We still don't know what will happen with Oracle's accusations that Google violated its patents. Given that Oracle itself doesn't value the two remaining patents as being worth much, that decision won't matter much. No, the real question is what will U.S. District Court Judge William Alsup will do with notion that Java's application programming interfaces (API)s, and hence all APIs, could be copyrighted. That's the real $64-million (billion?) question
Alsup instructed the jury to treat APIs as if they could be copyrighted, and they agreed with him on that. What they couldn't do is decide though whether Google had violated fair use in what it did with Java's APIs in creating Android.
As Pamela Jones, intellectual property law reporter, paralegal, and founder of Groklaw explained to me, “The jury didn't decide API are copyrightable. They can't. That's a question of law, and the judge is the one that has to decide that issue.”
Jones stated that Alsup “decided that he'd let the jury decide the fair use issue first, and then if they found fair use, he wouldn't have to reach that decision. But if they found infringement and no fair use, then he would decide if APIs are copyrightable and more specifically if their arrangement is protectible.”
Is it? Oracle would have it that APIs are like music. Yes, APIs are just made up of descriptions of inputs and outputs, but then music is just made up of notes.
To this argument, Thomas Carey, a partner at Sunstein, a major intellectual property (IP) law firm and chair of its Business Department said, “Oracle's lawyers compared the creation of APIs to writing a piece of music, to which I say 'Balderdash.'”
The First Circuit opinion in Lotus v. Borland found the command structure of Lotus 1-2-3 to be unprotectible under copyright because it was functional, not expressive. According to that opinion, the IP protection for functionality is to be found, if at all, under the patent laws, not under copyright.
“Is there anything more functional and less expressive than an API?” continued Carey. I don't think so, and I suspect that you don't either. Thus, the infringement of APIs should not be possible unless they are patented. The First Circuit [which ruled in Borland's favor in this important case over a program's menu interface] got the principle right (even if I disagree with them about the command structure of 1-2-3).”
So why did the jury find “Balderdash?” Jones thinks it because the final jury instructions led the jury to find "infringement because they thought they were supposed to.” In the end, the jury came up with a conclusion that leaves the question of whether APIs can be copyrighted in the judge's hands.
What happens next? Matthew Levy, a partner with the small IP firm, Cloudigy Law, said: Judge Alsup has not made any decision yet as to whether APIs are copyrightable. And it's very likely that whatever decision he makes will be appealed to the 9th Circuit, so we won't know the answer for some time.”
Levy continued, “Even if Judge Alsup holds that Java's APIs are copyrightable, that doesn't necessarily mean that all APIs are copyrightable. Other languages use header files for APIs; a header file contains little more than method/function signatures, type definitions, exposed variable names, and constants. Those are completely dictated by the function of the code. Arguably, the way those things are arranged in a header file requires some creativity, but I think that's stretching the law too far.”
If the judge finds that APIs can be copyrighted, “I see a couple of big problems with allowing all APIs to be copyrightable. First, developers will have to be very careful in choosing a programming language. The reality is that things won't change a lot (although Java will take a hit), because most programming languages already come with fairly broad licenses. Still, I expect that developers will start to read those licenses a lot more carefully. But the bigger problem is for consumers. If all APIs are copyrightable, we can end up with a situation where a company builds a specialized API to control a device or other platform and then locks down the market for after-market components using copyright of the API combined with the Digital Millennium Copyright Act,” Levy concluded.
The Electronic Frontier Foundation (EFF) has a far darker view of what the world would be like if APIs could be copyrighted. “Treating APIs as copyrightable would have a profound negative impact on interoperability, and, therefore, innovation. APIs are ubiquitous and fundamental to all kinds of program development. It is safe to say that all software developers use APIs to make their software work with other software. For example, the developers of an application like Firefox use APIs to make their application work with various OSes by asking the OS to do things like make network connections, open files, and display windows on the screen. Allowing a party to assert control over APIs means that a party can determine who can make compatible and interoperable software, an idea that is anathema to those who create the software we rely on everyday. Put clearly, the developer of a platform should not be able to control add-on software development for that platform.”
The EFF then gives two concrete examples: “Take, for example, a free and open source project like Samba, which runs the shared folders and network drives in millions of organizations. If Samba could be held to have infringed the Microsoft’s copyright in its SMB protocol and API, with which it inter-operates, it could find itself on the hook for astronomical damages or facing an injunction requiring that it stop providing its API and related services, leaving users to fend for themselves.”
“Another example is the AOL instant messaging program, which used a proprietary API. AOL tried to prevent people from making alternative IM programs that could speak to AOL's users. Despite that, others successfully built their own implementations of the API from the client's side. If copyright had given AOL a weapon to prevent interoperability by its competitors, the outcome for the public would have been unfortunate.”
Let's hope, oh how we should hope, it doesn't come to that.