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Google’s closing argument: Android was built from scratch, the fair way
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Comments (8)
I've gone back and forth on this one...
I now think that 'copyrighted' is the correct assessment with regard to APIs [or declaring code]. However, I think fair use should prevail over required permission and payment.
It is true that an API is a component of intellectual property. One needs to think about the organization and structure of what a given programming function is going to do and what variables will be passed between the called and the calling function. However, this sort of reasoning leads also to the understanding that a web domain name is also copyrighted as well as all sorts of other things. Fair use needs to prevail in this case, otherwise the future of many things will become rather murky.
I now think that 'copyrighted' is the correct assessment with regard to APIs [or declaring code]. However, I think fair use should prevail over required permission and payment.
It is true that an API is a component of intellectual property. One needs to think about the organization and structure of what a given programming function is going to do and what variables will be passed between the called and the calling function. However, this sort of reasoning leads also to the understanding that a web domain name is also copyrighted as well as all sorts of other things. Fair use needs to prevail in this case, otherwise the future of many things will become rather murky.
17 U.S. Code § 102 - Subject matter of copyright: In general
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
https://www.law.cornell.edu/uscode/text/17/102
Since at least back when Phoenix implemented the IBM PC BIOS, https://en.wikipedia.org/wiki/Phoenix_Technologies#Cloning_t... APIs have been clearly understood to be excluded from copyright protection
This exclusion is in accordance with the philosophical principles, and the legal justification for copyright's existence in the first place, as well as case law going back much further. Also worth noting (and so noted in the drafting process leading up to this section of the copyright act) a copyright on an API would be essentially a patent under another name -- and with a far longer lifespan than we consider appropriate for actual patents proper.
European copyright law, all though written differently, recognizes the same exclusion, for the same reasons.
The problem here is not Google, Android, or copyright -- the problem is an Appeals court (the CAFC). The CAFC specializes in Patent law cases, and has a long history of pushing it's own "Intellectual Property" agenda, even if they have to twist the law to do so. The CAFC over-ruled the judge (Alsup) who even troubled to learn Java, to confirm (and to carefully illustrate for the CAFC) that the Java API is in fact the kind of "functional expression" or "procedure, process, system, method of operation" that is excluded under 102b.
The court that created the patent troll mess is screwing up copyright too http://www.vox.com/2014/5/9/5699960/this-court-decision-is-a...
How a rogue appeals court wrecked the patent system http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appea...
Fair use would be better than nothing, but it would be a superficial and unsatisfactory bandage for the fundamental, underlying problem, not a solution. (And if you think Patent trolls are a pain, wait till the get into copyright trolling).
(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.
https://www.law.cornell.edu/uscode/text/17/102
Since at least back when Phoenix implemented the IBM PC BIOS, https://en.wikipedia.org/wiki/Phoenix_Technologies#Cloning_t... APIs have been clearly understood to be excluded from copyright protection
This exclusion is in accordance with the philosophical principles, and the legal justification for copyright's existence in the first place, as well as case law going back much further. Also worth noting (and so noted in the drafting process leading up to this section of the copyright act) a copyright on an API would be essentially a patent under another name -- and with a far longer lifespan than we consider appropriate for actual patents proper.
European copyright law, all though written differently, recognizes the same exclusion, for the same reasons.
The problem here is not Google, Android, or copyright -- the problem is an Appeals court (the CAFC). The CAFC specializes in Patent law cases, and has a long history of pushing it's own "Intellectual Property" agenda, even if they have to twist the law to do so. The CAFC over-ruled the judge (Alsup) who even troubled to learn Java, to confirm (and to carefully illustrate for the CAFC) that the Java API is in fact the kind of "functional expression" or "procedure, process, system, method of operation" that is excluded under 102b.
The court that created the patent troll mess is screwing up copyright too http://www.vox.com/2014/5/9/5699960/this-court-decision-is-a...
How a rogue appeals court wrecked the patent system http://arstechnica.com/tech-policy/2012/09/how-a-rogue-appea...
Fair use would be better than nothing, but it would be a superficial and unsatisfactory bandage for the fundamental, underlying problem, not a solution. (And if you think Patent trolls are a pain, wait till the get into copyright trolling).
Don't novels contain ideas?
I guess I need to read the legal decision... but it seems likely that the stated copyright law excerpt is intended to address the overlap between copyright and patents. The text as written could be construed as to exclude copyright on technical documentation of any sort... including manuals, schematics of devices, and so on. It seems unlikely that this exclusion is the intended target of the law as written, especially since every technical manual I've run across has a copyright notation.
I'm not intentionally arguing here... The definitions at play just seem a bit too subtle and/or muddled.
What would make sense to me, would be to equate an API or 'declaring code' to sentences in a novel or an index or a table of contents.
And here's what I found on the "copyrightableness" of a table of contents:
[PDF]
http://www.copyright.com/content/dam/cc3/marketing/documents/pdfs/CR-Fair-Use.pdf
I guess I need to read the legal decision... but it seems likely that the stated copyright law excerpt is intended to address the overlap between copyright and patents. The text as written could be construed as to exclude copyright on technical documentation of any sort... including manuals, schematics of devices, and so on. It seems unlikely that this exclusion is the intended target of the law as written, especially since every technical manual I've run across has a copyright notation.
I'm not intentionally arguing here... The definitions at play just seem a bit too subtle and/or muddled.
What would make sense to me, would be to equate an API or 'declaring code' to sentences in a novel or an index or a table of contents.
And here's what I found on the "copyrightableness" of a table of contents:
[PDF]
http://www.copyright.com/content/dam/cc3/marketing/documents/pdfs/CR-Fair-Use.pdf
> Don't novels contain ideas?
Yes, but the ideas aren't copyrighted. Only the specific presentation of them.
Yes, but the ideas aren't copyrighted. Only the specific presentation of them.
>Yes, but the ideas aren't copyrighted. Only the specific presentation of them.
Exactly... and a function declaration is also a specific presentation or arrangement of an idea.
Again, I'm not intentional arguing. It just seems that the definitions are wide enough to include function declarations as copyrightable.
Exactly... and a function declaration is also a specific presentation or arrangement of an idea.
Again, I'm not intentional arguing. It just seems that the definitions are wide enough to include function declarations as copyrightable.
That might be a bit misleading. The ideas in novels aren't copyrighted; only the artistic expression of them is. Artistic expression is not really a part of an API. It's purely technical, and has always been considered uncopyrightable in the past, right up until this rather off-the-wall (in a historical sense) interpretation by the Court of Appeals. This interpretation pretty much turns the software industry on its head in relation to the way things have been done up till now.
> The ideas in novels aren't copyrighted; only the artistic expression of them is.
That's a good point, which I had forgotten. But yes, as I understand it there has to be some creative element to the work for copyright to apply.
That's a good point, which I had forgotten. But yes, as I understand it there has to be some creative element to the work for copyright to apply.
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