How the Government Can Improve Tech: Stop Reinventing Intellectual Property
A court ruling Friday redefined who owns a technical part of Android that no user ever sees. But it could have a chilling effect on the technology we do.
Friday’s unanimous ruling by a three-judge panel on the Court of Appeals for the Federal Circuit about Google’s recycling parts of Oracle’s Java software could make a wide variety of innovation expensive or illegal. The ruling fits into a long and unhelpful history of the government creating “intellectual property” where such property didn’t previously exist — and where it’s not needed.
“Intellectual property” is the catchall phrase for patents, copyrights, and trademarks: the legal frameworks that stop people from using other peoples’ ideas and inventions. Unlike ownership rights for physical property, most intellectual property rights eventually expire.
Imagining intellectual property
In the case of patents (which cover inventions) and copyrights (for creative works), the Constitution makes it clear how made-up they both are: They exist only as a way for Congress to “promote the Progress of Science and useful Arts” — to benefit everybody else, not because the Founders thought inventors or creators had some inalienable right to get paid for every use of their ideas.
In Friday’s case, the court overruled appeals court judge William Alsup’s 2012 ruling that had seemingly ended a long battle between the two tech giants over how much Google’s Android operating system relied on Oracle’s Java language.
Alsup said Google could copy some lines of code when writing parts of Android to accommodate Java apps because you can’t copyright an application programming interface.
An API is how one computer program talks to another, a connector that lives in lines of code. Alsup — who has written software before and took the time to learn some Java during the trial — held that this makes an API a “utilitarian and functional set of symbols.” It’s a tool that must exist for the sake of the rest of the software.
You need this for different programs to work together, said Julie Ahrens, director of Copyright and Fair Use at Stanford Law School’s Center for Internet and Society: “It’s almost like the alphabet or vocabulary.”
But this idea doesn’t mean all software should exist in a copyright-free void.
“An API is … a precise statement of how to ask a program to do something,” wrote University of Maryland law professor (and occasional coder) James Grimmelmann. “The program itself is a programmer’s expression of the idea: That’s copyrightable.”
Innovation by permission
The new CAFC recipe for technology isn’t very appetizing. Under it, people who want to make X work with Y by writing code that clones the capabilities of an API would need to ask permission first.