[License-discuss] [License-review] Copyright on APIs

Bruce Perens bruce at perens.com
Sat Jun 29 18:57:26 UTC 2019

This is connected with why I gave up on Open Hardware licenses. Pretty much
every one of them attempts to assert copyright rights upon things that can
not reliably be copyrighted under current US law. In this case to assert it
over the production of hardware devices implementing a schematic design
which is IMO entirely functional. Eventually the question of hardware
design copyright will get to a court, which will look at industry practice
before making a decision that *extends copyright. *We should not be
providing the examples which prompt the court to do that.

And of course there is a similar argument for API copyright, designs of
three dimensional shapes (where the analogous 2-D fonts today can be traced
with impunity), etc.



On Sat, Jun 29, 2019 at 9:58 AM Lukas Atkinson <opensource at lukasatkinson.de>

> I do not think the question of whether API copyright exists is that
> relevant for review. Clearly, it is not in the interest of the open source
> community for such a right to exist, as Bruce points out. But where such a
> right does exist it ought to be fine for an open source license to exercise
> that right as part of a copyleft mechanism.
> In this sense, the failing of the CAL is not that it also covers API
> copyright, but that it claims such a right regardless of whether it
> actually exists in the relevant jurisdictions. As a thought experiment, if
> the CAL were reworded so that it clearly only claims to cover API copyright
> if that right exists:
>  - would that be an OSD 5 violation because it effectively gives different
> rights to licensees depending on their jurisdictions? Licensees in a
> jurisdiction without API copyright would have more rights. But isn't that
> the case with any license since local copyright laws might offer some
> copyright exception? Jurisdiction-specific concerns also tie in to the
> “public performance” discussion.
>  - would this make the license less clear? Users might not know whether
> API copyright applies to them. But arguably, other license's effects (such
> as the GPL's effects with dynamic linking) are just as murky.
>  - would this be strategically undesirable because it would promote the
> creation of API copyright where it doesn't already exist?
> I am very conflicted on each of these points and could argue them either
> way.
> Since it is not yet 100% clear whether API copyright exists in any
> jurisdiction and what its effects are, it would be better for the CAL to
> ignore this – for the time being. However, it might be a good idea to
> future-proof the license to allow API copyleft once it is established more
> clearly. For example:
>  - a mechanism for additional terms similar to GPLv3 section 7, and allow
> terms that add API copyleft. The CAL already has a small case of such a
> mechanism with its Combined Work Exception.
>  - a license compatibility mechanism similar to the Creative Commons
> licenses, so that API copyleft could be patched in a later version.
> However, this raises the question of who may deem a license compatible. For
> the CC and GPL licenses this only works because the license steward is
> widely trusted. I'm personally not a fan of the GPL's opt-in to
> compatibility since that leads to a fractured ecosystem.
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Bruce Perens - Partner, OSS.Capital.
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