[License-discuss] Copyright on APIs

[Lukas Atkinson]

> 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 is correct that patents are largely ignored because huge swaths of open
source software are not in any way affected by patents. I don't go and file
patents for every copyleft software that I write. However, any software is
automatically subject to copyright so that's something a practical copyleft
license can actually use.

Where patents are available it is fine for a license to make use of those
to ensure software freedom (like the Apache 2 license does quite
elegantly). But if your license needs patents to be effective, that license
is inadequate for most open source software. Copyright must be the primary
legal mechanism.

I therefore think any mention of patents detracts from the question of API
copyrightability.

On the other hand, I think your actual arguments about API copyright are
consistent and sensible. If API copyright exists it should be used by
copyleft licenses to that degree that the use of such rights furthers
software freedom, e.g. see issues around readline reimplementations. If API
copyright is part of copyright, then I agree that it is already covered by
the GPLv3. It makes no sense to insist that it shouldn't exist when that
ship has already sailed. (But is that ship already sailing?)
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