[License-discuss] Copyright on APIs

[Pamela Chestek]

On 7/2/2019 11:25 AM, VanL wrote:
> 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
> <mailto:luis at lu.is>> wrote:
>
>     On Sat, Jun 29, 2019 at 5:34 PM Lawrence Rosen
>     <lrosen at rosenlaw.com <mailto: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
>
>
Van, I agree with everything you say. But that doesn't answer the same
question as "is it open source"? Add to that the interesting possibility
that currently-existing licenses will now reach beyond what everyone
thought their scope was. Do we expand the meaning of "open source" to
match? Or do we just accept it as an unfortunate outcome but not embrace it?

Pam

Pamela S. Chestek
Chestek Legal
PO Box 2492
Raleigh, NC 27602
919-800-8033
pamela at chesteklegal.com
www.chesteklegal.com
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://lists.opensource.org/pipermail/license-discuss_lists.opensource.org/attachments/20190702/6661dfe7/attachment-0001.html>