How open is your API, and did the Supreme Court just open it wider?

Does copyright protection prohibit anyone from legally copying APIs under US law?

For more than a decade, that question has put the software industry in doubt, if animation has not been suspended. As the Supreme Court ruled Monday morning in a 6–2 decision, a piece of software code that enables addressing the functions of the underlying code and may be usable by others, itself needs a new software package. Can be copied to. This derivative work will be able to make those works addressed and usable by others using similar symbols – as long as it is for a different purpose.

Put another way: The method you use to make a difference to your software is No Some you can claim as your exclusive property.

Immediately, you can expect software producers to treat the API of any application or service as unsafe by copyright – the valid subject of a fair use claim. He will be delighted with the Vijay Utsav of the Electronic Frontier Foundation. As EFF Special Counsel Michael Barclay wrote on Monday afternoon, “This decision is the general behavior of software developers, re-enforced, re-used software interfaces written by others, a custom that outlines most Internet and personal computing technologies used every day . “

It is not as if Barclay is in a position to speak for the High Court. However, he appeared to be exposed to any lengthy legal interpretation of the ruling, mainly to say that the barricades had been busted, and that everyone’s interface is now fair game.

There is still considerable skepticism in legal circles – at least while the smoke comes out of the barricade – as the High Court has actually decided. Specifically, is a duplicated interface for a function being applied to that interface’s use of a different platform fair?

fair play

The intellectual property lawyer said, “The Supreme Court did not answer this question yesterday.” Joel B. Rothman, co-partner of Schneider Rothman IP Law Group (Shreepaul), A firm that deals specifically with intellectual property matters.

“Instead, as I initially predicted,” Rothman continued in a note to ZNet, “the court ruled on the basis of fair use, which is a fact-dependent equitable defense where the copying firm must make it There will be a need to prove that in a different way or in different scenarios, it uses copied APIs that qualify as a fair use under the same factors mentioned in the decision. In other words, yes, the duplicate has to Can be considered a fair use, but it also cannot be considered a fair use – it just depends on all the facts. “

“What will be important is, in a note to ZDNet, intellectual property attorney J. Michael Keys of the law firm Dorsey & Whitney LLP,” writing how transformative the second work is. “

The key to this case was the “change” in 2005. It was then that Google acquired the mobile Linux platform Android from its creators, Android Inc., along with its developers, most notably Andy Rubin. At the time, the Java programming language was shepherded by Sun Microsystems, but in a very loose way. While Google negotiated with Sun to license mobile Java – a conversation that fell apart – on its own, Google engineers were developing a virtual machine for Android that could run Java code.

Dalvic says, that VM will become the major bytecode manufacturer for the Android operating system, until its replacement in November 2014 with a much faster interpreter called ART, “Lollipop.” For Android v5.0. Dalvik did not produce Java bytecode, but through its own bytecode, Java source code – and this is “change”, to which Monday’s decision refers: the same mechanism, different outputs.

“The Sun system was written for desktops and laptops,” Keys continued. “The use of Google was transformational as it was developed for smartphones, an absolute exclusive use.”

Writing for the majority, Justice Stephen Breyer indirectly cited all artists, with Andy Warhol as a case-in-point about how copyrighted things can be legally converted, something else In, which can be judged for their cultural, as well as commercial. , Advantage. Justice Breyer wrote:

In the context of fair use, we have considered whether the use of copier “adds something new, with a more objective or different character,” by replacing the “copyrighted work” with an expression, meaning, or message. “In answering this question, we have used the term” transformative “to describe a mimetic use that adds something new and important. For example, an” artistic painting “falls within the scope of fair use, Even if it properly repeats a copyrighted “advertising logo” to make a comment about consumerism. Or… A parody can be transformative because it comments on the original or criticizes it, “parody its The original needs to be copied to make the point. “

An interpretation of the concept of “transformative” appears to violate Justice Clarence Thomas, who wrote in his dissenting opinion, “This new definition clarifies copyright.” If every derivative of a program was protected by fair use, Justice Thomas went on, each pirated copy of Microsoft Word would be a legitimate commercial product. “Ultimately,” he continued, “the majority wrongly accepts transformative use with derivative use.”

The rotation

That “early” prediction about which Rothman said was in 2014 that the Federal Circuit Court of Appeals ruled in favor of Oracle, after which Google announced duplication of Java code violations, and Oracle received an unspecified award. Entitled to (Oracle had demanded $ 8.8 billion). Participating in a legal affairs discussion panel at the time, Rothman said he agreed with the final decision of the Court of Appeal.

“If there is work that deserves copyright protection – minimal creative, yes, but creative work because, in many ways, the code is poetry,” said Rothman in 2014, “then it should be entitled to copyright protection. Without infringement Whether or not it can be used, for example, as Google has done, should be judged based on whether it has been used objectively – is it a fair use“

Curiously, this is part of the decision that the appeals court decided to refer back to the lower court in 2014. Previously, after finding in favor of Oracle over most of its copyright infringement claims, a district court jury was deadlocked on deciding Google’s legitimacy defense that its copying constituted fair use. This is the part which the Supreme Court on Monday resolved in favor of Google. At that time Judge Kathleen O’Malley wrote:

We keep in mind that the application of copyright law in the context of computers is often a difficult task. . . On this record, however, we find that the district court failed to distinguish between what is copyrightable – which renders one less frequently – and the question violating the scope of the conduct activity. The Court also erred in its copyright analysis by importing the principles of fair use, including interoperability concerns.

Even if fair use was in question here, the Court of Appeal decided, Google had applied its fair use argument incorrectly. The High Court rejected that claim. While accepting the Java API is entitled to copyright in its entirety, it suggests that the “implementation code” – like a switchboard, the logic used to associate API calls with similar functions – is essentially The same would happen on any other platform where similar calls would be performed to connect to tasks with the same purpose.

If one aims to keep the language comfortable (as Java has always been) then you have to use the same interfaces in any API that it uses to enable programming with the same language. Thus, whichever platform you end up using for the road, you will inevitably have to use the same instructions. So it doesn’t really matter that Google’s developers have mimicked the Sun’s symbol tables; If they used different symbols, they meant the same way.

Wrote to Mr.Plav Rothman on Tuesday in ZDNet:

I think the reasonable conclusion is that if you create a programming language and API code designed to work with that language, and you encourage programmers to use their language, and programmers use the language Do, and the programmer’s base grows and swells, and then another company comes in and wants to tap on that existing programmer base that is already familiar with the language and API calls made in the language, but the other company Wants to develop software to run on some type of hardware that has not already worked properly by you, and that the other company copies a portion of the code from the API so that the existing programmer will be able to use all of the conditions for the call. You can call the API function without learning the new set, then you can be the original programming language and the author of the API. Same situation as Sun / Oracle.

Insert interface here

The software industry has always been an intellectual property exchange. Living around software means determining where its core value lies, and building a viable, sustainable business model around it. Patents and copyrights have always been about establishing a system of value around intellectual property Specialty. Both copyrights and patents openly grant the monopoly rights to creators – and then, of course, impose such limits on the value of such monopolies as to enable the rights to be traded themselves.

Mathematics, it has been ruled time and time again, has no copyright or patent right. It is thought to have already existed, discovered by mathematicians who first put it to use by humans, but to whom it is not said that they gave birth to it. Algorithms are essentially mathematics in action. You cannot specifically claim an algorithm as yours.

Yet there is a way to change one’s general knowledge in context. Genes, for example, are patentable. Certainly they already exist, but it has been said that no industry could be built around genetics, and many of the professions which were related to genetics, the people of law, openly presented themselves for the purposes of good commerce. Did not decide to blind as precedent.

Thus far no judge, jury, or justice has disputed that Congress has expressly declared software for the benefit of copyright. The reason for this was that software is something that language can express, a personal expression. Today, very little software is the product of individual individuals. In light of this, judges and judges have, over the past few decades, discontinued parts of the software they deemed to be an exception to the Congress announcement. The monastery was one. Then the algorithm. Next, the underlying methods behind the tasks. idea The back of the software, it was determined, was not subject to copyright. The configuration should not be assigned a unique value. Now, finally, we reach for implementation, and the glacier melts even further.

In the context of a different medium, no one is entitled to mimic the method by which an encoded digital stream is provided, with the intention of rendering that stream to another platform. Otherwise, MPEG4-encoded movies were released on all smartphones, such as by servers working on top-level domains. .To, Many years ago. Also, Chase, which separated the smartphone from a personal computer in 2005, is not so wide today. Look at the PC workloads people do on their smartphones, and ask themselves what exactly is “transformed” here: its medium or our perception?

One can only build a viable business around a concept whose value derives from its originality. If the software cannot be original – or rather, if any piece of software that cannot be competitively exploited is considered original, and therefore valuable – then it will not be the center of an industry . Those who build businesses will look elsewhere.

Justice Thomas states that the same train of reasoning that led to the creation of copyrightable interfaces for different platforms allows copying of entire applications on different media and publishing results. That may be wrong, but here’s the real problem: After Monday’s decision, someone, somewhere, is going to make that original idea a hell of a try.