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Electronic Frontier Foundation asks Supreme Court for API help

by on10 November 2014

They are NOT software

The Electronic Frontier Foundation (EFF) filed a brief with the Supreme Court of the United States asking them to state the obvious – that API’s are not copyrightable. The EFF is arguing on behalf of 77 computer scientists that the justices should review a disastrous appellate court decision.

That decision, handed down by the US Court of Appeals for the Federal Circuit in May, up-ended decades of settled legal precedent and industry practice.

Signatories to the brief include five Turing Award winners, four National Medal of Technology winners, and numerous fellows of the Association for Computing Machinery, IEEE, and the American Academy of Arts and Sciences. The list also includes designers of computer systems and programming languages such as AppleScript, AWK, C++, Haskell, IBM S/360, Java, JavaScript, Lotus 1-2-3, MS-DOS, Python, Scala, SmallTalk, TCP/IP, Unix, and Wiki.

EFF Intellectual Property Director Corynne McSherry said that the Federal Circuit's decision was wrong and dangerous for technological innovation. Excluding APIs from copyright protection has been essential to the development of modern computers and the Internet. The ruling is bad law, and bad policy.

The freedom to re-implement and extend existing APIs has been the key to competition and progress in both hardware and software development. It made possible the emergence and success of many robust industries we now take for granted—for example, mainframes, PCs, and workstations/servers—by ensuring that competitors could challenge established players and advance the state of the art.

All that started to become unstuck when Oracle sued Google over its use of Java APIs in the Android OS. Google wrote its own implementation of the Java APIs, but, in order to allow developers to write their own programs for Android, Google's implementation used the same names, organization, and functionality as the Java APIs.

In May 2012, Judge William Alsup of the Northern District of California ruled that the Java APIs were not subject to copyright. The court understood that ruling otherwise would have allowed Oracle to tie up "a utilitarian and functional set of symbols" that provides the basis for so much of the innovation and collaboration we all rely on today. The Federal Circuit disagreed, holding that Java's API packages were copyrightable, although it sent the case back to the trial court to determine whether Google's copying was nonetheless a lawful fair use.

"For decades, computer scientists and the courts have all understood that copyright doesn't protect APIs," EFF Special Counsel Michael Barclay said. "We hope that the Supreme Court will review this case and reverse the Federal Circuit's misguided opinion, which up-ended decades of industry practice and threatens the basic principles upon which our technology sector was built."

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