API copyrights are dead

I’ve now read Judge Alsup’s ruling in the Oracle vs. Google lawsuit addressing the copyrightability of the Java APIs as a matter of law. This is a bigger win for the good guys than appears at first glance; Alsup has subtly but definitely driven a stake through the heart of API copyrights. The interesting part is how he did it.

Some early commentary has been claiming that Alsup wrote a narrow opinion specific to the fact pattern of this particular case. And indeed that is how it may appear on first reading, especially since Alsup made no general assertion in the ruling that APIs (other than the specific ones at issue in this trial) cannot be copyrighted.

Actually, the opinion reads exactly as though Alsup wanted to make that more general assertion, but specifically avoided it in order to bulletproof his finding against appeal – overreaching, in a case like this, is one of the more common causes of a remand.

Instead, Alsup did something subtle and clever. Under the guise of writing an exhaustive dissection of Oracle’s claims, he actually wrote a sort of roadmap or how-to manual explaining how to demolish claims of API copyrightability in general. If and when such a claim is again litigated in a U.S. jurisdiction, you can bet a vital organ that this ruling will be cited – and even though it’s not claiming to decide anything but the instant case, it is near certain that the judge will treat it as precedential for that future case in exactly the same way that (for example) Computer Associates vs. Altai has been repeatedly cited.

In fact, what Alsup has done here is extend the line of case law deriving from Altai in a way that applies the abstraction-filtration-comparison test specifically to APIs. I am extremely familiar with this line of case law – I’ve been a consulting expert in a case where it was central – and as I read his opinion I found myself repeatedly nodding and grinning as doctrines like scenes a faire and merger made appearances exactly where I expected them to and Alsup applied them exactly as I expected he would. To oversimplify only a little, where Alsup effectively comes out is “You can’t copyright APIs. Idea and expression merge here.”

But there are no actual surprises here. Which is a good thing; surprises might have meant weaknesses in the application of precedent that a sufficiently clever lawyer could exploit. I don’t detect any such weaknesses. Instead, I see a very tight, clear argument that is going to be at least a serious and probably a fatal obstacle to anyone pushing an API copyrightability theory in the future.

As it turns out, we got the right judge for this case in at least two major ways. My read is that having done some programming himself, Alsup understood the stakes and the issues, and did what he could to kill off API copyrightability for good. And he framed his ruling in exactly the way that would maximize the ruling’s downstream impact while minimizing the chances of reversal.

This was an excellent outcome – probably the best the open-source community could hope for, and better than a more aggressively phrased, less subtle ruling would have been. We have reason to celebrate.

UPDATE: Worth a mention that Boies Schiller, the firm that got its ass handed to it in this lawsuit, were also the losers in the SCO lawsuit. If there is a next time around for this kind of litigation, let’s hope the plaintiff is stupid enough to hire them.

43 thoughts on “API copyrights are dead

  1. But Florian “Google Is Doomed” Mueller says that the “the real thing is about to begin”, and he’s an expert, right? He says so, and he says that Oracle’s money doesn’t influence his objective analysis…:)

    I’ve been reading every scrap of info I could find on this case for a year now. Eric, I hope you’re right and this begins a turn back toward sanity in the IP world. But I fear that the euphoria will be short-lived.

  2. And where Alsup’s ruling might be found lacking, there is the EU court copyright decision about programming languages. Their legal reasoning should also resonate in the US. Especially, as Alsup seems to fully agree.

    It feels to me as if there has been a paradigm shift in the legal world. The new feeling being that IP protection has started to overreach and is now threading beyond the boundaries of copyright and patent law and the various international treaties.

    Programming languages ‘do not enjoy copyright protection,’ EU court says
    http://news.cnet.com/8301-1001_3-57426822-92/programming-languages-do-not-enjoy-copyright-protection-eu-court-says/

    And the original ruling
    http://curia.europa.eu/juris/document/document.jsf?text=&docid=122362&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=160675

  3. PS
    My feeling about the new legal paradigm is nicely illustrated by a quote from Alsup’s ruling:

    This action was the first of the so-called “smartphone war” cases tried to a jury,

  4. Winter,

    There’s a good chance that the EU ruling was inspired by U.S. jurisprudence in CA v. Altai. The AFC test established in Altai has been cited as a guide to determine what’s copyrightable in the UK and France.

    Google brought up another case which supports them: Sony v. Connectix. What was at issue in that case was that Connectix copied the PlayStation BIOS several times in the course of writing Virtual Game Station, an emulator which let a Macintosh play PlayStation game discs. But they didn’t actually ship the copied BIOS; instead they delivered an API-compatible clean-room reimplementation of the BIOS. The court found in favor of Connectix.

    So we have at least two U.S. court cases that should have established the non-copyrightability of APIs. I would say that the lawyers at Boies Schiller should have egg on their faces, but I actually believe they are completely shameless.

  5. Worth a mention that Boies Schiller, the firm that got its ass handed to it in this lawsuit, were also the losers in the SCO lawsuit. If there is a next time around for this kind of litigation, let’s hope the plaintiff is stupid enough to hire them.

    AFAICT Boies Schiller are involved in quite a lot of high-profile cases. I don’t think it follows from the SCO and Oracle cases that they’re bad lawyers, or that hiring them was/would be stupid — unless you think that SCO and Oracle were obviously in the right, and only lost because of poor legal representation.

  6. @Jeff Read
    “There’s a good chance that the EU ruling was inspired by U.S. jurisprudence in CA v. Altai.”

    Copyright is a global business. So, it would not be a surprise when the legal types read each others thoughts on the matter.

  7. @syskill:

    There’s a criminal lawyer in my town who has the reputation of being the guy you hire when you need really good representation. I’m sure he defends a lot of innocent people, but I know for a fact that he defends a lot of guilty people.

    And that’s as it should be (even though I personally would probably hesitate to hire him because I might inadvertently be signalling my guilt).

    But for plaintiffs in civil litigation I’m not sure that I think the same rules should necessarily apply. Either you have a case or you don’t. If it’s so murky that you need to apply lots of spin and hope the jurors are dizzy enough to believe you, then you probably shouldn’t go to trial. Certainly the lawyers should know better, and there’s an argument to make that a civil attorney who works for a plaintiff with no case is acting immorally. Either the attorney is milking the client and not working very hard (which is its own small injustice), or he is indeed very hard working, and working to try to corrupt the system and produce a travesty of justice.

    BSF has shown themselves to be masters of this. They have zero morality, and lots of chutzpah. So while they may not be “bad lawyers” in the sense of being incompetent, they are certainly “bad lawyers” in the sense of being bad. Oracle and SCO obviously knew this, and since they wanted “bad lawyers” in this sense, they got exactly what they wanted. And no, it certainly wasn’t incompetent legal representation in court. You and I can’t know whether or not BSF told their clients that what they were attempting was extremely difficult precisely because it would offend most judges and outrage most potential jurors, so we can’t know whether the legal representation was incompetent at the outset. However, we can reason that even if BSF told their clients that, these particular clients wouldn’t have backed off in any case, so there was nothing to lose by full disclosure to the clients. BSF is probably smart enough to only lie when they have to, so they probably fully discussed the merits of the cases with both Oracle and SCO.

  8. I am not a high profile lawyer, but I DO practise and I know from my limited experience so far that lawyers – even experienced and respected ones -have very little say in the subject matter of the suit. It is upto the plaintiff or defendant to instruct the lawyer and the lawyer has to do their best to put their case forward in the proper legal forum if they accept the brief. And most of us have to live and we cannot pick and choose; because if we refuse to put forward a case, there is always somebody else to do so.

    Big high-profile lawyers do have a greater degree of freedom to pick and choose of course, but again, very few refuse cases unless their whole reputation can be ruined by that one case (and that’s quite a rare situation too)

    Of course, in relation to client instructions I’m talking of facts only and not the law points surrounding the facts.

    It is easy to talk of legal ethics when you’re outside the profession. All we do is put forward our client’s cases, for good or bad. As a profession we cannot be held liable for the faults of the parties, unless it is proven that the lawyer has committed an offence or has lied or deliberately misled the court or something equally bad.

    Note that I am not an American and I don’t practise law in the US. My country’s legal system is more similar to the UK system than the US.

  9. I’ll never forget seeing Boies question a stat expert in Bush v. Gore. Very slick lawyer, but he just couldn’t deal with the clear concise answers the stat guy was giving. Every time he tried to overreach with a question the math dude would slap him down by clearly stating the limits of what the statistics in question meant, etc.

    I think highly-technical testimony is something he has trouble with.

  10. IANAL, but I feel that in our system everyone is entitled to representation, whether they are guilty or insane or evil or whatever. I don’t know why BSF wouldn’t have the same ethical harbor that a criminal defense attorney has: even if my client is bad, I am performing a valuable role in an adversarial system by representing her. (Please note that while this same principle could hold for prosecutors, the vast majority of those are still scumbags because they’re supposed to represent the People, and they’re doing a terrible job of that.)

    Once BSF have established that it is ethical for them to represent reactionary anticonsumer litigious throwbacks, they might very well find that to be a large class with deep pockets. I don’t see anything wrong with serving that niche to the best of their legal ability.

  11. It is possible to make a living by suing for large sums and then settling out of court. There was a lawyer in Los Angeles suing nail parlors for using the same bottle of nail polish on more than one customer.

    Of course, it would be smart to keep the settlement amount below the cost to kneecap you.

  12. I thought IBM v. Phoenix Technologies already made it abundantly clear that APIs were not copyrightable in 1984?

    (Backstory: Phoenix made a clean room implementation of IBM’s PC ROM BIOS by having “dirty” engineers pour over the IBM API reference and source code and having them write a “clean” spec that was then handed over to the “clean room” engineers, who implemented the BIOS from that spec.)

  13. I would like to know who Alsup’s clerk was. Well written rulings are often the work product of a crackerjack clerk.

  14. @hari, @jess:

    Sure, everybody should be allowed representation, and when a lawyer accepts a client, he should do everything he ethically can to advance that client’s interest. As we saw in SCO, at least the Utah district court apparently wasn’t prepared to handle lawyers acting unethically very well.

    Judge Alsup’s court seemingly had a much better handle on this, but even then, his admonishment to Boies that “You’re one of the best lawyers in America. I don’t know how you could make that argument.” was quite a mild rebuke for what Boies was saying, and not even in the same class as his rebuke to Google’s lawyers that, essentially, this is a high-stakes case, and if Larry Page is summoned again, he damn well better show up.

    At the end of the day, it worked out. Google can afford to defend, and afford to have Larry hang around the courthouse for awhile — at least in this case. If lots of cases were going on simultaneously, it would be more of a problem. But even though the court came to the right decision on the merits, for it to simply accept that Oracle is allowed to use the courts to abuse Google’s personnel in this manner seems wrong. Although I will allow that I’m haven’t seen the endgame yet, and that Alsup might be able to successfully use the way he’s run the case to thwart any appeals and to shift most of google’s costs and fees to oracle, despite oracle’s “win” on some of the copyright issues. That would be awesome. But obviously BSF’s tactics work far too often, or they wouldn’t be engaging in them.

  15. I think this is a good ruling in many ways. What I do wonder though is this: creating an API is certainly a large and creative process. If it is not deserving of copyright protection why is anything else? Can anyone really say that there is more creative energy and originality put into, for example, an Album of U2 songs than is put into creating one module of the Java API?

    I’m not opposed to this ruling, obviously it is a very good thing from a pragmatic point of view, but you could also say that Google made a pretty serious error of judgement betting the farm on something with unclear provenance and ownership.

    As I say, if an API isn’t copyrightable, then what exactly does deserve copyright protection?

  16. @Winter

    Note also the Berne Convention, which the United States joined in 1988. Works with a copyright obtained anywhere in the Bern Union are to respected in any other state, although Wikipedia notes that in the US “statutory damages and attorney’s fees only available for registered works”.

  17. @patrick, I guess I’ve given up worrying about frivolous lawsuits. If the legal profession were concerned about that problem, they would do something about it, since they’re the only people in any position to. You know, until the revolution. In the meantime, does it make sense to call attorneys who file frivolous lawsuits unethical? Is there any plaintiff’s attorney (present company excluded) who hasn’t filed a frivolous lawsuit? Some of them work on contingency, and the bulk of such a practice probably isn’t frivolous, but BSF seem like the sort of lawyers whom delicate rich people pay to hold their hands while they weather the storms of life. They probably file frivolous lawsuits all the time. (At this point I should emphasize that any statements of mine are only opinions.)

    Seriously, worrying about the actions of plaintiff’s attorneys is like worrying about the actions of Al Sharpton, or the weather. They does what they does, and they don’t care what we think. Sure, it would be an enormous boon to industry and commerce if frivolous lawsuits could be curtailed. But is this really the barricade upon which to make our stand? Even though Google file fewer frivolous lawsuits than other large corporations, I think they can defend themselves. There are far more pitiable victims of this phenomenon.

  18. In the meantime, does it make sense to call attorneys who file frivolous lawsuits unethical?

    Absolutely. Because they are. Whether it does any good or not, though, depends on how severely we censure them. Please join me.

    Is there any plaintiff’s attorney (present company excluded) who hasn’t filed a frivolous lawsuit?

    Maybe not, but I would hope so. In any case, in addition to the filing of a frivolous lawsuit, there is the gaming of the system by both plaintiff and defense attorneys, that doesn’t get punished enough.

    Seriously, worrying about the actions of plaintiff’s attorneys is like worrying about the actions of Al Sharpton, or the weather.

    The weather is another story, but I think Al Sharpton has damaged himself enough that he can’t damage others as much as he used to be able to. I think judges are waking up to the fact that, for whatever reason (perhaps past laxness on the point of judges) we are going through a phase with reduced ethics on the part of some attorneys. Look at what’s happening in the Righthaven case, for example. But I think it is incumbent on the rest of us — bloggers, media, etc., to insure that judges know that we are watching and that we care.

    Even though Google file fewer frivolous lawsuits than other large corporations,

    That’s a very interesting statement. Can you point to any frivolous lawsuits filed by google.

    I think they can defend themselves. There are far more pitiable victims of this phenomenon.

    Absolutely. Perhaps you’ve misunderstood me. If even google can’t avoid baseless drive-by lawsuits, what chance do the rest of us have? When we have a clear example of a baseless drive-by lawsuit, we need to censure the firm(s) engaging in this. Which in this case are BSF and MoFo. But the worst abuses seem to have been promulgated by BSF.

  19. Pingback: Michael Tsai - Blog - API Copyrights Are Dead

  20. When we have a clear example of a baseless drive-by lawsuit, we need to censure the firm(s) engaging in this.

    When we have numerous examples of baseless drive-by lawsuits, we need to fix the system. In this regard (and many others), Europe is to the US what LLVM is to GCC: some bugs have become entrenched for so long and deliberately allowed to fester because they serve the interest of the system’s maintainers that it’s up to somebody else to start afresh and address these issues.

  21. @Jessica Boxer

    I highly recommend reading the actual opinion; it’s legible and accessible for both lawyers and techies. The basic ruling (which is correct both from the law itself and from a public-policy perspective) the actual API itself can’t be copyrighted because it is functional. The implementation can be, the documentation can be, but the line “public static int [java.lang.Math.]max(int a, int b)” can’t be because it’s required for interoperability.

  22. @hari “It is easy to talk of legal ethics when you’re outside the profession. All we do is put forward our client’s cases, for good or bad. As a profession we cannot be held liable for the faults of the parties, unless it is proven that the lawyer has committed an offence or has lied or deliberately misled the court or something equally bad.”

    *EVERY* law report is the history of a *mistake*. It may have been a small error but someone turned it into a MISTAKE. It may have been an error made, and error in understanding the facts, an error in law, or a error in mixed fact and law. But no-one makes to a courtroom without ONE OF THE PARTIES BEING WRONG about something fundamental to the question being decided *and refusing to acknowledge the fact of that error* (or being reasonable about the possibility of an error).

    And of course, the judge is the person in the room who knows the least about the actual events. The fog concerning Novell’s Agreement to sell unix to SCO is a perfect example. What was discussed was not what was eventually signed.
    I like to tell clients that I read case law in order to understand *how not to make errors*. And I can then play mother: “Don’t DO that!”. Good clients, who know more ways to screw up their business than I do, can extrapolate and avoid making those and other related errors. (They then do not have to retain me to fix their errors. Damn I hate it when that happens!).

    And BSF is not clueless. I think it highly likely that the lawyers were aware of how skinny the case was. And given the games which were played throughout, I think they bought in to the whole scam. They knew it was a lottery ticket. They knew *and Oracle knew* that there was nil chance of getting BILLIONS OF DOLLARS!!!! from this. This was pure testosterone. Really ‘good’ lawyers do not go forward with “bad” cases. (And as a reference point, BSF got paid $20Million, up front in SCO. Their mistake in the bargain, was how much actual lawyer time the fiasco would actually take: bet they never figured on 8+ years!)

  23. In the SCO case, BSF made a weird agreement with SCO with a fixed price representation scheme that made me think that they, BSF, had overestimated the value / strength of the case very badly. And David Boies has never impressed me as an attorney worth his reputation. Look over some of the reporting regarding his direct of Larry Ellison and tell me that you think Boies is worth his hourly rate. And his attempt to talk up the significance of rangeCheck / Timsort in terms of significance to Oracle’s damages claims is simply embarrassing.

  24. @Christopher Smith
    > I highly recommend reading the actual opinion
    Perhaps I will if I get time.

    > because it’s required for interoperability.
    But if I write a Harry Potter Encyclopedia I need to use the name “Hogwarts” for interoperability too. Apparently the courts didn’t find that a compelling argument.

  25. But if I write a Harry Potter Encyclopedia I need to use the name “Hogwarts” for interoperability too. Apparently the courts didn’t find that a compelling argument.

    Using the name “Hogwarts” wouldn’t be objectionable. Even writing an encyclopedia about the Harry Potter universe wouldn’t be objectionable. The particular case in question came down to a judgment of fact about how much of Rowling’s actual work went into the Lexicon.

    That said, US copyright law specifically states that copyright doesn’t “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery”, and an API is both a system and a method of operation.

  26. @Christopher Smith:

    That said, US copyright law specifically states that copyright doesn’t “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery”, and an API is both a system and a method of operation.

    While this is true, there may sometimes be enough text in an API to be copyrightable. Which is probably one reason why Judge Alsup was very circumspect in his decision. For example, I could envision a system that included lots of huge macros and/or inline functions. In that case, the re-implementer should probably cover his ass very carefully with a well-documented cleanroom process with good oversight, to turn the macros into a textual description of what has to happen (including, e.g. the names of the macros, but carefully omitting the names of any macro parameters), and then turn the textual description back into macros and/or inline functions using developers who had never seen the original.

    If you boil down the argument made by Oracle’s attorneys (and several independent observers, such as Edward Naughton), you might find youself agreeing that one thing that distinguished Oracle from previous cases such as Connectix was that there was obviously no copying of copyrightable text in the prior cases — the necessity to reverse engineer takes you much closer to the metal.

    Google had it easy — there were lots of books, etc. on the API. Not only that, but there were lots of programmers who knew the API, which led Oracle to cry foul — obviously it couldn’t have truly been a cleanroom implementation, because not everybody had a mind wipe.

    Unfortunately for Oracle, there was not enough meat in the API to be copyrightable, so at the API level, it didn’t really matter how clean the cleanroom was. Not that Oracle didn’t try to make a huge mountain out of this molehill — they (and some of the observers) even argued that google’s use of programmers who already knew java was tantamount to “stealing” Oracle’s developers. But that argument doesn’t get you anywhere at all. If I were the judge (especially in California) that alone would have been enough to raise enough red flags to make me study all the issues very carefully. People are not chattel.

    One good thing about this judgment is in relation to the GPL. I think it clarifies how terribly overreaching some of the FUD put out by Stallman and the FSF was.

    No matter how much good people like Stallman and Moglen might do, I cannot forgive them for their own attempts at spin on this issue.

  27. While this is true, there may sometimes be enough text in an API to be copyrightable.

    Can you give an example where you think this might occur? Specifically, names as such can’t be copyrighted, and the collection of tokens can’t be copyrighted to the extent that it’s strictly functional. So beyond the documentation for the semantics of the API calls, what is there that’s both API and non-functional to copyright?

  28. > But no-one makes to a courtroom without ONE OF THE PARTIES BEING WRONG about something fundamental to the question being decided

    Not so simple.

    I think that’s a fundamental mistake most laypersons make and assume that most cases are dependent on “right” vs “wrong”. Not always does a case hinge on something as fundamental. Sometimes cases depend on future eventualities, sometimes on unknown factors like documents which only a court of law has the power to order disclosure, as well and sometimes (rarely) when both parties appear to have a strong case on the alleged facts, then a case may be decided on the probabilities of the case or even the reliability of the evidence brought forward, even a fine point of law which even lawyers might be mistaken about. The only thing is that even a judge might be mistaken, but he is always right!!

  29. @Christopher Smith:

    Can you give an example where you think this might occur? Specifically, names as such can’t be copyrighted, and the collection of tokens can’t be copyrighted to the extent that it’s strictly functional.

    Careful. If you take that line of thinking too far, you will stretch it to cover an entire program.

    Obviously an API could have inline functions and macros with quite sophisticated functionality. Look at some of the Boost C++ libraries for an example of this. Obviously, you can’t protect functionality. But that doesn’t mean that people are allowed to wholesale copy large macros and functions. Rather, it means that people are allowed to write large macros and functions that do the same thing.

    It may be that “do the same thing” can only be done in one way, but as the functionality increases, the chances of this being true decrease. The best way to make sure you’re not violating copyright is the tried and true clean room, where one team extracts functional requirements from preexisting code, and another team implements according to the functional requirements. With a well-known system like Java, you might be able to dispense with the extraction team by using publicly available documentation, but you still want the lawyers to vet the documentation to make sure it doesn’t contain any protectible elements from the original code.

    In addition to libraries like Boost, consider, for example, Python, where there are no separate header files. You can easily access anything inside a module. If a module’s functionality isn’t quite to your liking, you could even extend it quite easily by monkey patching.

    So, in a very real sense, the only thing that delineates “API” from “non-API” in a Python program is convention (except for the somewhat unusual case of double-underscore prefixes). If a module has minimal documentation and a few well-designed classes, you might knock yourself out with subclasses, etc.

    Now, does this mean that someone who is “writing” a replacement module is allowed to just say “well, they could access anything inside here, so the only safe thing to do is to simply copy it”?

    Umm, no.

    That’s actually been tried before, in Apple v. Franklin. Granted, that was argued a long time ago, but I have a feeling that even if it were argued today, Franklin would lose.

    The safest thing to do is to show that (a) you tried not to make an exact copy; (b) you put a process in place to support this; and (c) knowledgeable copyright lawyers supervised this process.

    I think google’s actually done a pretty good job of this.

  30. It is worth pointing out the BSF took a single payment to follow the SCO litigation to the end, and probably didn’t have to with Oracle.

    Same result in both cases, but you have to wonder how their enthusiasm was as the SCO case tanked.

  31. >Same result in both cases, but you have to wonder how their enthusiasm was as the SCO case tanked.

    The quality of BSF’s work in the SCO case started out competent, but devolved rapidly through sub-par down through outright bad to what-are-they-smoking awful. You can verify this yourself by looking at the briefs on Groklaw.

    Towards the end I suspect that case was a shit detail mainly being worked by the people they could least afford to not have working other cases, meaning very junior and not in good odor with the managing partners.

    Then again, their first team wasn’t all that good. David Boies, in particular, is a puffed-up mediocrity with far better press than he deserves. The smartest move he made in the whole case was distancing himself from it after the opening salvos.

  32. @esr:

    The smartest move [Boies] made in the whole [SCO] case was distancing himself from it after the opening salvos.

    And the dumbest move he made was not understanding it well enough to realize that Oracle could only become, as you said, the SCO redux…

  33. @esr “how-to manual explaining how to demolish claims of API copyrightability in general. If and when such a claim is again litigated in a U.S. jurisdiction, you can bet a vital organ that this ruling will be cited”

    Certainly it will, but:
    1) Is Alsup himself sure enough that this ruling will withstand Oracle’s appeal? OK, Muller is Muller, but I see his reasoning, that if he were, he’d rule so before the jury deliberations, quite reasonable. Alsup himself deals with the possibility of it being overruled.
    2) This ruling, if not made more general further in this case, or in another, wouldn’t probably be enough to strike another API copyright lawsuit, unless really identical, by means of a summary judgement, much less for a court to dismiss as frivolous. This means it will be of much help to a big company, but will it be to an indie developer, or will they surrender or succumb financially long before they get to cite this ruling in a court of law?

  34. But if I write a Harry Potter Encyclopedia I need to use the name “Hogwarts” for interoperability too. Apparently the courts didn’t find that a compelling argument.

    Based on Judge Alsup’s finding (it’s a REALLY good read) that would be fine. In particular US Copyright law specifically does not cover names or small strings (e.g. an advertising slogan). Now having said that, “Hogwarts” and “Harry Potter” are both going to be trademarked and that covers names just fine. You’d be hosed by trademark infringement especially because it would be hard to argue you’re not “passing off” as the same thing.

    This is (from the sounds of it) by design. Trademarks, Copyrights and Patents are all distinct and separate and you can’t copyright something that should be patented.

    P.S. it’s kind of amusing but we should have known… of course someone with a middle name of “Haskell” should be a part time coder, at least.

  35. >Is Alsup himself sure enough that this ruling will withstand Oracle’s appeal?

    I can’t read Alsup’s mind. But if I were in his shoes I’d feel pretty confident, precisely because it’s such a conservative extension of the Altai reasoning.

    >This means it will be of much help to a big company, but will it be to an indie developer, or will they surrender or succumb financially long before they get to cite this ruling in a court of law?

    Well…one thing it should be good for is preventing $BULLY from getting a TRO against your hypothetical indie. That will remove a lot of the pressure.

  36. Is Alsup himself sure enough that this ruling will withstand Oracle’s appeal? OK, Muller is Muller, but I see his reasoning, that if he were, he’d rule so before the jury deliberations, quite reasonable. Alsup himself deals with the possibility of it being overruled.

    The problem with Oracle’s position has been the difficulty involved in pinning them to a coherent accusation. You ask about point 1 and they talk about point 2 and rail about point 3 which has nothing to do with current law. To be fair, the Google responses have been pretty indistinguishable from gaming as well. The whole kerfuffle over the Lindholm email made their whole case look much more desperate than it really was.

    Ultimately, this whole thing comes down to that there was enough weaknesses in Google’s pre-trial JMOL submission that Judge A probably felt that it would be successfully appealed if he approved it. After the trial, and how confusing it got, he probably just decided “bugger it, i’m going to have to record this whole thing anyway just so the next guy will have all the facts” . He even said as much in the ruling.

    IANAL, but think there’s no stain on the decision because he waited for the trial to show all the facts. If this ruling does get shot down, it would have to be because he’s missed part of the legal history. And lets be honest here, unless Oracle backs down, this is going to be decided by the Supreme’s. The only way this doesn’t get writ of mandamus is because it’s upheld on appeal and the supreme’s agree.

    On the other side, assuming this ruling survives to gets quoted, the reason it will be quoted is not because it came down on the side of no copyright for APIs. As ESR says, it’s because this feels about as comprehensive a summary of the legal history you could get without going back to textbooks.

    In fact, i swear i’ve gotten less information from $90 textbooks than from that ruling.

  37. @JonCB:

    The only way this doesn’t get writ of mandamus is because it’s upheld on appeal and the supreme’s agree.

    Assuming the decision is upheld by the appellate court, I kind of hope the supremes don’t take it. Look at their (lack of a) ruling in Costco v Omega and tell me they understand the first thing about the public bargain part of copyright.

    They have a chance coming up to make Costco right, or to make it much wronger. Let’s hope they get it right: John Wiley & Sons Inc. v. Kirtsaeng. Elena Kagan will be the wildcard there — she argued some of Obama’s/RIAA’s party line before, which is why she recused herself from Costco, but OTOH she recruited Larry Lessig to Harvard from Stanford.

  38. Assuming the decision is upheld by the appellate court, I kind of hope the supremes don’t take it. Look at their (lack of a) ruling in Costco v Omega and tell me they understand the first thing about the public bargain part of copyright.

    They might take the case anyway, just because it is a question of law that hasn’t been litigated directly.But i agree, the best result would be upheld by the appellate court and then passed over by the supreme’s.

  39. US copyright law specifically states that copyright doesn’t “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery”

    A computer program is … “procedure, process, system, method of operation” and damned little else.

  40. Does not matter Monster since Congress specifically includes computer programs as copyrightable subject matter elsewhere.

  41. Pingback: API Copyrights Are Dead « 36 Chambers – The Legendary Journeys: Execution to the max!

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