Developers at Roundtable Ask, ‘Are APIs Copyrightable?’

Graeme Thickins, Freelance Technology Writer, www.GraemeThickins.com
May. 21 2014, 02:37PM EDT

To say the copyright issue continues to be hot topic of conversation in the API community is an understatement. As expected, it was at the top of the list of topics for roundtable discussion at the API Strategy & Practice Unconference on May 20 in Broomfield, Colorado.
 
As ProgrammableWeb reported a week ago, “In essentially ruling that APIs can be copyrighted, the U.S. Appellate Court may have opened a legal Pandora's Box the likes of which the technology industry has never seen.” (More coverage and analysis here.)
 
It’s about Java APIs, not web APIs — at least not yet — but the question of whether a set of rules can be copyrightable is the essence of the issue. Kin Lane of API Evangelist, one of the organizers of the Unconference, kicked off the discussion with a question: “How can we have a discussion if we don’t have definitions?” API Commons, an initiative he announced last year, attempts to do that. “If documentation can be Creative Commons, does that mean APIs can be, too?” Early in the discussion, Lane said he thinks Google should be at the top of this discussion: “Will they lead?”
 
Matthew Reinbold, an independent API developer, noted that Pearson, the textbook publisher, fought a copyright battle similar to this. But software isn’t like books, said Lorinda Brandon of SmartBear Software. “At some point, when do we say that software is the real world?” It’s not a matter of chapters and tables of content, as referenced in the Oracle court case, she maintains. “But hasn’t software always been about abstractions like that — files, folders and the like?” asked Reinbold.
 
Steve Willmott of 3scale, the other co-organizer of the Unconference, set expectations early in the discussion. “We will not be in a world where no one will ever copyright.” Nonetheless, we must develop best practices first, then licensing, said Lane. “And it will be different for each industry.” He gave an example of the real estate industry, where a few players dominate or control much of the data, unlike many other sectors.

“What happens if you don’t copyright first, and it becomes really popular — like Amazon S3?” asked Lane. On the other hand, noted Reinbold, “What’s to stop someone from copyrighting API documentation, and then having nothing behind it?”
 
A key point Willmott inserted from a legal standpoint in his mind: “The notion of ‘similarity’ is different for an API than for a creative work.” Or it should be.
 

Get ’Em While They’re Young

Lane sees API Commons as an answer. A strategy he’s pursuing is to “get APIs into it early” —
as in startups, for example — “before people would copyright them.” That is, before they become popular. “Creative Commons and API Commons will be our first line of defense.” Noncopyrighted case histories Lane provided in an amicus brief he filed with the Electronic Frontier Foundation include Amazon Cloud and Instagram. (See his API Evangelist blog here.)
 
A company that has already stepped up in the copyright issue, as ProgrammableWeb has previously reported, is Rackspace. “They said they would never enforce copyrights on their APIs,” said Willmott.
 

Do Enough People Care or Understand?

Is the copyright question really being talked about all that much? “I’m worried that 90 percent of this issue will go right over the heads of most people developing or using APIs,” said Reinbold.
 
Speaking of the great unwashed masses, Lane said he can’t believe how many people emulate the Twitter API. A goal of his is that people will first go to API Commons to “get up to speed on what’s out there and realize the legal ramifications.” There are many cases where companies completely rip off an API, Willmott added.
 
Many people may think that slapping a copyright symbol in a footnote at the bottom of a website somehow covers everything, including all the code used. “But that doesn’t mean it’s all enforceable,” said Willmott. “Legal questions are really difficult. But at the end of the day, it’s, do you have the money to fight?” Said one independent developer at the table: “I sure don’t.”
 
Willmott summarized his view: “It has to be not the right thing to do to enforce copyrights. Developers need to vote with their feet.” Will Google win in the end? He’s not sure, but, whatever. “It will be the biggest copyright case ever.” His one hope: “We just have to stop it from damaging our basic building blocks, or API design will suffer.”
 
Lane wants developers to think, “I want to know how good my design is, to get quality feedback,” via the API Commons initiative. “It’s a matter of education, understanding the definitions and conventions.”
 
Another active participant in the roundtable, SmartBear’s Brandon, raised a significant point near the end of the hourlong discussion: “How you execute certain software concepts is the issue,” she said. “The current legal system doesn’t understand this.” She also announced a webinar her firm is sponsoring on June 4 in which two notable lawyers will debate the API copyright question. Here’s the link.

Graeme Thickins An independent technology writer, analyst, and consultant for more than 25 years. Since 2005, Graeme has written his own blog (Graeme Thickins On Tech) about startups, tech trends, innovation, cloud computing, mobile, venture investing, and all things web. He reports several times a year from technology conferences, and often interviews industry leaders.

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