[License-discuss] Copyright on APIs

[VanL]

There are two issues here. I don't think anyone would argue that APIs are
not protectable under any IP law. They may be protectable under copyright
law, under patent law, or both. So 1) What is licenseable about an API
under copyright law? and 2) What is licenseable about an API under patent
law?

1) With regard to copyrights, and as broadly identified by Luis, the key
question is whether the API is part of the "Work":

On Tue, Jul 2, 2019 at 8:20 AM Luis Villa <luis at lu.is> wrote:

> On Sat, Jun 29, 2019 at 5:34 PM Lawrence Rosen <lrosen at rosenlaw.com> wrote
>
>>
>>
>> Pam Chestek asked:
>>
>> > How do you know where the line is?
>>
>>
>>
>> I believe the line is actual copying of the expressive source code.
>>
>
> I dislike this, but the Federal Circuit would tell you that the APIs are
> expressive source code.
>

If the API is part of the "Work" for copyright purposes, then copying the
API is subject to copyleft *under any copyleft license, currently-accepted
licenses included.*

I would love someone to give a non-policy response to this point. As Larry
noted, this is roughly what the FSF has been arguing for 20 years as
"strong copyleft." As argued  by the FSF FAQ
<https://www.gnu.org/licenses/gpl-faq.en.html>, the inclusion of *any* code
element from a copylefted source makes the entire work a derived work. (See
the the "Bison" and "plug-ins" questions) As an aside, the FSF's position
here is consistent with analogous current law regarding what makes a
derivative work in a music compositions.

The argument against this was always that "the identified elements are
statutorily excluded from copyright" under 17 USC 102. I don't think that
is a sound legal position anymore.

2) That brings us to the second point: Patents. This point is being largely
ignored, because for a long time copyright was seen as the prime mover As
has been argued on this list, there is generally a consensus that the OSD
requires a patent grant. But that means that any "use" of a patented
invention (of which there are plenty in FOSS), including the use of the
API, is subject to the "use" right under patent law.

It may not be the ideal policy position, byt I don't see how to escape the
conclusion that the API is a licenseable part of a software work under
*some* law, and thus that the requirements of the license (including
copyleft) would accordingly apply.

Thanks,
Van
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