APIs should not be copyrightable

Last month, the Electronic Frontier Foundation (EFF) filed an amicus brief with the Supreme Court of the United States, asking the justices to review an earlier lower court decision that allows APIs (Application Programming Interfaces) to be copyrightable. I'm one of the 77 software professionals who signed the brief, although rather intimidated by a group that includes Abelson & Sussman, Aho & Ullman, Josh Bloch, Fred Brooks, Vint Cerf, Peter Deutsch, Mitch Kapor, Alan Kay, Brian Kernighan, Barbara Liskov, Guido van Rossum, Bruce Schneier, and Ken Thompson.

The original lawsuit was brought by Oracle against Google, claiming that Oracle held a copyright on the Java APIs, and that Google infringed these APIs when they built Android. My support in this brief has nothing to do with the details of the dispute between these two tech giants, but everything to do with the question of how intellectual property law should apply to software, particularly software interfaces.

I'm not part of the thinking that asserts that nothing in software should be intellectual property. While I do think that software patents are inherently broken, copyright is a good mechanism to allow software authors to have some degree of control over of what happens with their hard work.

Software has always been a tricky source of income, because it's trivial to copy. Copyright provides a legal basis to control at least some copying. Without something like this, it becomes very hard for someone to work on creating things and still be able to pay the mortgage. While we all like free stuff, I think it's only fair to give people the chance to earn a living from the work they do.

But any intellectual property mechanism has to balance this benefit with the danger that excessive intellectual property restrictions can impede further innovation, whether that be extending an invention, or reimagining a creative work. As a result, patent and copyright regimes have some form of limitation built in. One limitation is one of time: patents and copyrights expire (although the Mickey Mouse discontinuity is threatening that).

Interfaces are how things plug together. An example from the physical world is cameras with interchangeable lenses. Many camera makers don't encourage other companies to make lenses for their cameras, but such third-party companies can reverse-engineer how the interface works and build a lens that will mount on a camera. We regularly see this happen with third-party parts providers - and these third parties do a great deal to provide lower costs and features that the main company doesn't support. I used a Sigma lens with my Canon camera because Canon didn't (at the time) make an 18-200mm lens. I've bought third party batteries for cameras because they're cheaper. Similarly I've repaired my car with third party parts again to lower costs or get an audio system that better matched my needs.

Software interfaces are much the same, and the ability to extend open interfaces, or reverse-engineer interfaces, has played a big role in advancing software systems. Open interfaces were a vital part of allowing the growth of the internet, nobody has to pay a copyright licence to build a HTTP server, nor to connect to one. The growth of Unix-style operating systems relied greatly on the fact that although much of the source code for AT&T's Unix was copyrighted, the interfaces were not. This allowed offshoots such as BSD and Linux to follow Unix's interfaces, which helped these open-source systems to get traction by making it easier for programs built on top of Unix to interact with new implementations.

The story of SMB and Samba is a good example of how non-copyrightable APIs spurred competition. When Windows became a dominent desktop operating system, its SMB protocol dominated simple networks. If non-windows computers wanted to communicate effectively with the dominant windows platform, they needed to talk to SMB. Microsoft didn't provide any documentation to help competitors do this, since an inability to communicate with SMB was a barrier to their competitors. However, Andrew Tridgell was able to deduce the specification for SMB and build an implementation for Unix, called Samba. By using Samba non-windows computers could collaborate on a network, thus encouraging the competition from Mac and Linux based systems. A similar story happened years before with the IBM BIOS, which was reverse-engineered by competitors.

The power of a free-market system comes from competition, the notion that if I can find a way to bake bread that's either cheaper or tastier than my local bakers, I can start a bakery and compete with them. Over time my small bakery can grow and compete with the largest bakers. For this to work, it's vital that we construct the market so that existing players that dominate the market cannot build barriers to prevent new people coming in with innovations to reduce cost or improve quality.

Software interfaces are critical points for this with software. By keeping interfaces open, we encourage a competitive marketplace of software systems that encourage innovation to provide more features and reduce costs. Closing this off will lead to incompatible islands of computer systems, unable to communicate.

Such islands of incompatibility present a considerable barrier to new competitors, and are bad for that reason alone. But it's they are bad for users too. Users value software that can work together, and even if the various vendors of software aren't interested in communication, we should encourage other providers to step in and fill the gaps. Tying systems together requires open interfaces, so that integrators can safely implement an interface in order to create communication links. We value standard connectors in the physical world, and while software connections are often too varied for everything to be standardized, we shouldn't use copyright law to add further hurdles.

The need to implement interfaces also goes much deeper than this. As programmers we often have to implement interfaces defined outside our code base in order to do our jobs. It's common to have to modify software that was written with one library in mind to work with another - a useful way to do this is to write adapters that implement the interface of the first library by forwarding the second. Implementing interfaces is also vital in testing, as it allows you to create Test Doubles.

So for the sake of our ability to write programs properly, our users' desire to have software work together, and for society's desire for free markets that spur competition — copyright should not be used for APIs.

Addendum: The Supreme Court Decides

The case made its way to the Supreme Court, who on April 5th 2021 ruled in favor of Google. In this ruling they didn't address whether APIs were copyrightable, rather they rules that Google's action of reimplementing an API was Fair Use.

I didn't consider Fair Use in the above article, but it seems to me to be an effective way to frame the situation, and treating APIs in this way avoids the problems that stem from copyrighting APIs.

The four page summary at the beginning of the opinion is a pretty clear explanation of the logic of the argument.

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