[License-discuss] Copyright on APIs

[Richard Fontana]

On Tue, Jul 2, 2019 at 1:41 PM Bruce Perens via License-discuss
<license-discuss at lists.opensource.org> wrote
>
> On Tue, Jul 2, 2019 at 10:32 AM VanL <van.lindberg at gmail.com> wrote:
>>
>> Let's assume for a moment that 1) APIs are copyrightable, and 2) I have an "expressive" API (for whatever value of "expressive" you choose). If I write a reimplementation that copies the "expressive" elements from your API, are you arguing that I have *not* created a derivative work?
>
>
> No, because any re-implementation of an API is constrained by an outside influence, the requirement to be compatible with the original API, and thus is entirely functional and not subject to copyright. Art may go into the original creation of the API according to some court. How an API implementation and re-implementation interact in copyright terms is fertile territory for lawyers to argue about.

I feel like I may be channeling Larry Rosen but turning to the
statutory definition of "derivative work" in the US Copyright Act:

"A “derivative work” is a work based upon one or more preexisting
works, such as a translation, musical arrangement, dramatization,
fictionalization, motion picture version, sound recording, art
reproduction, abridgment, condensation, or any other form in which a
work may be recast, transformed, or adapted. A work consisting of
editorial revisions, annotations, elaborations, or other modifications
which, as a whole, represent an original work of authorship, is a
“derivative work”."

I believe one could reasonably argue that a reimplementation of an API
(necessarily copying the supposed expressive elements of the API) does
not fit this definition (even if it would fit the folk notion of
derivative work that the free software/open source community largely
seems to subscribe to).

Richard