APIs Protected By Copyright, Programmers Stand Aghast

The more and more information becomes digitized and hidden beyond a invisible wall to the layman in the form of code and programming languages, the more convoluted its application can become in the world of intellectual property law. One phenomenon of this world are APIs, or in other words, Application Programming Interfaces. APIs are software-to-software applications released by companies, like Google, which enable other developers to more easily access and use their services, such as embedding Google's search services onto a web blog allowing for readers to search the site more easily. Effectively it allows for the two applications to communicate between each other without any interference by the users themselves. APIs have been fought over for some time by the two tech giants, Google and Oracle, since 2012, and came to a head early last month in the US Court of Appeals.

The case, decided in May 2014, dealt with 37 API packages released by Oracle (at the time Sun Microsystems) which pertained to its Java platform. The two parties, Google and Oracle, attempted to reach an agreement to use the Java platform in Google's new mobile operating system, Android, but failed to do so eventually. Nevertheless Google developed its own similar platform to be used in Android, Dalvik, which consisted of over 160 APIs, of which 37 corresponded to the Java APIs in contention; something which Google had copied verbatim into its own code. Oracle subsequently took Google to court over copyright infringement, and in a decision by the District Court of California some two years ago the court saw that APIs were not copyrightable. Oracle appealed the decision, which ended up in the Court of Appeals last year.

Many developers' thoughts after the decision 

Under the 'merge' doctrine, if there is only a finite amount of ways through which an idea can be expressed it is said to 'merge' the idea-expression doctrine, or in other words, prevents copyright from protecting the expression as part and parcel to the idea. Should there only be a single way to implement said idea no copyright protection will be given to the merged idea. The District Court initially saw that Oracle could not protect its APIs as their expression was the idea, and could not be protected. On appeal the Court of Appeal saw different, deciding that the copied code could have been implemented in unlimited ways, not limiting the expression of the idea and warranting copyrightability. The declaration of the source code by Oracle therefore does not preclude its copyrightability, as was seen by the District Court initially. Even if the code consists of short phrases or sentences, i.e. lines of code, it does not preclude copyright protection.

Should the disputed APIs be merely a system or a method of operation, they cannot be protected under copyright. A myriad of cases have stated that programs and code cannot be protected by copyright; however the approach by the District Court was seen as being erroneous. Under the Court of Appeals' decision even though computer programs contain functional elements it does not fully leave out the possibility that they may contain elements which are protected by copyright. This does not completely cover the effect of the program, but merely the expression within that code for that function. Should Google have implemented that very function through a different expression, there would be no risk of infringement.

Google's last argument was for interoperability, in that the verbatim copying of Oracle's code was essential for the interoperability of Java and Android, initially supported by the District Court. However, the Court of Appeals saw differently, as precedent heavily approached interoperability as a fair use right, not as a requirement for copyrightability. This gave the final blow to Google's argument in the appeal case, with the Court of Appeals fully rejecting the District Court's initial decision and deciding that APIs could be protected by copyright.

Needless to say this decision has created quite the fervor and will undoubtedly be appealed on Google's part. The precedent set can be argued to be dangerous, and present a hurdle for the free development of technology, at least on the programming side. As more and more programs have to be able to interact with each other for a convenient, practical and fast experience for the consumer, locking down APIs can hinder this development quite significantly. Developers could be cherry-picked or even prevented from using certain APIs or even charged exorbitant amounts for their use; however this is pure speculation. Whether the case goes further will remain to be seen, and will set an interesting cloud over the programming sphere for the time being.

Source: Ars Technica

Goliath triumphs over David - US Supreme Court upholds Monsanto's rights on their seeds

In true David vs Goliath fashion, Monsanto, a multinational biotechnology company, took on a farmer over the use of their patented soybean seed some 5 years ago. The legal saga has come further than anyone expected, reaching as far as the steps of the US Supreme Court late last year. The Court released its decision only some days ago, yielding an interesting, albeit not surprising result.

The case of Bowman v Monsanto Co concerned Mr. Bowman, having purchased and used Monsanto's gene manipulated seeds from a certified vendor, much like many of his peers. The seeds themselves were altered to be pesticide resistant, giving farmers the ability to plant their crops and protect them from the bug scourge that wreaks havoc amidst fields all over the world (scenario slightly exaggerated here). One caveat in the purchase of Monsanto's seed is that they can only be used for one planting cycle; that is that any seeds from the harvested crop cannot be used to plant another cycle and the farmer has to buy yet another batch, thus preventing the self-growing of plantable seeds by farmers, retaining Monsanto's monopoly over that particular seed. Mr. Bowman had fully complied with all terms set by the company in his operations, but wished to lower his costs and bought his seed from a grain elevator, ones meant for consumption and not planting. Some of these seeds contained the alteration patented by Monsanto, which Mr. Bowman used to then plant his subsequent crops once he has killed off the plants which weren't resistant to the pesticides. Once Monsanto discovered Mr. Bowman's actions, the company proceeded to sue him for patent infringement.

Terrifying - from a farmer's perspective

In their decision the Court was unanimous, showing a clear stance as to where the law stands today. In his argument Mr. Bowman relied on the doctrine of patent exhaustion. This effectively means that once a patented item has been legally sold, the person who's bought that particular item can sell or dispose of it as they wish, much like with any item they legally purchase. Once the patented item has been legally sold, the patent rights in that particular item end, or are exhausted, preventing the patent holder from controlling it post-purchase. Because the doctrine relates to a "particular article" the person who's bought the item has no right to make copies of that item - in this case creating new plantable seeds. There is no exhaustion if new copies are made, resulting in Mr. Bowman infringing Monsanto's patent. Having bought the seeds from a grain elevator didn't help his cause either, making his claim over exhaustion all the more dubious. As stated the appeal was unanimously dismissed.

You have to accept that the Supreme Court was perfectly right in their decision, and the unanimity further highlights this. As Justice Kagan stated in the Court's decision, should the exception have been accepted "...patents on seeds would retain little value." Clearly this would decimate any patents related to seeds, and once planted and used over and over, possibly even resold to other farmers, the patents would be completely worthless. The decision was one of common sense.

Source: GEN

The First Sale Doctrine takes a hit - you can't resell digital music

The anticipation of whether the Kirtsaeng v John Wiley and Sons would change the way in which we're allowed to resell our legally purchased goods (discussed on this very blog here) was huge, both in the legal world, and in the minds of consumers just aching to sell off that CD collection bought in Europe. Well, it looks like we've taken the first step towards the limitations of the First Sale doctrine.

A US Federal Court handed down its judgment in the case of Capitol Records v ReDigi Inc at the end of last month. The case concerned the resale of digital music bought on iTunes or other digital marketplaces through the service offered by ReDigi, where users could sell their legally acquired smash hits to others who are looking for said music - much like a digital flea market if you will. The company was then sued by Capitol Records for copyright infringement.

The case in itself presents and interesting view of whether the First Sale doctrine could be applied in a digital world. Kirtsaeng dealt with the resale of physical goods, i.e. books, whereas the resale of digital goods would require the transfer of a new copy from the original music file through ReDigi's service. This is the reason which felled ReDigi's argument in the eyes of the court. The US Copyright Act  mentions a 'specific' phonographic record (a fancy way of saying a music recording), and making a copy from the original would not be within the remit of the doctrine. In ReDigi's defense they did argue that "technological change has rendered its literal terms ambiguous...", which in this writer's mind would be a valid point. If the copy could be traced to a legitimate copy, that should surely allow for it to be sold regardless of it being in a physical medium or not. Alas ReDigi's argument was rejected, and from a lawyer's perspective that holds to be true. The Court further noted a provision in the Digital Millenium Act which effectively prevents the redistribution of digital works. The Judiciary is not in the place to change laws, but to merely interpret them, and the approach taken by the Federal Court seems to be right in this case.

Spending all that money on vinyl finally paid off!

Here the law perfectly illustrates its dated approach to copyright law, having been enacted well before a time where such transfers of music or any other digital medium were even possible. Discussion in most common law countries over needed changes to the law, as noted on this blog as well, has been very active in the last few years, and cases such as this do highlight this fact very well. Should we be able to sell the goods we legally buy regardless of their tangible or intangible nature? Of course, especially when more and more music is being sold digitally than ever before. As it has been said before the gauntlet has been thrown to the legislatures of most common law countries to modernize their approach to copyright in current times. Whether they will act on this call to action remains to be seen, but as more and more commercial interests shift to the digital arena, the pressure for them to act will grow and change should come.

Retrospective - Stop your downloading! The liability of ISPs in Australia

The advent of fast Internet connections and the abundance of copyrighted material on offer through various channels and consumer's taking full advantage of both in getting their media fix. Content is available through legitimate means, for example iTunes or other online distributors, or through streaming services such as Netflix. However the flip-side of the coin is thought to be darker; downloading of music illegally, the streaming of movies and TV, all presenting an issue in themselves. The question often raised by both rights holders and the legislature is; "who is responsible for all of this?!" At the core of it, the choice to illegally download material is one which the consumer (yes, you) makes, and supervision is purely on the legislature to ensure it stays on top of the alleged infringements. But what if responsibility is passed on, not to the person infringing, but the entity providing them the service? To understand the relationship between an infringer and an ISP (Internet Service Provider) when it comes to copyright, let me give you an analogy. Should the entity providing the roads where we drive on be responsible for the misuses of those roads (owned by a company in this example)? The roads would presumable be intended for all who follow the laws and rules related to driving on the road, yet there still are people who drive over the speed limit or under the influence of substances. Should the company providing the roads be liable for the drivers’ potential infringement of those rules? The issue of responsibility came up in the High Court of Australia in the Roadshow Films Pty Ltd & Others v iiNet Ltd case back in 2012.

"Can't see any infringements here, Dave"

Under the Copyright Act 1968 in Australia, section 101 sets out that an entity 'authorizing' an infringement of copyright would be liable in their own right, depending on a number of variables. The degree of control they have over the user in preventing their act; the nature of their relationship; and whether they took any action to stop or avoid the infringement by the user. Purely looking at the legislation you could imagine ISPs being in hot water. Due to ISPs controlling an individual's access to the Internet, you could imagine shutting down their illegal use of that service would be simple? Not so much. The sheer amount of subscribers makes monitoring the network usage a massive endeavor, and from the get-go, should ISPs even control what we do on the Internet? After all, that could be an infringement of their freedom of speech. No laws state any liability for ISPs currently, making their responsibility for our actions farfetched at best. Also with a lack of any guidelines adopted by all ISPs, the user could simply switch to another provider without any ramifications, avoiding his ban on his illegal use.

The High Court quickly dismissed iiNet's liability, due to the nature of their relationship with their subscribers. An ISP hardly can control the decisions its subscribers make, nor can they change or control the software which they use to attain or upload any infringing material. The Court also agreed with my earlier notion of the amount of subscribers, as overseeing thousands of users on a daily basis would be near impossible. One judge however did not see it the way the majority did (Justice Jagot) and stated in her opinion that iiNet's effectively approved the infringements of their users through their indifference. I for one cannot understand how her Honor could equate the relationship between an ISP and a single user of its network from thousands to effectively that of a parent ignoring its child's bad behavior. The High Court subsequently dismissed Roadshow Films' appeal.

Post-iiNet reaction from a network administrator

When wondering how the dynamic of an ISP and a user would have changed, if the High Court would have seen things much like Justice Jagot, the nature of the Internet could have been completely changed in Australia. Presuming ISPs would need to monitor and control all of their users’ traffic and web activities would have turned the Internet from a bastion of freedom of sharing, expression and connectivity, to an ultra-controlled authoritarian network, much like that in China where information is filtered and fully controlled. The freedom of the Internet is built on the ability to utilize it as one sees fit, and pay for any consequences that might come from their use. There have been talks about imposing further liability, yet with the European Union stepping back from such legislation, the Internet should remain the same, at least for now.

You bought it, you own it - The First Sale doctrine in the US Supreme Court

The American Supreme Court delivered its judgment a few days ago on a case which was long anticipated to possibly change the landscape where copyright exists, both in the US and globally. And it possibly might have done just that.

Kirtsaeng v John Wiley & Sons set an interesting precedent in the world of reselling a copyright work you have legally purchased, once you're done with the item. The case itself dealt with the resale of College textbooks by Mr. Kirtsaeng, which he brought over from Thailand, having been sold there for significantly less than in the US, making this the perfect opportunity for him to make a quick buck, while retaining the moral high-ground of helping his fellow students saving said buck (to use on nice things, I'm sure).

In previous years, had you done just what Mr. Kirtsaeng did, you would've been sued for copyright infringement the moment you brought the books over into the US and attempted to sell them. How was this allowed, even if you legally bought the books and merely brought them over to sell what's yours? This is due to the interpretation of the First Sale doctrine in the US Copyright Act under section 109, which states that: "the owner of a particular copy [of a copyrighted work]... lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy..." When looking at the language of the section in itself, one cannot understand why it would act exactly against what it plainly says; that a person can sell what he has legally purchased without asking the copyright holder's for permission to do so. The interpretation of the section limiting it only to copies bought within the US was yet another Supreme Court statement in a different case, Quality King v L’Anza Research International. In the case the Supreme Court found that the definition of section 109, albeit stated purely as dicta (a legal term meaning it was not a matter contended in the case itself, but is merely a statement of opinion as to what the law is, making it non-biding in future cases, but can be used as a persuasive argument), that it would prevent the sale of copies in the US bought outside of the US itself. This definition has since been used to do exactly what Mr. Kirtsaeng contended. The outcome allows a person to sell what's rightfully theirs, even if it was bought outside of the US (though the copy has to be a legally made one, authorized by the copyright holder - I'm looking at you, bootleg CDs, videos and the like!).

These kids paid nothing for their books

So what does this mean for the consumer or the media industry? It will remain to be seen. Whether it will change the pricing dynamic in the US, bringing prices more closer to foreign ones if cheaper, is something that only time will tell. Will consumers take this and run with it? Will companies act preemptively to undercut their own prices to match those in cheaper countries? Personally I can't really say. With college textbook prices increasing over 600% since the 1990s, one can only hope the benefit will be to the end consumer, even in other categories of media.