36 Comments

Summary:

A court surprised many in the tech and legal community by deciding a basic tool of software architecture can be owned by Oracle.

In an unusual decision, an appeals court in Washington ruled on Friday that Oracle can copyright application programming interfaces (APIs) for the Java programming language. The ruling is a defeat for Google, which uses the APIs for its Android software, but also has implications for the technology industry as a whole, where APIs — which let computer programs speak to each other — are considered to be a basic building tool and outside the scope of copyright.

In a unanimous three-judge ruling, the U.S. Court of Appeals for the Federal Circuit held that a district judge in California erred in 2012 by declaring that the APIs were simply a function or an idea, and not an expression subject to copyright protection.

The appeals court found instead that, despite the fact Google had written its own code to implement the software, it had infringed copyright by using Oracle’s “declaring code” — which represents headers and other basic directional signals — to arrange it.

The ruling is significant because it goes against traditional understandings of the “idea/expression dichotomy” under copyright law, which holds that a form or concept can’t be protected, but that a specific expression of it can be; for instance, the structure of a sonnet is not copyrightable but a specific poem is. In the case of the Java APIs, the appeals court has given Oracle a monopoly over what appears to be a functional concept.

In a remarkable passage, Judge Kathleen O’Malley compares the short names such as “java.lang.ref” and “java.lang.reflect,” which Oracle uses to name the APIs, to great works of literature:

By analogy, the opening of Charles Dickens’ A Tale of Two Cities is nothing but a string of short phrases. Yet no one could contend that this portion of Dickens’ work is unworthy of copyright protection because it can be broken into those shorter constituent components.

After concluding the APIs were copyrightable, the appeals court referred the case back to a jury to determine if Google qualifies for a “fair use” exemption.

O’Malley’s decision was met with incredulity by technology experts and intellectual property scholars, many of whom had applauded the earlier ruling of the California judge, who had taught himself Java before ruling on the Oracle-Google trial. Here are some reactions to the new decision on Twitter:

Google has yet to say if it will appeal the decision, and only provided a short statement by email:

“We’re disappointed by this ruling, which sets a damaging precedent for computer science and software development, and are considering our options.”

As the comments on Twitter suggest, the controversy may focus renewed attention on the role of the Federal Circuit, which is responsible for all patent appeals in the country but, in this case, issued a rare copyright ruling. The court has been criticized as “rogue” and has been repeatedly overturned 9-0 by the Supreme Court.

Even if Google successfully challenges the Federal Circuit’s ruling, the process could take years, and result in widespread legal uncertainty and litigation costs.

You’re subscribed! If you like, you can update your settings

  1. Rick Bartel Friday, May 9, 2014

    Time for the president to step up on this one and do something productive with an executive order that will stop this stupidity.

    1. Ellison Oracle lobby is allegedly blocking reform of the “worst law in tech” which criminalizes Terms of Service and was used against Aaron Swartz:

      http://www.newyorker.com/online/blogs/newsdesk/2013/03/fixing-the-worst-law-in-technology-aaron-swartz-and-the-computer-fraud-and-abuse-act.html

      http://o.canada.com/technology/swartz-doc-director-oracle-and-larry-ellison-killed-aarons-law

      “Did tech giant Oracle, and its founder and CEO Larry Ellison, pay to stall an important piece of legislation named in honour of late internet pioneer Aaron Swartz?

      That’s what Swartz documentarian Brian Knappenberger discovered while following up on the fate of Aaron’s Law, an amendment to the Computer Fraud and Abuse Act (CFAA) which aimed to eliminate extreme application of the antiquated bill.

      “I was told it stalled in committee and the reason why, we found out a few weeks ago, is because Oracle uses it to go after their competitors,” Knappenberger tells Canada.com. In other words, he adds, “It’s useful to them for [the law] to be vague.”

    2. Oh yes, he is an expert on stupidity…

    3. I assume you’re being sarcastic. For a President to use an Executive Order to overrule the Judiciary would be completely unconstitutional.
      The purpose of Executive Orders is not to create law, that is the job of the Legislature, nor is it to interpret laws, the job of the Judiciary. The only purpose of an EO is for the President to implement law.

  2. The singularity is here, at least as far as technology exceeding the ability of a lot of people to understand it. This has been happening with the patent office for some time, now we have clueless judges essentially creating laws. At the very worst, they should kick it out and insist that congress create a law that defines if an API can be copyrighted.

    This will just increase the abilities of companies to extract rents while slowing down innovation (at least in the U.S.).

  3. Michał Michałowski Friday, May 9, 2014

    The ruling is not about some abstract API, but about Java packages API.
    Oracle gives 3 different license options for the Java licensing, one of which is a “commercial” license, where you can take the literal Java API (i.e. classes and methods definition) and write your own implementation. Google was trying to get this license, but they didn’t get to agreement with Oracle, as that implementation would not conform to the “write once, run anywhere” principle of Java – in turn, Google had no right (according to Oracle licensing) to use the Java API and rewrite the implementation, but still they did it – they have their own Java virtual machine implementation (“Dalvik”), and this is ok, and they created packages (libraries) implementing the Java API that worked on Dalvik. This is plain copyright infringement, and I don’t see how this could affect APIs as general as the article suggests.

    1. Thanks for the thoughtful comment, Michal. But isn’t the question whether or not the use of the headers (and other elements of the declaring code portion of the API) count as creative expression? Or whether it is instead just a function?

      One analogy that comes to my mind is writing a play.. I can decide that it should have 5 Acts, and each scene should have three scenes and that there should be a 15 minute intermission.. I can also use terms like “stage left” and “stage right” .. None of this would qualify for copyright protection — but the rest of my play would. Does this seem like a fair comparison to what Oracle is trying to do?

      (Also, Oracle doesn’t have an IP right over something simply because it says it does, and others have taken license.)

      1. The API is more than a set of words or actions, in its entirety it is the structure of the software (its design). The rest is just the implementation taking the design from a abstract form to its concrete implementation.

        1. Designs are not copyrightable, although they may be patentable if other criteria are satisfied. I believe that this case pertains to copyright law.

      2. I generally don’t like analogies, but if you want to go with a play consider this: Google didn’t just copy stage left and stage right. The also produced a play with the exact same scene names. The scene implementations express the same idea, but were written differently. Further, if you replaced one of Google’s scenes with one of Oracle’s scenes of the same name the entire play would still work.

        Clearly, Google went too far. Everybody knows they did. The only question has been if it was legal. For a company that is supposed to do no evil, this sure doesn’t look like it. They should have taken a Java license like everyone else. Instead, they very carefully threaded the legal needle to use Java in an incompatible way to produce an iPhone knockoff. Android may no longer be a knockoff, but it doesn’t change the history that got them here.

        1. Many thanks for the explanation Matt. Not sure if the article was written void of the pertinent facts on purpose or if the author just doesn’t know much about coding, but your comment (assuming everything you say is indeed true) clearly indicates fault on Google’s end.

        2. An API is like a high level instruction set. Which isn’t protected by copyright.

        3. Wait, so if I made a play with the same scenes as another, but gave it a different title, completely changed the characters and words, performed it for free and gave you a copy of the script, you think I should be sued for copyright infringement?

          When there are open source projects doing largely the same?

          http://harmony.apache.org/
          http://gcc.gnu.org/java/
          https://github.com/kaffe/kaffe
          http://www.eclipse.org/jdt/core/
          http://www.gnu.org/software/classpath/

          Oracle bought it’s way into this and people are cheerleading Ellison’s rent-seeking.

          1. Try to write a play about a small lion cub named Kimba in Africa raised by a wise father named King Sofauthar. Sofauthar is helped by an highly proper tucan and is killed in a coup by his deranged brother Scab.

            See how far you get.

            1. Not quite. Names that are part of the API didn’t change at all, name that aren’t part of the API do not matter in the slightest. The implementation could be flying monkeys, doesn’t matter and isn’t even the question at hand.

      3. The API goes deeper. It would say you have 5 main characters named John, Billy, Susan, Mike and Sally. In Act 1. Billy and Susan get married against Sally’s (Susan’s secrete lover) objection. The final scene of Act 1 finishes in a church.

        In Act 2…. And so on.

        The API is not an abstract concept but a very detailed and specific description. The acting and some of the specific words are just the implementation. Google copied the entire plot and characters of play and just changed acting.

        1. It’s a poor analogy: as a percentage of content, the class and method definitions of an API are pretty small. And by their very nature, APIs are written as abstraction points, a place where another implementor could provide their own implementation. It’s really nothing like a play or movie.

          As a developer, this makes no sense to me. I don’t write code to seek rent from people, I write it to solve problems, and provide those solutions as products. If someone can do roughly the same thing as me, so be it. You also may not be considering what this implies. How is an API different than a document format (Office -> OpenOffice), network protocol (SMB -> Samba) or a filesystem (NTFS -> NTFS-3G). Are you saying capable developers can’t interact with these things because of copyright? It doesn’t make any sense. If I can make a replacement part for a car by inspecting an existing one, I should be able to make a replacement part for a computing system.

          Why do you want the government enforcing monopoly power over an abstract collection of phrases on behalf of private businesses? What does society gain from it?

          1. Better an analogy with a puppet show:
            The puppets are the API.
            How the puppets move (by strings, by hand, people dressed in black, robots, etc) is the implementation. For the viewer is the same result, more or less.
            So if I copywright the puppets, everyone who use a puppet in a show should be sued for copyright infringement.

  4. topicsidea Friday, May 9, 2014

    Reblogged this on Appeable You and commented:
    Great news about what API Application Programming Interface differentiate between copyrights and patent

  5. Steve Ardire Friday, May 9, 2014

    RT ‏@dangillmor Will (mostly) technically illiterate Supreme Court fix (totally) technically illiterate appeals court’s screwup http://www.vox.com/2014/5/9/5699960/this-court-decision-is-a-disaster-for-the-software-industry

    RT ‏@sardire @dangillmor hope so b/c ruling that APIs can be copyrighted puts dev back to software stone ages good for Oracle bad for everyone else

  6. What a poorly written article. You mention O’Malley twice, yet never mention a first name or a position. From context, it’s clearly the judge that wrote the opinion, but no thanks to the author.

    1. The first reference is fixed. If that’s your only complaint about the article, I’d say on the balance it was pretty well written.

  7. Consider the the impact of this on the Posix API which is in almost every OS. Posix is from Unix and the copyright to Unix is currently held by Novell? Given this mana falling from heaven will Novell start asking for $10 a copy over every copy of Windows, OSX, etc ever shipped?

    Rewriting these rules will cause chaos in the computer industry. Copyright is automatic (you don’t have to file for it) and it lasts 150 years. Retroactively changing the rules on API copyright is going to blow up in thousands of places.

    1. There is no impact as posix is a ISO spec.

      The outcome is fine. If you wish to publish an open API you put it under an open source license. If you don’t, then don’t.

      1. POSIX didn’t become an ISO spec until well after derivatives of the original ATT Unix had appeared and basically forced ATT’s hand to officially make their API an open specification. Prior to that, were all the BSDs and other Unix-like systems illegal?

      2. > If you wish to publish an open API you put it under an open source license. If you don’t, then don’t.

        Oh sure, how about this one?

        http://openjdk.java.net/

  8. And herein lies the problem for those who, in their quest to make software unpatentable, suggest that in order to protect software, it should be subject to copyright protection rather than patent protection.

    Here is a simple example that shows the ridiculousness of that suggestion:
    I hereby COPYRIGHT the creative expression of the following JSON API response:

    {“access_token”: [string value for returned access_token], “expires_in”: [integer in seconds]}

    Now, in order to avoid copyright infringement, you cannot use a creative expression and call it your own if your expression contains more than 10% of this expression. And, given most all APIs have similar headings, structure, and syntax, this would be an impossible feat, especially if such an API expression becomes an industry standard, as many APIs do.

    See the problem? Software/code is not just expressive language, but functional language, wherein bits of information are manipulated or processed, operating together as a utility. Hence, in order to protect the utility of the software, copyright protection would not only drastically complicate both the pursuit of copyrightable material, but it would open the floodgates on assertion of such software protection.

    Additionally, all code, proprietary/private or not, business confidential or not, trade secrets or not, would become vulnerable to being audited during any of the new “floodgates” discovery trials that would swamp the courts, hence defeating the purpose and voiding the intention of proprietary/private, confidential, or trade secret.

    That’s the problem when confusing one type of IP protection (copyright) that does not function like another (patent).

    Now, regarding the Federal Circuit ruling, if this Federal Circuit appeals court believes that headers, structure, syntax etc. (aka functionality rules) of an API are indeed creative expression, and because the rules of the English language are also comprised of functionality rules, then the mere creation of a sentence in the form of [subject] + [verb] + [object] (or any new variant) would be subject to copyright.

    I guess this means that George Lucas has copyright to “Yoda speak”?
    On to something interesting you are. Hmm?

  9. Thanks to Jeff John Roberts for posting this article.

  10. brianmccallion Saturday, May 10, 2014

    The opinion handed down notes that Google repeatedly argued patent law is the law that should govern software. Clearly that hasn’t worked out well and really that’s why a lot of folks are amped up about this ruling as they seem to expect more bad news at every turn. My assessment is this court seeks to set a precedent for copyright, rather than patent to be the common way of addressing software IP questions. And then there’s the interoperability issue that the decision notes should not have been applied to the question of whether or not the Java apis are copyright able. Nobody is happy with patent trolls. And yet in this case it’s Scott McNeal, founder of Sun defending Java and its intellectual property. The decision / opinion goes through each of the points of contention quite thoroughly and as a reader one learns that much of what the technology community thinks it knows about intellectual property is considerably more nuanced than the broader simplification or rules of thumb often tossed around. And while business plans and expectations around APIs may need to change to reflect the underlying law, the law is the law. It seems that to an extent copyright law is overall more “inclusive” of original works my many different creators in a community than is patent law, which restricts use solely to those who license a given patent even if to an extent that firm or inventor developed something independently. In other words, it seems that in cases other than where there’s been blatent piracy of theft of the work of others, copyright is the more inclusive and lends itself to an ecosystem better than does patent law. I may be an overly optimistic, however after I read the entire opinion this morning I felt the judges really thought deeply about the current IP landscape as well as took great pains to really understand software, apis, and how ip law is applied. While those who believed it is their right to copy or steal apis of others may be disappointed, those who genuinely seek to innovate and build may be pleasantly surprised by the work of these judges.

Comments have been disabled for this post