One Last Push To Save The API

A group of computer experts – including me – asked a US court to think again about fair use of APIs this month.

Tomás Saraceno artworks at SF MOMA: Stillness in Motion—Cloud Cities

It was an unlucky fact that Oracle’s case against Google over Android started with patents. Their initial case fell apart almost immediately, with almost all the patent claims invalidated. The implausable backstop copyright case Oracle made against Android’s use of language-essential definitions in the Java APIs (and thus against the freedom of developers everywhere) carried on though. The initial patent case meant that the appeal when Oracle soundly lost ended up at the Court of Appeals for the Federal Circuit (CAFC) — the specialist patent appeals court in the USA — and not at a court competent to dispense copyright justice.

The result has been two reversals by CAFC of lower court outcomes that seemed correct to most of us who understand the issues involved. In the most recent reversal, CAFC even overturned a strong and apparently sound jury verdict — exceptional behaviour. In response to that reversal, a large group of experts collectively representing hundreds of years of experience of inventing, implementing and instantiating software solutions has once again put signatures to a new amicus statement to help the courts understand the technical nuances of the case, especially the fact that an API is not code.

This time the goal is to have CAFC rehear the appeal that (in our opinion) erroneously overturned the jury verdict. In summary, we believe that the most recent decision by CAFC “disregards the technical realities of software APIs and directly conflicts with Ninth Circuit law.”

To unpack that a little: since CAFC is a court with specialist expertise in patent cases, its job in a copyright case is to second-guess the decision that the correct venue — in this instance the Court of Appeals for the 9th Circuit — would make in the case if they were hearing it. The brief explains how CAFC appears to have guessed wrong this time. It also explains how CAFC has not understood the nature of APIs and thus has applied the wrong comparisons to determine if Android’s use of the essential core of Java is fair use. To me, the most telling statement is the footnote on page 5:

Throughout this brief, amici use only the term “declarations” instead of “declaring code,” which was sometimes used in the panel opinion. “Declaring code” is not a term of art, and is not used in the industry, in part because declarations are not code: they cannot be executed by a computer and their only function is to dictate how code communicates with other code.

This was the point I explained to the judge during the hearing and appears to be the crux of the misunderstanding at CAFC – they appear to think think APIs are code. Hopefully this brief will clarify things for them, get them to rehear the appeal en banc and partially mitigate the disaster Oracle is bringing on developers everywhere. I’m told the outcome of this case doesn’t create useful case law, so if this doesn’t work out, we will have to wait for the next API lawsuit to come along to set the right precedents (and hope it isn’t also subject to the same patent gaming). That could take years — this case is already nearly 8 years old — so a correction in Oracle vs Google would be preferable.

Copyright Needs Radical Reform

Use of copyright today far exceeds the ways its framers imagined. We need reform, not just adjustments.

Cow Pulling Lawn Mower In Delhi

Copyright is back in the news in Europe. In the UK, the Digital Economy Bill proposes to increase the maximum prison sentence for online copyright infringement to ten years. Meanwhile, an extensive modernisation of copyright for the EU is also in progress, with a goal of making the treatment of copyright the same across Europe, especially in relation to digital media. Continue reading

DRM Is Toxic To Culture

In pursuit of market control now, deployers of DRM are robbing us of our culture in perpetuity by enclosing the future commons.

Dry Stone Wall

Ancient dry stone enclosure wall in Cornwall, England

It’s possible that you think that unauthorised use of copyrighted music, films and books is such a serious problem that it’s worth giving away a little of your convenience and freedom in exchange for stopping it. If you do, I’d like to suggest you think again – and time is running out.  Continue reading

Copyright: A Modest Proposal

Maybe if we stopped saying “copy” everywhere we’d find a way to fix copyright?

Ball Of Points

  1. Why is a song that I play digitally or a book I read electronically subject to extensive controls that are not considered appropriate to physical records or books? It’s because they are subject to licenses that can’t be applied by the seller to the physical works.
  2. Why can those licences be imposed on digital works? Because the use of digital works is considered subject to copyright, whereas the use of physical works is not because of a legal doctrine called “copyright exhaustion”.
  3. Why is that? Because the act of instantiating the work for use has been described as “copying”, allowing the rules surrounding copyright to be used as a threat to back up arbitrary license terms controlling use.
    Continue reading

What Is An API? The Clue Is In The Name

Wild Webmink

At the end of my testimony in the recent Oracle v Google trial in San Francisco, Judge Alsup asked me to explain what an API is. My answer aimed to simplify the answer for a general listener while remaining recognizable to most programmers. Here’s what I said.

The Java source code of OpenJDK usefully follows a layout convention. Up front of each file is a copyright and license statement. After that come a sequence of definitions of the various standard functions that complete the Java programming language. Together, a set of related definitions comprise a class library.

Each of those definitions comprise three parts. There is a function declaration, which defines the name of the function and the order and data types of the parameters used by the function. After that is a comment block with a summary of the specification for the function, tagged to allow it to be…

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Apache License Yes, Apache CLA No

In a thread on Twitter, the CTO at Chef Software defended the company against the accusation from an open source contributor that it demands copyright assignment from contributors. Chef’s CTO Adam Jacob explained that the company does copy Apache rules and thus requires a copyright license agreement (CLA) in addition to Apache’s open source license – not copyright assignment. He said:

we have never asked for copyright assignment. We do ask for a license, as Apache license requires.

That’s not actually correct, even if it’s a sufficiently common misunderstanding that Jacob really shouldn’t be called out for asserting it (especially as he was probably just suffering from Twitter’s 140 character limit!). Copying Apache’s license does not imply you should copy the rest of Apache’s CLA practice. The Apache License v2 (ALv2) is the best choice among non-reciprocal licenses for new projects, mostly because it includes explicit patent licensing. It is a perfectly effective license to use for any open source project where the community has no expectation of contribution on the part of users of the code, as it conveys all the rights you need to work with the code independently of others. Continue reading

Digital Life Clippings – Christmas Break Edition

  1. Police called to remove pre-teens just in case they pirated Hunger Games movie with cellphonesArs Technica – Given the storyline of the movie, this is ironic. Cineworld thinks copyrights are so precious it’s worth infringing common sense and individual rights to protect them. They think paying customers are criminals until proven otherwise, even kids. Don’t let any kids you care about watch movies at a cinema with this attitude, it’s not safe.
  2. The most wasteful patent aggression strategy ever has failedArs Technica – Another skirmish in the ongoing dirty war by the legacy technology & media industry against Google bites the dust.
  3. NSA dumps incriminating documents on Christmas EveBoing Boing – Anyone who doubts the effectiveness of Freedom of Information requests should see how government agencies squirm responding to them.
  4. Inadvertent Algorithmic CrueltyMeyerWeb – Facebook’s Year In Review is a product of an unremittingly positive mindset that believes algorithms can handle anything. This time I think it will be widely regretted rather than welcomed, for the reasons Eric Meyer explains and I expand. Algorithms can’t exercise discretion; don’t use them for things that demand it.
  5. Cuba’s “offline Internet”Guardian – The Internet was designed to work around obstacles. This fascinating example does it via sneakernet.