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.”

For a simpler example of this principle, consult your kitchen. The directions in a recipe are not copyrightable, while its lavishly written food-porn introduction is.


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.

If you think this would only trip up those in the computing professions, you’re wrong. Grimmelmann noted that even universal remotes could flunk the court’s new test.

Not every company would greedily apply the new rules. But there are enough control freaks in the industry that the expenses to negotiate or litigate licenses would add up. “The transaction cost of requiring all that permission is pretty crazy,” Ahrens said.

Friday’s ruling fits into this court’s history of inflationary intellectual property. In perhaps its worst moment, this court conjured “business method” patents into existence in a radioactive 1998 ruling that let patent trolls pretend that putting an ordinary transaction like an auction on the Internet made it a novel invention. In other cases it’s made it easier to pursue an infringement claim and harder to defend against one.

The Supreme Court has noticed and hit “Undo” in a series of unanimous reversals of this court — it even had to correct the CAFC over the definition of “non-obvious” at the core of patent law — but the CAFC hasn’t quite taken the hint.

Creeping copyright
Congress could take away the CAFC’s monopoly over patent fights that get appealed from lower courts. But Congress doesn’t mind making up intellectual property either.

This is the body that’s repeatedly extended copyright terms — retroactively. The original 14-year term now runs to the life of the author plus 70 years. Dead artists may someday be motivated to write from beyond the grave, but meanwhile living ones lose the chance to remix and build on what’s been done before.

Imagining intellectual property into existence is a kind of magic — at best, the constructive magic outlined in the Constitution. But when it rewards people for what they have already done, it represents an extraordinary transfer of wealth by the government to private companies.

If we saw that handout done through bags of cash or corruptly awarded contracts, we’d be in the streets with pitchforks. But when it’s executed via the arcane mechanics of intellectual-property law … it can work so well, somebody might want to file for a patent on it.

Email Rob at; follow him on Twitter at @robpegoraro.