For example, take the Java package java.io used for reading/writing files among other things. How can you construct an argument that the structure of the API itself should be copyrightable? And what would be an example of an API that couldn't be copyrighted for that matter?
In the Ninth Circuit, however, the same Johnson Controls case that held that the components of a computer program are to be assessed item-by-item to determine what is protectible and what is not also set forth the (judge-invented) doctrine that the structure, sequence and organization of elements in a computer program can be protected by copyright even if the discrete pieces are not in themselves expressive. Taking this as its point of departure, Oracle argues at length about all of the "expressive choices" that were made in the 166 API packages that are part of Java (and in the 37 API packages specifically at issue in this case), how they are named in special ways, how they are structured to take certain parameters and not others, how some call certain classes and methods not others, etc. Oracle further argues that Google could have achieved the same functionality that it gained from copying the APIs through "other means" such as APIs with different names and the like and that it could have done so without using the identical "sequence, structure, and organization" used in the Java APIs. It analogizes all this to a musical composition that is readily protectible under copyright even though individual notes are not.
I personally think the Oracle argument is a crock but, when you are able to devote huge resources to developing a case, when you can hire the best experts who can attest to the countless forms of "creative expression" of the type alluded to above, when you can pay the best lawyers to spin it out endlessly from every conceivable angle, you get the scary prospect of a court buying into this sort of analysis and mechanically concluding that, yes, all this is protected by copyright because it is "expressive" and not merely functional. This is why I think that the judge, who is bound to follow the Ninth Circuit precedent, will really need to dig deep to make a definitive ruling here that APIs are not protectible by copyright as a matter of law. An appeals court will have more freedom, however, and can focus on the purpose of copyright law and on why it is absurd in light of modern programming realities to give any party the power to monopolize API-style functionality in ways that will paralyze the industry. The judge is a very good judge and he may also land on the right conclusion - it is just harder for him because he is bound by some restrictive precedents.
My difficulty comes from the fact that designing a good API is hard, and I think that there clearly are creative aspects to it. Doing a good job requires having an intimate knowledge of the component being interfaced with, and how programmers are likely to use it. The mere fact that we have said before "This API sucks" implies that it is not just a mechanical process.
Basically, I want one result because I feel it's better for society. But based on first principles, that's not the conclusion I arrive at.
Section 102(b) reads as follows: "In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work."
The idea here is not to give anyone a monopoly via copyright over such fundamental concepts as ideas, etc. Things that are purely functional within systems and the like fall within 102(b) and cannot be copyrighted even if they are otherwise expressive. That is what Google is arguing about the 37 Java API packages in this case.
So did Huffman encoding. So did the Laplace transform. So did quicksort, red-black trees, and hell, even the Universal Turing Machine. These are all the result of many hours of creative endeavor, yet they are none of them copyrightable.
This is the same thing that makes Wolfram's claims of ownership of the existence of a proof of Rule 110 CAs as universal calculators particularly onerous.
This is a nice analogy. APIs are more expressive than individual notes but hardly raise themselves to the level of a fully formed composition.
Imagine a list of musical phrases. That includes scales and progressions at the simplest level and pleasing variations on those themes but not enough to form a contained composition themselves -- at most a couple of bars.
Each entry could show what scales and progressions they are derived from and even suggest which other entries, in simple combination, are common or otherwise musically sound. Let's further assume that they are given convenient names.
Would that rise to the level of copyright? If someone were to create a distinct variation on that list but slightly different for use with instruments tuned in an unusual way but used all of the same names because ultimately the way all of the phrases relate to one another is the same, would that be fair?
I haven't thought this scenario all of the way through, but it seems useful to take my familiarity with software out of the process...I have to admit, at first blush, I am a bit torn.
At least, that's my hope. The transcripts indicate that he understands the tech better than most.
I'm pretty sure that door is closed now, so I hope you're right.
David Boies has argued in Bush v Gore, defended Napster, worked for SCO in SCO v Linux, argued the recent California gay marriage law, was the council for US team in the recent America's cup case, and now he's Oracle's lawyer here (at least I see the last connection).
I can't discern a pattern to those cases other than their high profile nature. Wouldn't it make more sense to hire someone that is an expert in computer IP law for SCO, Oracle, Napster type cases, a constitutional lawyer for the Gay marriage and Gore v Bush type cases, etc. How can one guy be the go-to for so many high profile cases?
Praise of the man:
"The one talent of David's that stands out is his ability to lay out a course of action that would take into account any sort of complicated facts and develop a far-reaching scenario. It's a chess player's sense: If I do this, the following 15 things are going to happen, and if step 11 goes so, I'll do this rather than that. It's a fantastic game-playing ability." Thomas D. Barr, quoted in the New York Times Sunday Magazine, June 1, 1986
"The Boies memory is one of the first things cited when people discuss his strengths. What's most impressive about that gift -- focused as it may be by the intensified concentration that his dyslexia demands -- is Boies' uncanny ability to recall a key fact, legal citation or piece of contradictory testimony at moments of the most intense pressure." Time Magazine, "Get me Boies!" by Daniel Okrent, December 25, 2000
Boies can grab enough of the subject matter to speak to the key legal issues, and to ask experts the questions that define the boundaries around those questions. Another lawyer might know more of the subject matter, but that won't matter if they can't translate that extra knowledge into legal strategy.
Remember also that while you might be able to find legally pertinent technical responses to Boies' work in court, you're reacting to that after hearing his strategy. Good trial communication requires telling a unified narrative -- if your story doesn't already provide a basis for your response, that response will be weaker and may even distract from the story you do have. Boies' ability to anticipate arguments, mentioned by another comment, is crucial to all this -- it's not enough to have an answer, you really need to have that answer in advance of his question.
As a former litigator turned startup founder, I can attest to the difficulty of assembling the right team with the ideal point man for a trial, and when you do find one you respect, he is worth every penny. David Boies is one such man - nobody has gotten fired for hiring him as the lead trial attorney.
(IANAL but I helped AOL sue Sanford Wallace, and it was a sight to behold.)
This exchange highlights the rather unfavorable position that Oracle finds itself in on the copyright issues. It has won nothing of significance and stands to get very little from the jury on these issues. Concerning the broader claims on which the jury hung, it still faces a potent objection from Google that it cannot assert copyright violations based on the 37 API packages owing to defects in how the Java program was registered with the copyright office. It also faces the risk that the judge or a court of appeals will hold that APIs are not copyrightable.
A word on this last item: Much as the developer community believes very strongly that APIs should not be copyrightable, the Ninth Circuit law that is binding on this judge (beginning with Johnson Controls in 1989) is not particularly favorable in that it provides that software programs are to be analyzed item-by-item on the facts of each particular case to determine whether any particular component is protectible expression versus an unprotectible idea, function, system, or method of operation (this is in stark contrast to the First Circuit, which held that judges could make categorical judgments that certain components are functional by nature and hence unprotectible by copyright (as opposed to patent), as the menu structure was held to be many years ago in the Lotus/Borland case. Google is arguing the issue categorically ("APIs are inherently unprotectible under copyright law") but this makes for a tough sell in a jurisdiction where the appellate authority has said that such issues cannot be categorically determined. Google has alternative arguments, the main one tied to a leading Ninth Circuit case (Sega) that Google argues enables copying of functional elements of any program needed to ensure compatability. But, in my view, astute as this judge is, he will be bound to apply the fact-specific approach, making it tough for him to adopt Google's strongest argument and thus significantly reducing the prospects for a definitive ruling from the judge along the lines sought by Google (of course, this might come on appeal, where the court is free to reshape its earlier precedents in light of modern-day realities in the software world).