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Appeals Court Doesn't Understand Difference Between Software And An API; Declares APIs Copyrightable
techdirt ^ | 9 May 2014 | Mike Masnick

Posted on 05/12/2014 1:55:35 PM PDT by ShadowAce

We sort of expected this to happen after the appeals court for the Federal Circuit (CAFC) held its oral arguments back in December, but CAFC has now spit at basic common sense and has declared that you can copyright an API. As we noted, back when Judge William Alsup (who learned to code Java to better understand the issues in the case) ruled that APIs were not subject to copyright protection, his ruling was somewhat unique in that it was clearly directed as much at an appeals court panel who would be hearing the appeal as it was at the parties. Alsup rightly suspected that the judges on the appeal wouldn't actually understand the issues as well as he did, and tried to break it down clearly for them. Unfortunately, the three judge CAFC panel did not pay attention. The ruling is so bad that legal scholars are suggesting that it may be as bad as the horrific ruling in the Garcia case.

It's tragic that this case ended up before the CAFC. It shouldn't be there. It should be before the 9th Circuit (who issued the Garcia ruling, so it's not like they're particularly good either...), but because this case started out as a patent lawsuit, even if the patent stuff went away early, the appeals went to CAFC. CAFC is already famous for its maximalist bent on patents, and so it's perhaps not too surprising that it takes a similar view towards copyright. Or, as law professor James Grimmelmann astutely notes: "Is there any body of IP law that the Federal Circuit hasn't done its best/worst to screw up?" The answer, James, may be publicity rights. But, give them a chance and we'll see what it can do there too...

As for the ruling itself... well... it's bad. The court seems to not understand what an API is, confusing it with software functionality. It also appears to misread Judge Alsup's ruling, thinking that he's mistakenly using a fair use analysis to determine whether or not something is copyrightable. But that was not the basis of Judge Alsup's ruling. He very specifically noted that the "command structure is a system or method of operation under Section 102(b) of the Copyright Act and, therefore, cannot be copyrighted." The CAFC panel doesn't seem to understand this at all. In case you're not readily up on your Section 102 knowledge, it covers what is copyrightable subject matter, and (b) is pretty explicit:

In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
Got that? Well, CAFC doesn't seem to get it. At all. They basically seem to think that because the API is "big" it must therefore be copyrightable as a "literary work" even though -- as Alsup rightly pointed out -- it's nothing more than a "system or method of operation" which 102(b) clearly states is uncopyrightable. And yet, CAFC spends many pages arguing how an API is not unlike a "literary work", ignoring its intent and purpose. CAFC argues that the various names that Sun/Oracle used for naming things in the API are subject to copyright because they're "creative." Yet, as Grimmelmann against notes, if that's the case, Brian Kernighan should sue Oracle for its "copying" of his creative choices in "int," "short," "long", "float", "double", and "char."

The original ruling pointed to the ruling in Lotus v. Borland, which found that pull down menus in an app weren't copyrightable. But here, the CAFC rejects this (in part) by saying that a big difference is that the "source code" wasn't copied. But in that case, the menu structure and names were copied -- which is basically the same thing that was copied from the Java API. But the CAFC judges don't even seem to realize that.

It seems fairly clear that the CAFC judges don't understand the difference between an API and software. And thus they make a decision that makes no sense. There is no distinction recognized when it comes to the functionality of an API and how it's entirely different than the purpose of the software itself. This is especially clear towards the end, in which the CAFC ruling misrepresents some discussions on whether certain functionality is best protected by patents or copyright. But the problem is that they misinterpret statements people are making about APIs, thinking that those statements were made about software as a whole. This is just a flat-out fundamental misunderstanding of what an API is, assuming that it's just software. Take the following example:
Many of Google's arguments, and those of some amici, appear premised on the belief that copyright is not the correct legal ground upon which to protect intellectual property rights to software programs; they opine that patent protection for such programs, with its insistence on non-obviousness, and shorter terms of protection, might be more applicable, and sufficient.
But that's not true. No one is arguing that patents are more suitable overall for software. In fact, many in the software field have long argued the exact opposite. What they're saying is that copyright is inappropriate for APIs -- but the CAFC judges don't seem to be able to distinguish between APIs and software. In fact, they're so confused that they throw a bogus parenthetical "software" before "interfaces" in quoting Google:
Google argues that "[a]fter Sega, developers could no longer hope to protect [software] interfaces by copyright . . . Sega signaled that the only reliable means for protecting the functional requirements for achieving interoperability was by patenting them."
Note that "[software]" thrown in before interfaces? Google is talking about whether APIs -- "application programming interfaces" -- are copyrightable. Not whether or not software is copyrightable. And yet the CAFC doesn't even seem to realize this. Ridiculously, CAFC then uses its own misunderstanding and misquote, and points to some of the (many) arguments where people argue that patents are inappropriate for software to dismiss Google's argument about APIs. It honestly doesn't realize that it's comparing two totally different things. What lots of people agree on: software shouldn't be patentable and APIs shouldn't be copyrightable, but software can be copyrightable and API functionality may be patentable. But by confusing APIs and software, CAFC totally misreads both arguments.

This is a disaster all around. Of course, it's not over yet. Google can (and likely will) seek a review of this ruling, either en banc or by petitioning the Supreme Court. And even if that doesn't happen, the CAFC ruling tosses it back down to the district court for an entirely new battle about whether or not -- if the API is covered by copyright -- Google's use was fair use. So, there are still a few more years (and many more millions) to be thrown at this before there's any real conclusion. In the meantime, CAFC has mucked up another form of intellectual property law through a basic (and near total) misunderstanding of technology.


TOPICS: Computers/Internet
KEYWORDS: copyright; software

1 posted on 05/12/2014 1:55:35 PM PDT by ShadowAce
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To: rdb3; Calvinist_Dark_Lord; JosephW; Only1choice____Freedom; amigatec; Still Thinking; ...

2 posted on 05/12/2014 1:55:58 PM PDT by ShadowAce (Linux -- The Ultimate Windows Service Pack)
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To: ShadowAce
That's just jaw-dropping. Why are idiots with no understanding making rulings on complex technical issues? The entire IP thing has gotten completely out of hand.

Excuse me while I go patent and copyright some system calls....

/johnny

3 posted on 05/12/2014 2:02:38 PM PDT by JRandomFreeper (Gone Galt)
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To: ShadowAce

An API library is software. So it fits with copyrighting software so nothing wrong there. I just think there is a lot of software that’s copyrighted or part of an IP package that doesn’t do anything unique or non-intuitive.


4 posted on 05/12/2014 2:05:59 PM PDT by Usagi_yo
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To: ShadowAce

What is an API? What is it an abbreviation for?


5 posted on 05/12/2014 2:10:57 PM PDT by expat2
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To: expat2

Application Program(mable) Interface. You see these two versions out there. And yes, it is software and patentable.


6 posted on 05/12/2014 2:13:35 PM PDT by SgtHooper (This is my tag!)
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To: expat2

Maybe this?

“In computer programming, an application programming interface (API) specifies how some software components should interact with each other.

In addition to accessing databases or computer hardware, such as hard disk drives or video cards, an API can be used to ease the work of programming graphical user interface components. In practice, many times an API comes in the form of a library that includes specifications for routines, data structures, object classes, and variables. In some other cases, notably for SOAP and REST services, an API comes as just a specification of remote calls exposed to the API consumers.[1]

An API specification can take many forms, including an International Standard such as POSIX, vendor documentation such as the Microsoft Windows API, the libraries of a programming language, e.g., Standard Template Library in C++ or Java API. Web APIs are also a vital component of today’s web fabric. An API differs from an application binary interface (ABI) in that an API is source code based while an ABI is a binary interface. For instance POSIX is an API, while the Linux Standard Base is an ABI.[2]”

Source: Wikipedia


7 posted on 05/12/2014 2:14:19 PM PDT by trisham (Zen is not easy. It takes effort to attain nothingness. And then what do you have? Bupkis.)
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To: Usagi_yo

“An API library is software. So it fits with copyrighting software so nothing wrong there.”

Nope. An API is NOT software. An API is a specification, like the list of ingredients in a cake. A list of cake ingredients IS NOT copyrightable, though a specific, written recipe that lists the ingredients IS copyrightable.

Likewise, a software library that implements an API IS copyrightable.

So, ideas are not copyrightable, but implementations of ideas rendered in terms of media ARE copyrightable.

This is an insane ruling.


8 posted on 05/12/2014 2:19:02 PM PDT by catnipman (Cat Nipman: Vote Republican in 2012 and only be called racist one more time!)
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To: Usagi_yo
"An API library is software. So it fits with copyrighting software so nothing wrong there. I just think there is a lot of software that’s copyrighted or part of an IP package that doesn’t do anything unique or non-intuitive."

True. If software is subject to copyright, then an API should as well.

One thing that you're missing, however, is that copyright protects an expression from being copied, not any form of functionality. Ergo, it is perfectly okay for software not to do "anything unique or non-intuitive," or even work, to be copyrighted.

Further, a person who re-creates an API from scratch and without accessing the original API violates no copyright even if the code is 100% identical. That said, the likelihood of 20 lines of independently designed code being identical is highly remote.

Just, FYI, I am an IP attorney.

9 posted on 05/12/2014 2:23:50 PM PDT by Smedley (It's a sad day for American capitalism when a man can't fly a midget on a kite over Central Park)
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To: JRandomFreeper
Why are idiots with no understanding making rulings on complex technical issues?

One could say the same of medicine, energy, farming, forestry, or any older sector of American industry that has been systematically stifled by government.

Software had a good run - it left government so baffled for nearly 50 years that it remained free to grow with little interference. But government wants the same cut it has been getting from older industries, and software is just too lucrative to continue to be left alone.

If we expect to stay employed, we had better start studying for our FCSE (Federally Certified Systems Engineer) exams. :)

10 posted on 05/12/2014 2:25:50 PM PDT by Mr. Jeeves ([CTRL-GALT-DELETE])
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To: ShadowAce
Astounding. Lawyers continue to destroy the software industry (and others), blundering about in fields they do not understand.

If this ruling stands, Brian Kernighan SHOULD sue Oracle, Apple, and Microsnot for copying "int" and "float".

11 posted on 05/12/2014 2:27:58 PM PDT by backwoods-engineer (Blog: www.BackwoodsEngineer.com)
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To: backwoods-engineer

I get dibs on “;”!


12 posted on 05/12/2014 2:50:53 PM PDT by Dalberg-Acton
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To: catnipman

I do understand the issue of an API being a standard, but also software. The standard becomes functional, and therefore not subject to copyright. The code that goes into the API can be subject to copyright, however.

There is an excellent analysis available - and one critical of Judge O’Malley.

http://patentlyo.com/


13 posted on 05/12/2014 2:52:22 PM PDT by Smedley (It's a sad day for American capitalism when a man can't fly a midget on a kite over Central Park)
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To: Mr. Jeeves
If we expect to stay employed

I'm just a cook, man...

/johnny

14 posted on 05/12/2014 2:54:28 PM PDT by JRandomFreeper (Gone Galt)
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To: ShadowAce

...”So, there are still a few more years (and many more millions) to be thrown at this before there’s any real conclusion.”

Sometimes I think that’s why we get so many of these screwy rulings. Just lawyers(judges) making work for more lawyers. Gotta keep the BAR cash flow going dontchaknow.

I gotta give the first judge credit though. He actually took the time to learn to program so he could understand the issue before making a ruling.


15 posted on 05/12/2014 3:01:40 PM PDT by AFreeBird
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To: expat2

To put it simply, an API is a set of instructions a software company will put out for a piece of software, that delineates how a 3rd-party programmer can write applications that then interface with the original piece of software.


16 posted on 05/12/2014 5:14:29 PM PDT by Svartalfiar
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To: Smedley

hmmm...copyright of an *implementation* of an API is ok, but the API is just the declared interface to the software component. This has been ruled upon in the past, otherwise software like WINE (on Linux) would be in trouble. It *implements* the Windows API so Windows software can run on Linux but has no Windows code. Microsoft makes the API’s public information so people can right application software for it. Anybody can re-implement the API...and I’m a Software Architect that works with open source software and frequently have to deal with legal issues (GPLv2/3, Apache, etc.).


17 posted on 05/12/2014 5:35:56 PM PDT by fuzzylogic (welfare state = sharing consequences of poor moral choices among everybody)
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To: Usagi_yo
I just think there is a lot of software that’s copyrighted or part of an IP package that doesn’t do anything unique or non-intuitive.

Yes indeed.

18 posted on 05/12/2014 6:23:39 PM PDT by Straight Vermonter (Posting from deep behind the Maple Curtain)
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To: fuzzylogic

“hmmm...copyright of an *implementation* of an API is ok, but the API is just the declared interface to the software component.”

That sums it up.


19 posted on 05/12/2014 6:41:42 PM PDT by Smedley (It's a sad day for American capitalism when a man can't fly a midget on a kite over Central Park)
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To: Svartalfiar

Thank you for your clear exposition. It’s apparently a fairly high-level interface specification for designers of associated apps to use.


20 posted on 05/12/2014 8:32:10 PM PDT by expat2
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To: expat2

No problem. I wouldn’t exactly say it’s high-level, but does require programming knowledge. You have to be able to write your program/add-on to be able to use any APIs. If you’ve ever been to Kongregate (game website) they have some APIs so people who make basic flash/mobile/facebook type games can submit scores to the website for high score lists, login through the website, stuff like that. And many of those games are very basic.


21 posted on 05/13/2014 7:35:25 AM PDT by Svartalfiar
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