Against Defibrillating the API Copyright Dead : A Response to Advocates of Copyrightability of Software Functional Specifications

In Rise of the API Copyright Dead? An Updated Epitaph for Copyright Protection of Network and Functional Features of Computer Software, I analyzed and critiqued the Federal Circuit’s 2014 ruling in Oracle v. Google that revives the flawed and long-dormant Whelan framework for analyzing the scope of copyright protection for computer software. In this response to critics of that article, I show that defenders of the Federal Circuit’s ruling misapprehend the Supreme Court’s seminal Baker v. Selden decision, misread the Ninth Circuit’s Sega v. Accolade decision, and misunderstand how copyright protection fits into the larger intellectual property landscape. By devising application program interface (API) packages for the Java platform, Sun Microsystems effectuated machines that respond to particular inputs and produce particular outputs. In so doing, Sun moved the creative names and essential structures for these packages outside of copyrightability, thereby enabling others (in the absence of utility patents covering these processes and machine) to emulate (and interoperate with) these machines so long as they write their own implementation. In this way, copyright stands in the way of pirating and afforded Sun valuable lead-time, while promoting competition and cumulative creativity. Furthermore, this reading of copyright protection appropriately channels technological advances in processes and machines into the utility patent system, which is better calibrated (with higher validity thresholds and shorter duration) to promote technological advance