You are correct - you can’t copyright the language either, and really never have been able too. If you accept that “ABI”s aren’t copyrightable, also the case (See Intel Vs NEC, though mostly about accusing NEC of creating derivative microcode), etc. then the same logic is extensible to high-level languages. The judge even states that is the law now. I suggest you read the ruling because it has a huge amount of historical info on Copyright decisions and how they have evolved, along with references to the latest changes circa 1980 to the actual provisions in the law.
Note - there ARE two counter-prevailing decisions that lend some support to your point of view. It is just that the majority of decisions have gone along the way the judge took it. In his opinion he DID make a decision in uncharted territory for APIs explicitly. The decision is also not broad, i.e. only applies to this case. Likely affirmation at the appeals level will widen it’s applicability.
The thing is - you have ANOTHER choice - copyright isn’t the vehicle for the kind of protection you are looking for, but rather patents are. That is one of the BIG reasons why copyright can’t go where you want it too, and if you read the judge’s decision, that becomes apparent. Copyright lasts too long - and granting a monopoly for 90 years or whatever it is that Copyright lasts today is not how a free market system works.
Patents grant exactly that - a government sanctioned monopoly for 20 years. For exposing your invention to the public, you have 20 years to make a profit on it protected by law. Now, reality is that patents are notoriously hard to defend. My Uncle was a case in point. He invented a unique covering system for the back of a truck. He produced and marketed it. He was continually having to police copy-cats, and it ate up a fair amount of his profits. Finally it was easier to sell the business to a bigger manufacturer.
I am strictly opposed to software patents and will never seek one for a few simple reasons.
1) math is not patentable according to patent law; one can’t get a patent issued for 2+2=4. What the knucklehead LAWYERS don’t want to admit (for they’d have much less business) is that algorithms fall exactly into that realm. If I want to write a program that allows me to enter in every State fair I go to and track a few pieces of information about them, then you get the same idea - completely on your own - and we both write such a program, for either of us to be able to limit what the other can do is preposterous. We would have to design the thing with some fields like “Fair Name”, “Start Date”, etc. We’d both have a search functionality that allowed us to look up fairs that matched search criteria that included those fields. This would involve naming that is unpatentable and basic search functionality techniques that are widely known, fundamentally based on math and unpatentable.
2) Which brings out the second point, novelty. And the ugly truth that can’t be truthfully avoided is that if me working in my garage and you working in your garage, both completely independent of each other, (as well as millions of other programmers) can come up with essentially the same program in a few days, then obviously there’s nothing that novel about what we’re accomplishing.
3) Pure-math algorithms, such as google’s pagerank, are simply that - pure math, and strictly speaking should not be patentable. Instead of limiting the patent description to the essential algorithms presented in a generic and mathematical way, lots of gobbledygook wording related to the particular programming field that the patent seeker is trying to “lock up”, (for “pagerank” this is links, backlinks, nodes, etc.) is added around the essential algorithms. In this way the patent application looks like a nice, big, professionally-written spiel about the field - it looks so good, it has to be credible. The pagerank patent itself claims to be a more sophisticated version of commonly-known algorithms. Essentially, it’s something like this:
I have 2 ducks in a puddle in my back yard
+ (I go and get two ducks and bring them home)
= 4 ducks are now at my house.
And this obviously would apply to anything in the field of counting ducks or putting ducks into rows or any other formation, either on land, water or in the air. Because it’s obviously the heart of the invention, the novel application of the widely-known adding 2 plus 2 idea to the new and challenging field of duck management.
Google’s patent arrangement:
The pagerank patent belongs to Stanford, where Page and Brin were graduate students. Having Stanford own the patent was the best way to start commercializing the product immediately and have no potential legal flak from Stanford such as occurred between the Netscape founders and Univ. of Ill. Brin and Page then founded google which exclusively licensed the patent from Stanford - the payment for the license was stock in google from which Stanford eventually made a very large profit. One could say that this was a very equitable arrangement for all concerned - and it truly was. Stanford only gets a lot of money if Page and Brin have a big upside, Page and Brin have no real downside on their payment to Stanford if google had failed as a business.
The effect of patents on innovation and small business (that weird “growth engine thingy”) using google as an example:
So Page and Brin had very little cost ? No, they needed to be attending Stanford to get this arrangement. Most people seeking to start a small business are not Stanford PhD candidates.
So Stanford provided essential help to Page and Brin in devloping pagerank ? No, the primary leverage Stanford had to get paid for the work of Page and Brin on pagerank was the potential for litigation on their part. The equipment and capital was mostly the minds of Page and Brin and some computers, which, today, don’t cost much.
Having the patent issued to a patent-holder with large financial resources to retain the best patent defense attornies makes everyone else in the world steer clear of the pagerank patent. If anyone does work on internet search algorithms at all they need to spend extra time and thought on designing around the pagerank patent. This is something that small inventors who have very little funds will not have the resources to waste time on. So inventors with small amounts of funds will be much less likely to work on internet search algorithms.
Alternatively, if software was not patentable and simply had to be maintained as a trade secret, as small inventors saw google’s success early on, many people would start thinking about internet search algorithms. Inventors with small amounts or no funds would be very likely to work on such algorithms. Even though no one would be able to legally see the pagerank algorithm, there would be a hefty amount of independent competitive research going on. Other competitive search engines would have popped up much sooner that used automated bots, as it would become apparent very quickly that no humans were entering webpages into the google database and ranking them manually as Yahoo did. Perhaps google would not have gotten as big if there were others who had success early on; perhaps they would have come out on top anyway. The biggest cost to society is that of opportunity cost: perhaps someone else would have invented something much better than google, but the effort was simply never embarked on.
Getting a patent issued is a big hurdle for small business that has no sophistication in terms of legal and patent issues. The elites of America who send their children to the best colleges - and these colleges themselves - are easily able to set up arrangements such as google’s early arrangements. Trouble is, for the county college attendee, etc., who may be very smart but typically is poor and has practically zero connections, setting up such arrangements is an enormous hurdle. Especially since everyone they meet will want to cash in bigtime on this person’s idea - if they even take them seriously at all. So instead of getting the best deal possible throughout the whole process from initial start up to the final pump and dump in the stock market - exactly like houseSYSTEM, er, I mean, facebook - they wind up getting pushed out very early in the process.
Put simply, patents favor those with at least 30k or so and some serious time (time=money) to go into the effort of securing a patent. They are therefore attractive to large businesses and people who can afford them and are interested in obtaining them. They hold back entrepreneurial success for most people who would otherwise would be making and doing more and better things.
Some ideas - or parts of ideas - an inventor may want to put into the public domain. This is also fine. They may not desire to commercialize their idea at all but still make it available to the public, or they may want to make their public license cover perhaps one invention and have others that are trade secrets, which is a possible scenario that may work well.