Why Making APIs Copyrightable Is Bad News For Innovation

from the this-is-a-big-problem dept

Following last week's terrible ruling from the appeals court of the Federal Circuit (CAFC), a lot of people have been trying to dig into what this would mean if it stands. As we mentioned, this is far from the end of the line. Google can (and will) seek a reversal, either from the entire CAFC or the Supreme Court. And even if that is rejected or fails, the case still goes back to the district court level to determine the fair use question (which will then see its own series of appeals). In short, this is not even close to being settled yet -- which means many, many, many millions of dollars in legal fees are going to be tossed around before this is settled. That, alone, is a mess for innovators and entrepreneurs who are in a state of flux given the situation.

But, rest assured, if this ruling holds, it will be bad news for innovators. Over a year ago, Sacha Labourey had a good explanation of what's at stake here:
APIs exist for a reason: They act as the communication channel, the lingua franca, the boundary, between the provider of the implementation and users of that implementation — developers. Of course they require an investment to create. Deep expertise — and even taste — is required to create effective APIs. But, companies and individuals make those investments because they want developers to use an implementation that is exposed through the API. That implementation might give people an incentive to buy your hardware, software or services. Who knows, maybe it gives you a more effective way to sell ads.

You make some bets when you create an API, but they’re not about monetizing the API. They’re about monetizing the things the API unlocks access to. You’ll find APIs documented and used in many books, blogs and open-source projects. Adoption is probably the key measure of success of an API. But then if you encourage developers to use your APIs, why can you prevent them from implementing “the other side” of them? When Captain Picard orders a “Tea, Earl Grey, Hot,” at the Oracle replicator, he’s using a kind of API: “Object. [Qualifiers...]”. Google or anyone else should be able to create their own replicator without Oracle insisting they use some other syntax.

Oracle lost in their attempt to protect their position using patents. They lost in their attempt to claim Google copied anything but a few lines of code. If they succeed in claiming you need their permission to use the Java APIs that they pushed as a community standard, software developers and innovation will be the losers. Learning the Java language is relatively simple, but mastering its APIs is a major investment you make as a Java developer. What Android did for Java developers is to allow them to make use of their individual career and professional investment to engage in a mobile marketplace that Sun failed to properly engage in.
In other words, properly recognizing that APIs shouldn't be covered by copyright benefits everyone, as it makes people programming on your platform more valuable since they have more options and more flexibility. The big companies who don't like this are being short-sighted. They're trying to lock in developers, by forcing them to only develop for their platform, but in doing so, are inherently making their own platform less valuable. If innovators can easily write for multiple platforms, the network effects apply across all of those platforms.

The folks over at EFF properly note that this kind of freedom is truly important for innovation:

The implications of this decision are significant, and dangerous. As we and others tried to explain to the court, the freedom to reimplement and extend existing APIs has been the key to competition and progress in both hardware and software development. It made possible the emergence and success of many robust industries we now take for granted—for mainframes, PCs, workstations/servers, and so on—by ensuring that competitors could challenge established players and advance the state of the art. In other words, excluding APIs from copyright protection has been essential to the development of modern computers and the Internet.

When programmers can freely reimplement or reverse engineer an API without the need to negotiate a costly license or risk a lawsuit, they can create compatible software that the interface’s original creator might never have envisioned or had the resources to create. Moreover, compatible APIs enable people to switch platforms and services freely, and to find software that meets their needs regardless of what browser or operating system they use. The freedom to reimplement APIs also helps rescue “orphan” software or data—systems whose creators have either gone out of business or abandoned their product in the marketplace.

Today's decision puts all of that at risk, potentially handing Oracle and others veto power over any developer who wants to create a compatible program. What is worse, if today's decision is taken as a green light to API litigation, large and small software tech companies are going to have to divert more and more resources away from development, and toward litigation. That will be good for the legal profession—but not so good for everyone else. 

What kind of litigation and what kind of mess are we talking about? Tim Lee, over at Vox, has some ideas:
One good example is the open source project Samba. It was created to allow users of open source operating systems such as Linux share files with Windows users. To do that, the Samba programmers reverse-engineered and then duplicated the functionality of the Windows file-sharing system. They didn't copy any Microsoft software; they simply duplicated the sequence of commands needed to transfer files, read the contents of folders, and perform other functions in the Windows file-sharing system.

Samba has become hugely popular. Not only did Apple incorporate Samba into some versions of Mac OS X to allow Macs and PCs to communicate, many third-party companies also used Samba to build stand-alone file servers.

The legality of projects like Samba has been widely accepted for more than two decades. But under the Federal Circuit's logic, Microsoft might be able to sue a Samba for copyright infringement. If the Federal Circuit's precedent isn't overturned, companies could become more reluctant to reverse-engineer competitors' products in order to make them compatible.

Grimmelmann also warns that the vague language of the decision could open the door to frivolous litigation. For example, the decision could make it easier for a company to sue a former employee if he goes to a new employer and writes software similar to the code he wrote at his old job. Even if the programmer writes the new code from scratch, courts could find that it's similar enough to the old code to trigger copyright liability.
Meanwhile, over at the Disruptive Competition Project blog, Jonathan Band, delves into the many, many ways that the CAFC appears to have totally misread the historical precedents that bind the court. But, even worse, he notes that many innovators and programmers have relied on those precedents for years -- and now all of that work is thrown into doubt:
For the past 20 years, since decisions such as Sega v. Accolade, Computer Associates v. Altai, and Lotus v. Borland, computer programmers in the United States have understood that copyright does not protect program elements necessary for interoperability. Based on this understanding, programmers have freely copied these elements, which has encouraged enormous creativity, innovation, and competition in the digital environment. Judge O’Malley’s decision casts doubt on this understanding. By ruling that interoperability is relevant only to fair use, and not to protectability, Judge O’Malley would require every developer to perform a fair use analysis before developing an interoperable product. This would place U.S. programmers at a competitive disadvantage to developers in other jurisdictions that recognized that copyright does not protect program elements necessary for interoperability. The Court of Justice of the European Union, for example, in the 2012 decision in SAS Institute v. World Programming Ltd., ruled that program functionality, programming languages, and data formats were not protectable under copyright.
While for non-programmers, all of this may seem like a minor, technical issue over whether some small bit of "software" is copyrightable, the practical implications of declaring APIs copyrightable will have vast and far-reaching implications for all kinds of innovation. This isn't just a bad ruling, it's a ruling that will create massive problems for today's innovators.

Reader Comments (rss)

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    Anonymous Coward, May 13th, 2014 @ 1:23pm

    The government doesn't want or care about innovation, they only care about monopolization. The current state of patents in the pharmaceutical (and medical) industry and how they have slowed down innovation are evidence of this.

     

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    Anonymous Coward, May 13th, 2014 @ 1:35pm

    Why is this even a thing?

    The Federal Circuit is truly out of control. The Supreme Court decided this issue 135 years ago:
    "The evidence of the complainant is principally directed to the object of showing that Baker uses the same system as that which is explained and illustrated in Selden's books. It becomes important, therefore, to determine whether, in obtaining the copyright of his books, he secured the exclusive right to the use of the system or method ... which the said books are intended to illustrate and explain. It is contended that he has secured such exclusive right because no one can use the system without using substantially the same ruled lines and headings which he was appended to his books in illustration of it."

    "...The copyright of a work on mathematical science cannot give to the author an exclusive right to the methods of operation which he propounds, or to the diagrams which he employs to explain them, so as to prevent an engineer from using them whenever occasion requires."

    Baker v. Selden, 101 U.S. 99 (1879).

     

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      Anonymous Coward, May 13th, 2014 @ 5:47pm

      Re: Why is this even a thing?

      Baker v Selden (1879) does not utterly control this exact dispute between Oracle and Google. Nevertheless, the case is indeed relevant, and the CAFC panel discussed it on pp.18-19 of its opinion.

      In that discussion, though, the CAFC appears to have missed one important point made by Mr Justic Bradley:
      [W]here the art it teaches cannot be used without employing the methods and diagrams used to illustrate the book, or such as are similar to them, such methods and diagrams are to be considered as necessary incidents to the art, and given therewith to the public -- not given for the purpose of publication in other works explanatory of the art, but for the purpose of practical application.

      (Emphasis added.)

      “Given therewith” seems to imply that the modern 102(b) factors must be considered as pertaining at the time of publication.

      The CAFC panel wrote:
      We further find that the district court erred in focusing its merger analysis on the options available to Google at the time of copying. It is well-established that copyrightability and the scope of protectable activity are to be evaluated at the time of creation, not at the time of infringement.

      Focusing on the time immediately before creation, though, seems to neglect the idea the necessary incidents to the art are “given therewith.”

       

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    Anonymous Coward, May 13th, 2014 @ 1:39pm

    Larry Ellison is so short-sighted. I bet within 2 years this will come back to bite them in the ass, if the ruling stays.

     

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      Seegras (profile), May 14th, 2014 @ 3:57am

      Re:

      Like in when K&R or AT&T assert that the API of Java is infringing on the API of C?

      Because essentially, C is the historic predecessor of Java, and there are tons of functions in Java which have the same names as the ones in C and behave exactly the same way.

       

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        Anonymous Coward, May 14th, 2014 @ 9:45am

        Re: Re:

        … Java is infringing on the API of C?

        To give to the author of the book an exclusive property in the art described therein when no examination of its novelty has ever been officially made would be a surprise and a fraud upon the public. That is the province of letters patent, not of copyright.

                    ——Mr Justice Bradley, Baker v Selden (1879)

         

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    Rob, May 13th, 2014 @ 2:19pm

    No copyright doesn't help Open Source

    The whole Andriod thing has nothing to do with "interoperability". What Google did was take the very extensive Java API and re-purpose it for use in their own platform that was not comparable with Java.

    If Andriod was Java compatible the "fair use", "interoperability" argument would stand muster. But instead they just knowingly made an incompatible competitor to Java without paying a cent.

    If I wanted to use a Adobe API to make a new Photoshop filter that worked within the original Photoshop program without paying for a licence then that should be "fair use" of the copyright API, because the derivative work based on the API actually complements and extends the original creation. But companies using API of say a open source GPL licensed communication messaging system to reduce the development time on their own Proprietary Software without releasing their code back under the GPL is simply stealing the hard work somebody else has done for their own financial gain.

    Reducing and removing copyright does not advance the cause of Open Source software. The GPL and related licences only work when their copyright is legally recognised.

     

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      Anonymous Coward, May 13th, 2014 @ 2:32pm

      Re: No copyright doesn't help Open Source

      … simply stealing the hard work somebody else has done…

      Feist (1991) firmly rejected the “sweat of the brow” doctrine.

      Along a parallel track, even in his CONTU concurrence, Commissioner Nimmer expressed “doubts and concerns” about letting copyright devolve into a “general misappropriation law”.
      If literary works are to be so broadly construed, the Copyright Act becomes a general misappropriation law, applicable as well in what has traditionally been regarded as the patent arena, and, indeed, also in other areas to which neither copyright nor patent law has previously extended. This poses a serious constitutional issue in that it is arguable that such an approach stretches the meaning of authors and writings as used in the Copyright Clause of the Constitution beyond the breaking point. Apart from the constitutional issues, it raises policy questions, the full implications of which remain murky at best.

       

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      Anonymous Coward, May 13th, 2014 @ 2:51pm

      Re: No copyright doesn't help Open Source

      first off Google's Java implementation is Apache 2.0 open source not proprietary

      second, GPL only exists to counter copyright as it applies to software, without software copyright the gpl isn't needed.

      you may as well point out all the wonderful medicine that wouldn't exist without illnesses or injury

       

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      Anonymous Coward, May 13th, 2014 @ 3:03pm

      Re: No copyright doesn't help Open Source

      There is so much misinformation in your post it's hard to even know where to start.

      "If Andriod was Java compatible the "fair use", "interoperability" argument would stand muster. But instead they just knowingly made an incompatible competitor to Java without paying a cent. "

      So what? Why does a competitor need to pay its competitors to make a competing product? The Java API wasn't suitable for what Google needed so they may have borrowed from it and made some changes. Java, itself, borrows heavily from C and C++ (I used to be familiar with C and C++ but was never really that familiar with Java, though I tinkered around with it a bit, but I hear it's very similar).

      and different programming languages don't necessarily compete so much as they just have different uses. Some are more suitable for some things (like heavy duty math) while others are more suitable for others (like general applications). So Google made an API suitable for their specific needs and it happens to bear some similarity to Java (and they may have borrowed from Java as well where it makes sense).

      and what does Android being Java compatible have to do with being 'fair use'. If anything fair use would be taking a portion of one piece of work and using it within another piece of work to criticize it or to make a point of free speech, it wouldn't be making an exact copy. But none of that even applies here. But it's not like fair use is well defined in law anyways and certainly your unsourced (and mostly anonymous) opinion means nothing.

      "But companies using API of say a open source GPL licensed communication messaging system to reduce the development time on their own Proprietary Software without releasing their code back under the GPL is simply stealing the hard work somebody else has done for their own financial gain."

      Well, a specific implementation of Java is released under the GPL (most of it). Others may make different implementations.

      If someone makes something that can interpret Java code from scratch but they don't release it under the GPL, for instance, that's fine because their software is not a derivative of the implementation that was released under the GPL.

      If someone makes a new API that may have similarities to the Java API and they don't release their specific implementation their new implementation is also a new work, so long as they wrote the implementation from scratch and didn't just copy the GPL code and make some tweaks to it and then closed sourced it and sold that implementation to the public for a profit.

      but for people to develop on the Android API what needs to be released is the API functions. There maybe many different ways to implement those same API functions (different people may write different programs that essentially do the same thing and the same API functions maybe implemented differently on different hardware) but the API, itself, is open for everyone to use.

      "If I wanted to use a Adobe API to make a new Photoshop filter that worked within the original Photoshop program without paying for a licence then that should be "fair use" of the copyright API, because the derivative work based on the API actually complements and extends the original creation."

      Fair use is very poorly defined and you don't just get to make up your own definitions from scratch.

      "But companies using API of say a open source GPL licensed communication messaging system to reduce the development time on their own Proprietary Software without releasing their code back under the GPL is simply stealing the hard work somebody else has done for their own financial gain."

      From my understanding Oracle is not suing because the API implementation hasn't been released under the GPL. They're trying to claim the API itself is copyrightable. The API itself is not something that has source code to release. You can invent an API and have many people write different implementations for it using the same hardware or under different hardware conditions. But you don't really seem to understand the issue well enough to discuss it (both legally, with your poor understanding of fair use, and from a programming point of view). and the court that made the poor decision also seems to poorly understand the issue as well.

      "Reducing and removing copyright does not advance the cause of Open Source software. The GPL and related licences only work when their copyright is legally recognised."

      The GPL is partly a workaround to copyright. Granted, it does require the source code of derivative released works to also be open source as well and that is something that requires copyright law but I'm perfectly fine with copyright lengths being substantially reduced to something reasonable even if it means that the source code of many works would never be released if they are derivatives of public domain GPL works.

       

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        Anonymous Coward, May 13th, 2014 @ 3:27pm

        Re: Re: No copyright doesn't help Open Source

        I found a comment on Soylentnews does a pretty good job summarizing the problems with this.

        by Horse With Stripes (577) on Saturday May 10, @10:16AM (#41579)
        "This is ridiculous. Just think about it ... what if you write a small API that works for your (or your company's) custom applications. That API happens to have a function name that is similar to someone else's. If it's a relatively simple or limited function it could also use similar variable names and/or a data structures. And that's all it takes to violate someone else's copyright?

        This doesn't have to be a big corporation like Oracle. The people who have copyrighted their API could be a small little software trolling company that then hires some cheap labor to download and analyze code from other companies. WTF? This could create a brand new category of copyright trolls who rush to copyright rather generic API calls and then lie in wait for any somewhat successful startup.

        Is the USCO going to publish a directory of copyrighted function names and their definitions so everyone else can avoid using the same names, structures, etc? Of course not.

        Let's hope this plays out all the way to SCOTUS. Then maybe we can get some rulings on this issue as well as software patents."

        http://soylentnews.org/~Horse+With+Stripes/

        Basically, an example of an API would be something like

        If the programmer types in "Print "Hello World"" the text "hello world" would appear on the screen.

        If the programmer types "Scan y" whatever is typed into the keyboard would be inserted into the variable y.

        If the programmer types in "y = y + 3" three would be added to the variable y.

        If the programmer types "Print y" whatever the user typed plus three would be displayed on the screen.

        Bob and Jill can write two different compilers that basically take this source code compile it into something the machine can use. Both compilers would, ideally, take the same source code and compile them into similar programs that do essentially the same exact thing. The API is basically this concept of "Print "Hello world"" (something that's been around long before Java) should cause the text "hello world" to be released. There is no 'source code' to release for that basic concept, it has to be known to anyone developing under the API or else they can't develop under it (ie: the Android API).

         

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          Anonymous Coward, May 13th, 2014 @ 3:28pm

          Re: Re: Re: No copyright doesn't help Open Source

           

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          MrWilson, May 13th, 2014 @ 6:22pm

          Re: Re: Re: No copyright doesn't help Open Source

          Copyrighting function names seems to clash with the similar concept that titles of works and names of characters in stories are not copyrightable. Otherwise, any one word song title like "surrender" or "love" or "hello" would be off limits for anyone to entitle a song. Function names are themselves functional (imagine that) rather than an artistic choice (unless you used a copyrightable phrase of enough length to qualify, which would contradict the concept of efficiency in programming). They can't possibly qualify for copyright anymore than entitling a book "book" would allow you to sue anyone for using the same term to describe their book.

           

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      Lawrence D’Oliveiro, May 13th, 2014 @ 7:31pm

      Re: their own platform that was not comparable with Java

      That’s a peculiar argument. That means that, if Google had copied the whole of the Java API (to keep things “compatible”, as you say), instead of just part of it, then it wouldn’t be an infringement of copyright?

      Since when does copyright infringement depend on copying too little, instead of too much?

       

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      Seegras (profile), May 14th, 2014 @ 4:04am

      Re: No copyright doesn't help Open Source

      Copyright covers implementations ("works") and not ideas.

      You can rewrite Shakespeare, in you own words, and it's NOT Shakespeare any more, indeed, it has legally nothing to do with it, and you get a copyright on it.

      Or you can copy Shakespeare, word-for-word, and it remains Shakespeare (and as it happens, public domain), and you get no copyright on it. Even if you did retype everything by hand, and even if it was a tremendous amount of work.

       

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      Anonymous Coward, May 14th, 2014 @ 5:08am

      Re: No copyright doesn't help Open Source

      "simply stealing the hard work somebody else has done"simply stealing the hard work somebody else has done"

      Rob, I suggest some study in the field of computer science might be beneficial because you apparently lack some background and history.

       

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      Ian, May 14th, 2014 @ 6:26pm

      Re: No copyright doesn't help Open Source

      Totally agree.

      1.) Google should have bought a license. In retrospect this would have been an insignificant cost and would have benefited both Java and Android.

      2.) They copied the API for use completely outside of a Java context (their own completely incompatible VM). That is a copyright violation pure and simple. There is considerable effort into designing an API. There was considerable 'value' in the existing knowledge of Java devlopers that Google wanted to exploit ... for free.

      The argument for API usage being stymied because APIs can now be copyrighted is bogus. APIs are meant to provide access. Those that want the public to have full access and innovate will simply make their API available with a license that explicitly states all reuse options.

       

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        Anonymous Coward, May 14th, 2014 @ 7:13pm

        Re: Re: No copyright doesn't help Open Source

        There was considerable 'value' in the existing knowledge of Java devlopers

        And thus all of these developers, with their existing knowledge, are now mentally contaminated (*).

        (*) You are not expected to understand this.

         

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        John Fenderson (profile), May 15th, 2014 @ 9:01am

        Re: Re: No copyright doesn't help Open Source

        "Google should have bought a license."

        Why would doing this even occur to them? Before this decision, there was never a hint that such a thing was necessary. It goes against the standard practice of the entire industry.

        "They copied the API for use completely outside of a Java context (their own completely incompatible VM). That is a copyright violation pure and simple."

        Well, I guess it is now, but that's a new development -- and one that should not be. It goes against everything that has come before now, and is harmful to all concerned. Also, in my opinion, an API is not copyrightable material at all.

        "The argument for API usage being stymied because APIs can now be copyrighted is bogus."

        It's not bogus at all. This ruling means that using an API you did not develop is now risky. Licensing does not mitigate this risk by that much. Should the company you're licensing with decide to not adhere to the license, you're pretty much screwed unless you have a lot of money for lawyers.

        Even if you do have a warchest, you're probably still screwed. You're likely to come out of such a lawsuit poorer for it even if you win.

         

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      WorBlux, May 14th, 2014 @ 7:09pm

      Re: No copyright doesn't help Open Source

      Dude, the Linux kerenel implements a incompatible POSIX-like API.

      See also the first IP release with utilities and the IP stack.

      It's not actual interoperability per se that's very important it's about weather the bit you copy is aimed at interoperation.

       

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    Anonymous Coward, May 13th, 2014 @ 2:58pm

    how many US copyrights have been ruled recently (last 10 years?) that haven't been fucking ridiculous?? the problem is the people ruling on them! they seem to be as stupid as those in the USPO!

     

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    Anonymous Coward, May 13th, 2014 @ 3:04pm

    If you define an API as an interface between two (software) systems and this can be copyrighted, couldn't this same ruling be used to prevent auto parts manufacturers from copying the form factor of an oil filter or printer toner manufacturers from copying the form of the toner?

     

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      Anonymous Coward, May 13th, 2014 @ 3:14pm

      Re:

      … oil filter or printer toner…


      17 U.S.C. § 101 Definitions
      A “useful article” is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a “useful article”.


      (I realize this bare definition is not, by any stretch, a complete answer to your question. This comment is not intended to be such a final answer.)

       

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    Ben (profile), May 13th, 2014 @ 3:46pm

    It's Oracle we should be criticising

    The pressure point here is not the courts. We all know that the vast majority of lawyers and judges are specialists in their subject ... the law. However, almost all of them have terrible blind spots when it comes to understanding the real world (just like physicists!). So it's no wonder the lawyers don't get it ... and just want to keep on making money out of making sure nobody quite gets it.

    The people we should be ripping apart here are ORACLE! They're the idiots who don't understand that their own products implement published APIs. Specific example: Oracle sell WebLogic - a web application server (let's not get into the merits, or otherwise, of the technical capabilities of the product). This HAS to respect the 2.5 or 3.0 web application API (or specification, if you prefer), otherwise no developer is going to use the tool to deploy their applications.

    To the best of my knowledge, Oracle don't own the web application API, but do they really want to license the use of the spec from those that do?

    This is, of course, just one example. Oracle's products also implement JDBC and ODBC APIs, and many others in the course of implementing various interfaces. Most fundamentally of all, they use APIs to talk to the OS and disk systems upon which the Oracle DB must run.

    Oracle are the BIGGEST idiots here. This WILL come back and bite them in the proverbial. And it won't take long, either.

    It's not the courts who need to see sense, it's Oracle that need to grow some balls and get over themselves.

     

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    saulgoode (profile), May 13th, 2014 @ 3:48pm

    Begging the question

    Neither Sacha Labourey nor the EFF discuss the legal issues of copyright in APIs. They merely support the beneficial nature of not needing to seek permission for interoperable and competitive products -- ignoring that the Fair Use doctrine is the traditional means of addressing such concern (not to mention competition in the marketplace favoring interoperable solutions).

    Tim Lee misrepresents Samba as duplicating the Windows file-sharing system, ignoring that SMB was developed mainly by IBM with some assistance from Microsoft, Intel, and 3com. An attempt by Microsoft to sue the Samba project would have likely led to anti-trust charges (and indeed Microsoft was forced to provide documentation and licensing to Samba because of anti-trust litigation). He is also mistaken in suggesting that copyright liability might occur for "new code from scratch", should it happen to be similar enough. Copyright does not work that way; independent development which might result in identical works is never infringing.

    Jonathan Band is mistaken about the case precendents (the U.S. cases, anyway) examined by the CAFC in that those cases involved Fair Use defenses, and did not address whether APIs obtained copyright protection in the first instance. An issue that was never tried shouldn't qualify as precedent in later litigation.

    The CAFC ruled very narrowly on Judge Posner's decision that the Java APIs did not qualify -- as a matter of law -- for copyright protection. It was entirely appropriate for them not to rule on the factors of Fair Use and copyright abuse, which are yet to be decided.

     

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      Mike Masnick (profile), May 13th, 2014 @ 4:32pm

      Re: Begging the question

      Jonathan Band is mistaken about the case precendents (the U.S. cases, anyway)

      Jonathan Band -- the same guy who literally wrote *the book* about the copyrightability of APIs -- is mistaken? Really?

      http://mitpress.mit.edu/books/interfaces-trial-20

      You sure you want to make that argument?

      The CAFC ruled very narrowly on Judge Posner's decision that the Java APIs did not qualify -- as a matter of law -- for copyright protection.

      Judge Posner had nothing to do with this case.

       

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        saulgoode (profile), May 13th, 2014 @ 6:48pm

        Re: Re: Begging the question

        My argument is not premised upon a resume or bibliography, but on what was tried in the alleged precedents.

        The copyright issue in Sega v Accolade concerned whether the copying performed during reverse engineering should be considered Fair Use. In Oracle v Google, Google did not reverse engineer Java but instead worked from the prodigious documentation available.

        In CA v Altai, the court's analysis first removed the elements of the copied program that were either in the public domain, or dictated by external factors such as operating system calls, and then deciding there was no organizational left afterward worth protection. (When designing a programming language from scratch, as in the case of Java, there are far fewer external factors to dictate the structure required to accomplish a particular task.)

        Lotus v Borland was admittedly about copyrightability of an interface and might apply, but it took place in the 1st District and not binding to a 9th Circuit appeal*.

        There are many reasons why one may decide that Google did not misappropriate Java's "structure, sequence, and organization" -- without resorting to the conclusion that there is no such SS&O original to the APIs at issue, or to APIs in general.

        Personally I think that everyone involved in this case has made mistakes and/or misbehaved. Sun should have more precisely defined what they felt was protected, Google should have GPLed their code (once OpenJDK was announced), Oracle should have sought cooperation rather than litigation (there actions have fairly well torpedoed Java's future), and the lawyers have been arguing all the wrong issues.

        The biggest culprits, though, are the legislators in Congress who have enacted such an untenable copyright regime that it provides no certainty as to what acts are permitted or prohibited, leaves well-intentioned businesses and people at risk of suffering debilitating penalties, and is doomed to waste further billions of dollars in litigation, clogging up the courts, with no sign of any attempt at correcting it.


        "Judge Posner had nothing to do with this case."

        You are correct. I misspoke. I should have said Judge Alsup. And to be precise, in his decision Judge Alsup did not rule that APIs were generally not copyrightable, merely that the Java APIs at issue in this case were not.


        * Though tried by the CAFC, they were compelled to judge the case as though it'd been appealed to the 9th Circuit Court of Appeals.

         

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          Karl (profile), May 14th, 2014 @ 4:44am

          Re: Re: Re: Begging the question

          In Oracle v Google, Google did not reverse engineer Java

          That's exactly what they did. Their implementation is a "clean room" implementation.

          In CA v Altai, the court's analysis first removed the elements of the copied program that were either in the public domain, or dictated by external factors such as operating system calls

          I haven't read it (yet), but when you're making an operating system call, you are making a call to the operating system's API. If an API is copyrightable, then so are those system calls. That works against your argument, if I understand it correctly.

          Google should have GPLed their code

          Their code is available under the Apache 2.0 license, including the Dalvik virtual machine.

          The biggest culprits, though, are the legislators in Congress who have enacted such an untenable copyright regime that it provides no certainty as to what acts are permitted or prohibited, leaves well-intentioned businesses and people at risk of suffering debilitating penalties, and is doomed to waste further billions of dollars in litigation, clogging up the courts, with no sign of any attempt at correcting it.

          On that, we certainly agree.

           

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            Anonymous Coward, May 14th, 2014 @ 9:49am

            Re: Re: Re: Re: Begging the question

            In CA v Altai…
            I haven't read it (yet)

            Long about 2004, 2005, somewhere in there, I put up on the web a nice list of signicant copyright cases—with special emphasis on software copyright. That was just before Google rolled out “Scholar”. It's kind of a shame that site's been dead for a few years now.

             

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            saulgoode (profile), May 15th, 2014 @ 7:56pm

            Re: Re: Re: Re: Begging the question

            That's exactly what they did. Their implementation is a "clean room" implementation.
            Actually, the trial testimony was quite unclear about the mechanism that resulted in the declarations of the 37 APIs being "word-for-word, symbol-by-symbol" the same (according to Google's witness). You may be correct that Google achieved this through reverse engineering but I don't recall seeing this either claimed or substantiated (the amicus brief from Professor Ralph Oman, former Registrar of Copyrights, asserted that Google had not reverse engineered the API declarations).

            I haven't read it (yet), but when you're making an operating system call, you are making a call to the operating system's API. If an API is copyrightable, then so are those system calls. That works against your argument, if I understand it correctly.
            I would not say that by the mere fact of an interface being an "operating system call", it does not obtain copyright protection; it would depend upon whether that interface is to things that were original, creative choices made by the operating system programmers.

            For example, if displaying the letter "A" on the screen is achieved by moving the number "65" to memory location 0x4e00 then the system call is derived from the non-copyrighted hardware. However, if the OS call comprises passing a complex specified data structure to be inserted into another data structure and manipulating a third data structure for scheduling a particular operation upon the passed data, then the definition and organization of all of those various elements were not dictated by the need to interface with non-copyrighted hardware, but by the desire to avail oneself of the copyrightable creative choices of the OS designer.

            Note that I am not saying that one should not be able to make such calls, but this is not owing to the lack of copyrightability of the API. Most commonly one is licensed to make such calls but even if they are not, there is still a strong case to be made for Fair Use.

             

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              Anonymous Coward, May 15th, 2014 @ 9:37pm

              Re: Re: Re: Re: Re: Begging the question

              … original, creative choices…

              Setting aside, for the moment, the CAFC opinion under discussion, is it your opinion that the law in the Ninth Circuit denies application of the useful articles doctrine beyond pictorial, graphic, or sculptural works?

              That is, in the Ninth Circuit, can a literary work possess utilitarian aspects? If so, does the Copyright Act grant exclusive rights to reproduction etc. of those utilitarian aspects?

               

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              Karl (profile), May 15th, 2014 @ 11:05pm

              Re: Re: Re: Re: Re: Begging the question

              I would not say that by the mere fact of an interface being an "operating system call", it does not obtain copyright protection; it would depend upon whether that interface is to things that were original, creative choices made by the operating system programmers.

              The API is nothing other than the specification of those system calls. The "things that were original, creative choices" in your case would be the implementation of the API. That is the "thing" that responds "to" those API calls. And that "thing" was implemented from scratch by Google.

              For example, a system call will not do anything without an operating system that accepts those calls. And nobody is arguing that the operating system, itself, is not copyrightable.

              The argument that Oracle made - and that the Court accepted - was that the names of the system calls can be copyrighted independently of any system that implements it.

              So, for example, if the Windows system accepts a system call named "clearScreen," then any other operating system (Linux, OSX, whatever) that also accepts a system call named "clearScreen" would be infringing on Microsoft's copyright. Even if the operating systems themselves share no common code whatsoever.

              A literary analogy: software that implements system calls would be akin to a novel written in the English language. An API would be akin to the grammar rules of the English language.

              This probably doesn't come across in the Court's ruling, because the Court doesn't seem to understand what an API actually is.

              If you're curious, the entire API for the C++ standard template library can be found here:
              http://www.cplusplus.com/reference/

              Note that there is no software available on the site at all. But, if this Court's ruling stands, that wouldn't matter. If Bjarne Stroustrup held a copyright on the API for the standard template library, that website would be infringing upon his copyright.

               

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          Anonymous Coward, May 14th, 2014 @ 9:45am

          Re: Re: Re: Begging the question

          In CA v Altai, the court's analysis first removed the elements of the copied program that were either in the public domain, or dictated by external factors such as operating system calls, and then deciding there was no organizational left afterward worth protection.

          Computer Associates v Altai (2d Cir. 1992) concerned itself with application programs at the top of the stack.

          The Altai court had no need to consider libraries intentionally designed for use higher up the stack. The Altai court was not confronted with a situation where the designers' own intentional choices created external interfaces.

           

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      Anonymous Coward, May 14th, 2014 @ 5:13am

      Re: Begging the question

      " They merely support the beneficial nature of not needing to seek permission for interoperable and competitive products"

      An API is not a product.

      Warning - Car analogy:
      This is like claiming a steering wheel is a car.

       

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    Anonymous Coward, May 13th, 2014 @ 5:31pm

    When Oracle touches a technology it gets contaminated.

     

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      John Fenderson (profile), May 14th, 2014 @ 11:17am

      Re:

      Indeed. Have we all forgotten what Oracle promised when they bought Sun (and therefore Java)? They promised that they wouldn't pull shit like this.

       

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    Anonymous Coward, May 13th, 2014 @ 7:49pm

    Samba is a great example of how APIs allow computers running different operating systems to communicate with each other. Samba allows computers running Microsoft Windows to communicate and share files with computers running GNU/Linux, and vise versa.

    As noted in Mike's article, Samba doesn't use any of Microsoft's software code in Samba. Samba is written from the ground up using completely different software code. The only thing Samba and Microsoft's Network File Sharing have in common, is the API calls. Which allows the two incompatible operating systems to communicate with each other across networks.

    Oracle basically doesn't want any interoperability between software or hardware components, so they can 'maximize profits' through vendor lock-in caused by incompatibility issues.

    Oracle doesn't care about the far reaching damage this causes to the software and hardware industries. Damage such as fragmentation and constant code rewrites due to nothing being compatible, interoperable, or standardized.

    Copyrightable APIs will harm the US economy as a whole, and retard innovation because nothing will be compatible, interoperable, or standardized. The future of the tech sector will look very similar to the fragmentation developers face with all the different versions of Android. Gingerbread, Ice Cream Sandwich, Jelly Bean... only much, much worse.

    I think that probably sums up CACF's ruling. They not only turned the tech sector a giant Android fragmentation mess. They actually made the US tech sector much worse than Android's fragmentation problem.

     

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    Anonymous Coward, May 13th, 2014 @ 8:09pm

    future vision

    So, keeping this simple. If this ruling stands and hampers our ability to get systems, software and other things to work together then we're back to the good old days of no interoperability. When this system couldn't understand this one etc. Great idea Oracle! So, what can we do? Stop using not only their APIs, but also anything else they own. I guess this is why open source came to be with the premise of sharing to benefit all and thus if it were me I'd leave these propritery guys in the dust. Their market share goes to the tollet and sodo they, however that's a really long hold out game, because you have to get corporations to see the light. If they kill the APIs then you'll need something that works and plays well together. Open source seems to be the vehicle to get there. Wonder how many APIs Oracle uses, uh whoopsie.

     

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      Anonymous Coward, May 13th, 2014 @ 8:22pm

      Re: future vision

      But software uses an ‘API‘ to communicate with hardware. Hardware is subject to all sorts of silly patents. It will be very hard to build non-infringing hardware regardless of prior art, obviousness, or who really came up with the hardware. Just imagine an open platform hardware startup faced with huge patent trolls with huge patent portfolios. This isn't something that can be solved by simply avoiding the problem.

       

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        Anonymous Coward, May 14th, 2014 @ 5:22am

        Re: Re: future vision

        "software uses an ‘API‘ to communicate with hardware"

        This is not entirely correct. The hardware manufacturers spend a great deal of time and effort (well - some of them do) developing drivers for their hardware. Their drivers are made to be compatible (sort of) with existing operating systems. A driver is not an Application Programming Interface, it may utilize an API like structure allowing ease of use - lol.

         

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          Anonymous Coward, May 14th, 2014 @ 6:08am

          Re: Re: Re: future vision

          Fair enough

           

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            identicon
            Anonymous Coward, May 14th, 2014 @ 8:52am

            Re: Re: Re: Re: future vision

            (drivers basically give an operating system a common interface to communicate with different hardware interfaces).

             

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              identicon
              Anonymous Coward, May 14th, 2014 @ 4:52pm

              Re: Re: Re: Re: Re: future vision

              No, not really.

              Typically, each OEM hardware type requires its own unique driver. Iterations of that hardware from that manufacturer will usually be accompanied by an update that driver. For example, a driver for an HBA from IBM will not work on a SCSI adapter from IBM.

               

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    Anonymous Coward, May 13th, 2014 @ 8:41pm

    Logic

    On p.30, the CAFC concludes (not merger, unless (only-one or limited)) citing Satava v Lowry (9th Cir. 2003) for the proposition (merger, if only-one).

    [M]erger cannot bar copyright protection for any lines of declaring source code unless Sun/Oracle had only one way, or a limited number of ways, to write them. See Satava, 323 F.3d at 812 n.5 (“Under the merger doctrine, courts will not protect a copyrighted work from infringement if the idea underlying the copyrighted work can be expressed in only one way, lest there be a monopoly on the underlying idea.”).

    Satava, it should be noted, was not a computer code case.

     

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    madasahatter (profile), May 13th, 2014 @ 10:16pm

    API value

    The article noted the real value of an API is when developers use them. At a bare minimum they can be discreet advertising for the company. How many maps on websites have a copyright for the publisher of the mapping application (Bing, Google, or Mapquest)? But I doubt they wrote the webpage.

     

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    Anonymous Coward, May 13th, 2014 @ 11:14pm

    APIs are na interface mechanism, and should not be permitted under copyright protections.

    Now, if only Oracle had filed patents....

     

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    identicon
    Anonymous Coward, May 14th, 2014 @ 3:39pm

    Seriously, we need to get the assholes who push this thing through out of power yesterday.

     

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    identicon
    Anonymous Coward, May 16th, 2014 @ 4:18am

    ORACLE wins then ORACLE loses - the culture is all based on Ellison's own way of doing things

    Many years ago, I reported a particular problem to ORACLE regarding their Version 6 DBMS. I supplied all the details (including query details) that demonstrated the problem. The response from ORACLE Support was that I needed to supply much more details than what I supplied. In effect do their work for them. I declined. I had developed a work around in Visual Basic that cut the processing time from 8 minutes to sub second.

    As the years went by, I tried the same basic SQL code in V7, V8 and V9. The same problem occurred in each version.

    When making recommendations of what sort of DBMS to build various systems, I ensured that my clients knew that ORACLE had a difficulties with certain kinds of problems. I actually don't have much confidence in ORACLE being capable of enhancing their systems in basic ways. They certainly jump on the latest band-wagons and they do give reasonable lunches for their seminars when discussing the latest band-wagons.

    It is one of the reasons that I have moved to PostgreSQL as my DBMS of choice.

    Lastly, JAVA (along with C++) is the latest incarnation of COBOL which means that businesses will stick with it for a long time yet. It is up to the developers to shift from this to more tolerable languages like ....APL, K, Basic, CLU, Scheme, LISP, assembler, etc.

     

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      John Fenderson (profile), May 16th, 2014 @ 9:31am

      Re: ORACLE wins then ORACLE loses - the culture is all based on Ellison's own way of doing things

      Yes, Oracle has been a horrible company for a very long time. Their products tend to be poorly engineered and even more poorly supported. They are too expensive. The company itself is obnoxiously litigious and bullying. I'm hard pressed to think of a single good thing to say about them.

      My opinion of them is not because of this API bullshit -- that's completely in character with how they've been for nearly their entire existence. They are awful, and eager to burn the landscape down so they can keep themselves warm for a night.

       

      reply to this | link to this | view in chronology ]


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