API Copyright Heading To The Supreme Court
17 Nov 2019
I received an email this last Friday that the Supreme Court agreed to hear the case on the freedom to reimplement APIs, as well as reconsider the copyrightability of APIs, and whether their reimplementation constitutes fair use. I’ve been a signer on two briefs as well as supporter of the case since 2012, and to help fire up my imagination and storytelling around why APIs should NOT be copyrightable, I wanted to revisit some of my storytelling over the years, and brainstorm some possible new arguments that might help in this latest wave of litigation.
Here are just a sampling of the stories I have written over the years:
- May 2012 - APIs Have Been Copyrightable for 22 Years
- November 2012 - Help EFF Make Case For No Copyight on APIs
- June 2013 - Helping EFF Urge The Courts to Block Copyright Claims in Oracle v. Google API Fight
- November 2013 - Putting The Open In API With The API Commons
- November 2013 - API Commons Is More Than Just The Definition, Specification or Schema
- December 2013 - It's Between Copyright And Fair Use In Oracle vs Google API Case
- May 2014 - Where Will Your API Stand In The Oracle v Google API Copyright Debate?
- May 2014 - Restaurant Menus As Analogy For API Copyright
- August 2014 - Continuing With The API Restaurant Analogy
- November 2014 - My Continued Support As Signer Of Oracle v Google Amicus Brief From EFF
- August 2015 - What We Can Do To Make A Difference In The Wake Of Oracle v Google API Copyright Case
Each time I pick up this torch I have to re-educate myself exactly what copyright is and isn’t, and build upon all my former learnings helping pour the latest batch of concrete that acts as the foundation for my belief system around API copyright, patents, trademark, and licensing. For this round, let’s once again revisit the basics, what is copyright?
Copyright is the exclusive right given to the creator of a creative work to reproduce the work, usually for a limited time. The creative work may be in a literary, artistic or musical form. Copyright is intended to protect the original expression of an idea in the form of a creative work, but not the idea itself. A copyright is subject to limitations based on public interest considerations, such as the fair use doctrine in the United States.
Some jurisdictions require "fixing" copyrighted works in a tangible form. It is often shared among multiple authors, each of whom holds a set of rights to use or license the work, and who are commonly referred to as rights holders. These rights frequently include reproduction, control over derivative works, distribution, public performance, and moral rights such as attribution.
Copyrights can be granted by public law and are in that case considered "territorial rights". This means that copyrights granted by the law of a certain state, do not extend beyond the territory of that specific jurisdiction. Copyrights of this type vary by country; many countries, and sometimes a large group of countries, have made agreements with other countries on procedures applicable when works "cross" national borders or national rights are inconsistent.
Next, let’s look at some things that are copyrightable to help us remember how copyright can be a force for good when it comes to protecting the rights of artists and creators, but also rekindle some understanding of how it can also be abused.
- Literature - Written works, especially those considered of superior or lasting artistic merit.
- Music - Wocal or instrumental sounds (or both) combined in such a way as to produce beauty of form, harmony, and expression of emotion.
- Choreography - The sequence of steps and movements in dance or figure skating, especially in a ballet or other staged dance.
- Pictures - A painting, drawing, photograph, or portrait.
- Movies - A story or event recorded by a camera as a set of moving images and shown in a theater or on television; a motion picture.
- Audio - Sound, especially when recorded, transmitted, or reproduced.
- Software - The programs and other operating information used by a computer.
- Architecture - The complex or carefully designed structure of something.
Now, let’s look at some of the things that are not copyrightable to help us remember how copyright cannot be applied, and how there are many things that just exist in the public commons for everyone to use, and should not be locked up and owned.
- Titles - The name of a book, composition, or other artistic work.
- Phrases - A small group of words standing together as a conceptual unit, typically forming a component of a clause.
- Slogans - A short and striking or memorable phrase used in advertising.
- Symbols - A mark or character used as a conventional representation of an object, function, or process, e.g. the letter or letters standing for a chemical element or a character in musical notation.
- Logos - A symbol or other design adopted by an organization to identify its products, uniform, vehicles, etc.
- Ideas - A thought or suggestion as to a possible course of action.
- Procedures - An established or official way of doing something.
- Methods - A particular form of procedure for accomplishing or approaching something, especially a systematic or established one.
- Systems - A set of things working together as parts of a mechanism or an interconnecting network
- Processes - A series of actions or steps taken in order to achieve a particular end.
- Concepts - An abstract idea; a general notion.
- Principles - A fundamental truth or proposition that serves as the foundation for a system of belief or behavior or for a chain of reasoning.
- Discoveries - The action or process of discovering or being discovered.
- Recipes - A set of instructions for preparing a particular dish, including a list of the ingredients required.
- Directories - A book listing individuals or organizations alphabetically or thematically with details such as names, addresses, and telephone numbers.
- Domains - An identification string that defines a realm of administrative autonomy, authority or control within the Internet
- Fashion - A popular trend, especially in styles of dress and ornament or manners of behavior.
- Facts - A thing that is known or proved to be true.
- Forms - A printed (or digital) document with blank spaces for information to be inserted.
One other thing to remember with copyright is that something has to be fixed, realized, implemented, and tangible to be copyrighted. You can't just copyright the idea of your API. However, according to the current state of litigation when it comes to Oracle vs. Google, the naming and order of your API is copyrightable, and even more scarier that fair use may not even apply in this world Oracle is despreately trying to define for all of us.
Ok, let’s look at some of the core arguments I’ve made in the past that have helped define this conversation for me. Helping me understand what copyright looks like, or doesn’t look like in a digital API-driven world.
- Cloud - The cloud as a concept would not have existed if Amazon had asserted copyright over the storage, compute, and other architectural components they were releasing as APIs. Competing services and tooling vendors were free to emulate AWS in their operations, streamline integration and encouraging interoperability at a time that cloud was defining itself.
- Competition - I use the Pinboard social bookamrking API as a solid example of why API copyright matters, because Pinboard expressly copied the entire delicious bookarking API, which allowed Pinboard customers and application developers to seamlessly switch with each round of acquisitions of the formerly popular platform that send into motion much of the social elements of the web we now take for granted.
- Menu - APIs are just a menu to the digital resources your technology restaurant is serving up. Making it clear that the value of your organizations does not lie in the naming and ordering of how your customers, or competitions customers purchase products and services, but it is about the quality of your ingredients and the service you offer—essentially, you don’t hide your menus behind the counter, and you don’t sue your competition because they have burgers on their menu too.
I’d say that these were three core arguments I’ve made so far. I’ve made some other weaker ones, but after revisiting I think this represents the cream on the top of what I’ve been arguing. Going into 2020 I’d like help craft some new arguments, rooting in what we are know about copyright law and real world, but work harder to apply it to this very abstract world we find ouirselves living in--which is being defined by APIs.
- Directories - APIs are just a directory of your organizational digital capabilities and often times Human Resources. Saying that business directories and phone books in the digital age are copyrightable just does not make pass muster.
- Forms - Most APIs are literally just digital forms. Providing you with a set of key / value pairs that you submit as part of the path, parameters, headers, and body of each API request, digitally filling out forms and submitting them too platforms.
- Domains - Much of my thinking is very web API centric, where Oracle v Google is a language API, but I feel pretty strongly that web APIs matter to this discussion, and the notion that part of the API is just addressing for the web is important.
- Recipes - All of our APIs are just recipes for cooking up some digital dish. Unless you have some amazing narrative around your API telling how your grandma used to cook up API dishes during the war in rural Appalachia, then I’m guessing it isn’t copyrightable.
I think that gives us four new ways to look at why APIs are not copyrightable. They are directories, forms, and recipes that operate in the online domain. However, to push my storytelling around APIs I wanted to lookout it from the other side. How do APIs size up against existing notions about what can be copyrighted.
- Literature - I could probably craft a pretty interested Postman collection for an API, or series of APIs that dovetails pretty nicely with a creative and original narrative, providing some pretty interactive experience, but 99% of APIs are NOT this.
- Music - There are plenty of music APIs, but an API is not on the same level as music when it comes to inspiration, creativity, and expression--sorry.
- Choreography - Ok, again I could see some pretty creative and expressive choreographies and orchestrations be crated using one or many APIs that might rise to the occasion, but naming your API tooling “choreography” or “orchestration”, doesn’t make them so.
- Pictures - I don’t have many API pictures in my portfolio.
- Movies - I don’t have many API movies in my catalog.
- Audio - I don’t think any APIs have been recorded in the wild.
- Software - Ok, APIs are software right. NO. We are talking about the copyrighting of the “interface”, not your software. Your API is not the code behind, it is the portion you are asking everyone to put into their system.
- Architecture - Similar to software, the interface for your architecture is not the entirety of your architecture. Also, I believe this is purely a more tangible form of architecture, not the many ways in which us in the tech space have co-opted terms for our use.
The key thing to remember when it comes to API copyright is that this is about creativity and expression. I know that most technical folks within startups and the enterprise feel like their APIs are creative, original, and a form of expression, but sadly they are largely not. This is more about our lack of exposure to the humanities, than it is about beliefs in intellectual property. I’m pretty confident that I could craft an API that was creative and interesting enough, that was wrapped in an original narrative, and presented in such a way that it MIGHT warrant having copyright applied—if that was your thing. I could see if Twitter’s API design creatively mapped to their earlier field guide style API documentation, that it may begin to approach creative and expressive territory. But, the interfaces we are defining, designing, delivering, and supporting for use across desktop, web, mobile, device, and network applications are not creative expressions. Sorry, they aren't. That is too low of a bar, we can do better.
The Reductive Qualities of API Transactions
APIs are all about reducing something to a transaction, a search of a directory, retrieving of an a one or more ingredients within a recipe, or simple posting of a digital form. APIs are formulaic and work with words, data, and facts to provide access to digital resources using common standards and protocols. We rarely “create” APIs out of our imaginations, we assemble or generate them from known constructs—our IDE, OpenAPI definitions, HTTP, and other protocols, services, and tooling define what and how we can assemble. Crafting of your API path or operation name is no more copyrightable that the domain that precedes it when implementing as a web API—it is just another dimension of the public domain name system (DNS) you are employing to make the directory of your digital resources more accessible. The variables, parameters, and keys that you employ as part of your API design are just the existing building blocks of your directories, forms, and digital recipes--they aren’t poetry.
I am not saying that APIs can’t take a lead role in defining a copyrighted piece of work, patent filing, or trademark. I am saying that the API isn’t the intellectual property you should be holding back. It is the menu, form, directory, and recipe for the thing you are holding back as part of your intellectual property—if that is your jam. The problem is that most business people, and most technical stakeholders do not see the separation between backend data, content, media, and algorithms, and the interface you provide for accessing them. Apply the proper licensing to your data, content, media, and algorithms, and even the code and infrastructure delivery mechanisms behind, but don’t introduce additional transactional friction at the interface layer. Don’t make your consumers ask for a license to see and use your menu, recipe, directory, or forms involved with obtaining access to your products and services.
In the end, I see this as a shortcoming of business and technology people to be able to separate the front-end from the backend of the digital services we provide, as well as what is being delivered via these pipes. Sadly, it is also a shortcoming of technical folks like myself who feel that their work is more creative than it really is, allowing the companies we work for to exploit of our lack of exposure to the humanities. Finally, believing in API copyright is just part of the continued advance of intellectual property laws dictated by large corporations hoping expand the reach of their portfolios, claiming that something is creative purely so that value and scarcity can be applied to it, actively reducing meaningful forms of creativity, expression, and art down to a transaction so that they too can be co-opted and added to the corporate intellectual property portfolio—which has nothing to do with protecting the rights of creators and artists.