With the exception of Oracle and its stockholders, the technology industry's collective head exploded today when the US Appellate Court ruled that APIs are copyrightable. As a part of its findings, the court wrote "..the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection."
That conclusion does not mince words. Those of us here at ProgrammableWeb, where APIs are our life, are quite stunned by the decision. Me personally because prior to joining ProgrammableWeb, I spent a significant number of years covering the ins and outs of copyrights and patents as they pertain to technology and some of the gargantuan legal battles that have taken place in our industry.
This ruling certainly looks to be both dangerous and stifling. For decades, the efficient interoperation of pretty much everything digital (and some things analog) has involved APIs. In concluding that APIs are copyrightable, the Appellate Court sent pretty much every technology lawyer on the planet scrambling to figure out next steps. It's almost a footrace at this point. Why? The Appellate Court went on to say that "because the jury deadlocked on fair use, we remand for further consideration of Google’s fair use defense in light of this decision" and in so doing, posed a rhetorical question to every lawyer: Would you rather be the plaintiff or defendant in an API fair use case?
In remanding the question of fair use back to the Circuit Court, the Appellate Court left the definition of fair use (when it comes to APIs) completely open. A broad conclusion on fair use by the Circuit Court could, for all intents and purposes, nullify the extent to which API copyright holders should waste their time attempting to enforce their rights. Conversely, a narrow conclusion could load the Courts' dockets.
In answering the aforementioned rhetorical question, if for no other reason than defensive purposes (where having intellectual property rights helps to fend-off other infringement suits), those lawyers have little choice but to be working with their technology organizations to catalog all that's copyrightable given the new ruling. In situations such as these, having the option of a lethal offense is the best defense.
Unfortunately, there's a snowball's chance in hell that all such lawyers will be fully-satisfied with just defensive maneuvers. Some will no doubt go on offense and seek to enforce their "copyrights" through the extraction of royalties or infringement suits big enough to shut most startups down. For some plaintiffs, "shutdown" could be the objective. As I recently learned, it's nearly impossible for startups currently involved in litigation to get venture funding. If the suit has to do with IP infringement, the startup becomes the hottest of hot potatoes. Even companies that are off the runway could be in big trouble. Given the number of APIs found across its portfolio of offerings, even Oracle could find itself a victim of its own doing.
While APIs have been around for decades, the ruling is particularly troubling in the case of the sort of APIs that ProgrammableWeb has covered and catalogued since 2005; Web APIs. The reason Web APIs are particularly vulnerable is because their designs, methods, and resources are so easily discoverable. The very nature of a Web API means that it's exposed to the Web where pretty much everybody can see it. Lawyers could easily go to work with technologists to organize machines that crawl the Web, looking for API patterns that could constitute infringement (we can only hope that no one uses the API to ProgrammableWeb's API directory to assist in such an endeavor).
And therein lies one of the most troubling aspects of the Appellate Court's ruling and the halo of fair use uncertainty it created. APIs of all sorts tend to gravitate towards patterns that mimic the best practices of API provisioning while addressing the sensitivities of developers. The notion that the re-use of time tested patterns could result in a copyright infringement suit offends the sensibilities and camaraderie of those of us in the API economy. We've evolved those patterns together, as a community. If one, or three, or five years from now, the tens of thousands or millions of APIs on the Web must defy the expectations of developers in order to create a legal shield, innovation will have been thoroughly stifled.
This battle is long from over. In the mean time, we at ProgramambleWeb can only hope that all players big and small in the API economy refrain from staking an offensive position that would hasten progress and growth in one of technology's hottest and most promising sectors.