[License-discuss] Copyright on APIs

[Lawrence Rosen]

Larry Rosen wrote:

> I believe the line is actual copying of the expressive source code.

 

Luis Villa responded:

> I dislike this, but the Federal Circuit would tell you that the APIs are expressive source code. 

 

I don't disagree; it is expressive source code, just as in Van's example a short sequence of mere notes is a musical expression. But 17 USC 102(b) excludes functional code from copyright protection "regardless of the [expressive] form in which it is described, explained, illustrated, or embodied in such work." Even the Federal Circuit forgot to read that provision!

 

I believe this interpretation is consistent with what Patrice-Emmanuel described as EU software law. Their law forbids the unnecessary copying of the expressive source code to achieve functional interworking, not just any copying.*  To the extent that OSI license policies need to be consistent world-wide, don't we need the Supreme Court to convince the Federal Circuit?

 

/Larry

 

* I believe that is consistent with the "abstraction-filtration-comparison" test that has long been accepted in most US and some foreign jurisdictions. The AFC test is used to determine whether elements of a computer program have been copied by comparing the protectable elements of two programs.

 

 

From: Luis Villa <luis at lu.is> 
Sent: Tuesday, July 2, 2019 6:20 AM
To: Lawrence Rosen <lrosen at rosenlaw.com>; license-discuss at lists.opensource.org
Subject: Re: [License-discuss] Copyright on APIs

 

On Sat, Jun 29, 2019 at 5:34 PM Lawrence Rosen <lrosen at rosenlaw.com <mailto:lrosen at rosenlaw.com> > wrote:

Patrice-Emmanuel Schmitz wrote:

> ... this invalidates also the theory of strong copyleft, in my opinion.

 

Bruce Perens wrote:

> I think we need another phrase than "strong copyleft".

 

I believe that Patrice-Emmanuel is correct for U.S. copyright law also. Unlike Bruce, I don't believe that the problem is the term "strong copyleft" but rather the strong assertion of some GPL license advocates who declare that mere linking between independent programs creates a copyright ("copyleft") obligation for both programs. Linking is an example of a mere API that can be used freely without obligations. (Other examples are "class inheritance" and "copying a functional header file.") Unless that is what we mean by API, then your program will adversely affect my independent program, without legal copyright or license authority.

 

That is what most of us are asking the US Supreme Court to acknowledge.

 

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. 

 

Luis

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