on his assumption that every clerk was supposed to be a generalist, learning and practicing the whole art of book-keeping. The courts firmly shot this claim down, insisting that such a degree of protection could only be gained by a patent. The leading cases are: Baker vs. Selden (Supreme Court, 1880); Seltzer vs Sunbrock (S.D. California, 1938); and Continental Casualty vs. Beardsley (2n Circuit, Supreme Court Cert. Denied, 1958). Judge Alsup was not making stuff up out of his head, but operating firmly within a legal tradition from long before computers.

The Supreme Court is not monolithic about copyright, as was revealed in Wiley vs. Kirtsaeng. They will see Oracle’s claims as an attempt to turn a copyright into a patent, and shoot it down. The Supreme Court is extremely interventionist when it perceives that a lower court is attempting to systematically resist its rulings. The Supreme Court has a certain reluctance to “upset the apple cart.” It tends, when it can, to legitimate the status quo. Hence its rulings in cases involving the duration of copyright, and its rulings in cases involving file-sharing programs and services whose net effect is that anyone can get a copy of anything for free, just as if it were in the public domain, even if it was only published two weeks ago. The classic case of the Supreme Court’s reluctance was Dred Scott (1857), and we ultimately had to fight a civil war about that. Oracle’s claims are not for the preservation of the status quo– they call for radical changes.

Spaceman Spiff (profile) says:


If this is overturned, I can’t even express what a disaster that would be! Unfortunately, the US Supreme Court is clueless about this cruft, and would likely uphold such a ruling. Oracle wins, and the rest of the world suffers! Ellison should release the API’s into the public domain, though that won’t help for other stuff. Law is law, and fighting it is costly!

The Old Man in The Sea says:

What will happen?

Programmers working for companies producing non-competing software will continue to use the API’s.

Everyone else will find other avenues including no longer using the Oracle Java language. I would then expect to see GPL’ed or Public Domain languages being taken up. Python for example.

Oracle is not exactly renown for its public betterment. They can’t even get what it means to have a Relational Database Management System. They hoist an awful system onto us users. Just to clarify, I have been building Oracle based systems since the late 80’s. These days I have moved over to PostgreSQL (which is still not a Relational Database Management System) because it is freely available to all.

Anonymous Coward says:

Re: Re:

Is CAFC a district court?

The ?CAFC?, in full, is the United States Court of Appeals for the Federal Circuit. It is not a district court.

In the U.S. federal system, the U.S. district courts are the trial courts. The U.S. circuit courts of appeal supervise the decisions of the district courts at the intermediate level, under the overall supervision of the U.S. Supreme Court.


If the appeals court over rules this one case, what happens to all the precedent?

Precedent is generally divided into two types: pursuasive precedents and binding precedents. Generally, the district courts are bound to follow the holdings of decisions handed down by their own supervising circuit. The decisions of other circuits may pursuade a district court judge, but, on the other hand, the district court might not be pursuaded by some other circuit’s decision.

The appellate jurisdiction of the CAFC complicates this simple model. Briefly, the CAFC hears and decides appeals of all patent cases, and their holdings bind all the U.S. district courts on patent matters. On non-patent matters, it’s even more complicated. When the CAFC hears and decides a matter that would ordinarily be heard and decided by one of the other circuit courts of appeal, the CAFC should apply the law of that other circuit.

Lawrence D'Oliveiro says:

As I recall among the reporting of the original Oracle vs Google trial, at one point Judge Alsup asked Oracle if their problem was that Google only copied a subset of the Java APIs, rather than the whole thing. In other words, Oracle seemed to be making the argument that Google?s harm was in fragmenting Java by introducing an incompatible subset, not in copying it wholesale.

But of course, you can?t claim copyright infringement because the alleged infringer didn?t copy enough.

I wonder if Google?s lawyers can remind the Appeals Court of this little point?

Anonymous Coward says:

Re: Re:

I wonder if Google?s lawyers can remind the Appeals Court of this little point?

Re-read the order which is being appealed. On p.31, Judge Alsup writes:

? For example, Java-based code using the replicated parts of the 37 API packages will run on Android but will not if a 38th package is needed. Such imperfect interoperability leads to a ?fragmentation? ? a Balkanization ? of platforms, a circumstance which Sun and Oracle have tried to curb via their licensing programs. In this litigation, Oracle has made much of this problem, at times almost leaving the impression that if only Google had replicated all 166 Java API packages, Oracle would not have sued.

(Emphasis added.)

Do you think that’s enough of a reminder for the appeals judges? Perhaps their minds have just been made up all along, and their eyes glazed over as they read Judge Alsup’s reasoning.

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