Sunday, December 08, 2013

The case for copyrighted APIs

So Oracle is trying to sue Google over the idea that application program interfaces (known as APIs) are protected by copyright.  Now I won't go into a ton of detail but APIs expose to a programmer the pieces of software that can and cannot be used.  So if I needed to round a number, I might call a piece of code called, Math.round(56.73)

Now how exactly that piece of code actually rounds up, there is no doubt, the implementation is copyrighted.  But Oracle's argument is that the whole term, Math.round() is copyrighted, no matter how one implements it.

This would be akin to someone copyrighting the steering wheel.  Now a particular design of steering wheel understood, but the whole notion of a wheel that is used to control a car is just crazy.  The wheel is the expression (the API) of how the driver (programmer) interacts with whatever the steering mechanism is (the implementation).

I'm of the opinion that APIs fall outside copyright.  The reason being I cite Lotus Dev. Corp. v. Borland Int'l, Inc. 516 U.S. 233 (1996).  Here the Supreme Court ruled in favor of Borland that, "the set of available operations and the mechanics of how they are activated are not copyrightable."  This allowed Borland to use menus in their product called Quattro Pro that looked exactly like the menus in Lotus 1-2-3.  Just because the menus looked the same (there was a file, new worksheet, new formula, etc... menu) the underlying code behind those menu items were different enough to not constitute infringement of copyright.  How one goes about activating an operation is not the same as how that operation actually works.

Thus, the way I activate rounding, via the Math.round() is not the same as how that rounding occurs.  Thus, since Math.round() is the manner in which I actually activate that rounding, it should logically fall outside of copyright.

In an appeal to the DC circuit court Oracle is set to have a retrial on this very notion, is an API copyrightable?  "It seems to me that almost all computer code has to have a functional purpose, otherwise what's the purpose," --Judge Plager

While what Judge Plager says is true, all code at some point has a function, if the function is to express an underlying intent or implementation.  I believe that 17 USC 102(b) implies that if the function is simply expression of an idea, which an API would most certainly be that, it falls outside of the protection offered in 102(a).  Even if § 101 states clearly that API's fall into the definition of "computer program", 102(b) clarifies that definition to restrain application of copyright to broad ideas like, how do I call a number rounding piece of code?  If copyright existed on the notion of round(), then how would other's code their own implementation without eventually stepping on such broad claims?

There is no doubt, this case is bound for the Supreme Court, and the ramifications of copyrighted APIs would have broad implications on developers.  It would bring about a downward trend in interoperability.  Network protocols, web services, and more which rely on open APIs would suddenly become licensable technology.  Even worst, this could spill over into widely used standards for communication, imagine if the ability for one hospital to talk to another hospital was a commercial protocol via a copyrighted API.  Only if every hospital choose a single vendor would there be the ability to for hospitals to talk to each other.  Those who choose a different product would be in a different closed box from the others.  And trying to have proxy services that translate between the two of them would require a vendor to license from both vendors in question to make such a proxy, that would make such proxies insanely costly.

Open APIs are incredibly vital to developers, already developers face too many difficulties with "patented" software processes.  If APIs are ruled into the domain of copyright, developers will have increased pressure on design and ultimately will mean that some developers may never get out the door with the years it may take to do due-diligence to ensure copyright and patents aren't being broken.  API libraries may cease being freely usable, useful API libraries, it could take years before open APIs are completely untangled and ensured are infringement free, meaning that small software shops will suddenly have to invest thousands of dollars in commercial libraries or wait until whatever they were using gets untangled.  Either option could cost them more in the long run than they originally had to begin with.

It is clear that Oracle is doing this to take what they deem their piece of a multi-billion dollar industry within Android.  I can get they feel a bit jaded about the whole thing.  However, their argument would have much wider repercussions than on Android.  This would bring to an end anybody who mimics Amazon Web Services APIs for interoperability.  There is a lot of vendors that stand to lose out big time on this.  Additionally, current cloud services, like Azure, Amazon, Oracle, and yes even Google's could copyright their APIs and lock their customers programs forever, or until overturned, onto their platform.  Either a customer rewrites their entire application or pays out the ying-yang to build a proxy while they move from one to another platform.  Writing a program that can translate one API to another would be copyright infringement.

What can be done about it?  Not much at the current point in time, but it does highlight a warning sign that commercial vendors of software are ever looking for new ways to take traditional developer values and twist them into meanings that make them top dollar.  It is becoming clearing with each passing year that truly from the start open APIs will be the only sure fire way of avoiding having the rug pulled out from underneath you.

Ultimately HTML5 and the open web/format will be the only "safe" bet in town.  That is why organizations like Mozilla, Apache, The Document Foundation, the Qt Project, the Fedora Project and others are so vital to developers.  They stand for platforms, libraries, protocols, and formats that are free from surprises, free for implementation from the start, free to be used for the masses to communicate freely with the world.  Because they believe that developers and users have a right to exchange ideas with one another without fear that one day, they might get a knock at the door asking for money.

Copyrighted APIs will have yet another chilling effect, but only because we have thus far had good faith in those who created these APIs, that they wouldn't do something as stupid as Oracle has suddenly decided to do.  Maybe developers were naive, but it takes someone with a really cold heart to actually act on that.   I do hope that Oracle finds whatever their reward to be, should this all end in their favor, worth the irreparable damage that this has on the faith of developers.  As future developers will be extra cautious to not fall into some inescapable pit and freely distributed SDKs will be met with ever increased skepticism of how "free" that platform truly is.

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