On 13/05/14 10:47, Neil Brown wrote:
I am afraid that I have not yet had a chance to get to grips with the Oracle v.
Google case, but you might find the discussion before the High Court, and the
Court of Appeal, in the SAS v. WPL case in the UK, to be of interest, along
with the reference for the Court of Justice of the European Union, in
interpreting the computer programs directive:
High Court: http://www.bailii.org/ew/cases/EWHC/Ch/2013/69.html
CJEU reference:
http://curia.europa.eu/juris/document/document.jsf?docid=122362&doclang=EN
Court of Appeal: http://www.bailii.org/ew/cases/EWCA/Civ/2013/1482.html
Neil, those links are just what I was hoping for, so thank-you.
I wrote regarding Article 6 2.(c) and reverse-engineering:
In other words I read this as saying it is legal to use reverse-engineered
interface specifications of a 'server'
in order to create a 'client', but not to create another 'server'
implementation, nor to publish
documentation of the interface.
The EUCJ deals with this in paragraphs 60 and 61:
"60. As regards that latter condition, Article 6(2)(c) of Directive 91/250 relating to decompilation states that decompilation does not permit the information obtained through its application to be
used for the development, production or marketing of a computer program substantially similar in its expression, or for any other act which infringes copyright."
61. It must therefore be held that the copyright in a computer program cannot be infringed where, as in the present case, the lawful acquirer of the licence did not have access to the source code of
the computer program to which that licence relates, but merely studied, observed and tested that program in order to reproduce its functionality in a second program."
So the EUCJ is saying you cannot reverse-engineer a computer program in order to create a functionally compatible alternative, but you can create a functionally compatible alternative by studying the
program's interaction with other programs, data files, users, other programs and other systems.
THE EUCJ didn't deal explicitly with API interfaces but on my reading it
addressed it tangentially in its answers to Arnold J's questions 1 to 5 and 8
to 9.
In the context of format of data files it said:
"43. In that context, it should be made clear that, if a third party were to procure the part of the source code or the object code relating to the programming language or to the format of data files
used in a computer program, and if that party were to create, with the aid of that code, similar elements in its own computer program, that conduct would be liable to constitute partial reproduction
within the meaning of Article 4(a) of Directive 91/250."
I take "liable to constitute partial reproduction" to mean, it would infringe.
In the context of discussing the use of the original program's user manual
being used by the defendant as a specification for writing its alternative
implementation, the court said:
"70. Consequently, in the light of the foregoing considerations, the answer to Questions 8 and 9 is that Article 2(a) of Directive 2001/29 must be interpreted as meaning that the reproduction, in a
computer program or a user manual for that program, of certain elements described in the user manual for another computer program protected by copyright is capable of constituting an infringement of
the copyright in the latter manual if—this being a matter for the national court to ascertain—that reproduction constitutes the expression of the intellectual creation of the author of the user manual
for the computer program protected by copyright."
I parse that as saying that Program A and User Manual A have copyright protection if they are expressions of Author A's intellectual creation. That being the case, if Author B creates a (functionally
compatible) Program B and/or a User Manual B based on a reading of User Manual A, then either or both of Program B and User Manual B may infringe on the copyright in User Manual A.
Arnold J interprets the EUCJ in the following terms in paragraph 16:
"In my judgment, the CJEU's answer to Questions 1-5 amounts to an endorsement of Pumfrey J's interpretation of Article 1(2) of the Software Directive. In short, copyright in a computer program does
not protect either the programming language in which it is written or its interfaces (specifically, its data file formats) or its functionality from being copied. ..."
He goes into more detail in later paragraphs under the heading "SAS data file formats" and much of that is detailing that the plaintiff failed to raise amended issues early enough and therefore cannot
do it now so avoids any detailed investigation in respect of data file formats.
He concludes that defendants did not infringe on the plaintiff's copyright in
User Manual A but not for the obvious reason:
"53. I remain of the view that, for the reasons I gave in my first judgment, the answer to this question is no. In so far as counsel for SAS Institute argued that WPL had reproduced compilations of
(i) formulae, (ii) keywords, (iii) default values, (iv) comments and (v) optimisations from the SAS Manuals, I would repeat the answers I gave at [260]-[261], and in particular the first one. The
authors of the SAS Manuals did not create such compilations, the authors of the SAS System did."
In other words, User Manual A did not contain a copyrightable compilation, it contained descriptions of the functionality, and therefore no copyright infringement could occur in using User Manual A to
create User Program B or User Manual B.
I noticed a factual error in the appeals court's judgment which just goes to show how easy it is for appeals courts to make mistakes even with their tight focus. I bring this up since it seems the
U.S.A. appeal court did the same thing in Oracle vs Google (in translating Google's 'admission' that they copied the APIs into "verbatim copying" e.g. cut-and-paste). In the U.K. appeal Lewison LJ writes:
"There is no dispute that each of the SAS Components is an original computer program in which copyright subsists. ... Equally, however, it is common ground that WPL did not copy the program directly,
because it had no access to the source code or the object code. ..."
The judgement doesn't define what is meant by "object code" but the accepted meaning is the compiled binary form of the program that the microprocessor executes, and WPL did have that (the SAS
"Learning Edition"); they loaded and executed it in order to study its operation and Lewison LJ goes on to describe that in later paragraphs.
Although there is no discussion of APIs there is discussion of "Ideas vs expression of ideas" which is at the heart of where copyright begins. It goes on to discuss "Intellectual creation" in terms of
how the functionality of a computer program cannot be protected, and gives as an example a G.U.I. that uses a pointer to interact with display elements representing buttons, menus, and so on. Although
the elements may contain (significant) intellectual creation the functional result (the user 'pressing' a button drawn on the display) is not protected.
APIs on the other hand very often represent a considerable amount of artistic
expression and are (usually) not determined by an underlying functional
requirement.
So to return to my fundamental question, is an API protected in the E.U., it seems to me that the answer is "it depends on what a judge decides" rather than "No - you can implement a copy of an API
without risk of copyright infringement".
In respect of the ramifications of the Oracle vs. Google decision, if interfaces literally cannot be protected due to being "Ideas" in the E.U. then it raises the question of whether the U.S.A.
appeals court is out of step with the WIPO Copyright treaty obligations since the U.S.A. is a signatory.
The appeal court's recitation in paragraphs 20 and 21 says that the E.U.
directive is in step with WIPO Copyright, TRIPS, and Berne convention treaties:
"20. It is a cliché of copyright law that copyright does not protect ideas: it protects the expression of ideas. But the utility of the cliché depends on how ideas are defined. This dichotomy has made
its way into international treaties and European legislation. The international treaties include the Agreement on Trade-Related Aspects of Intellectual Property Rights ("TRIPS"), article 9 (2) of
which provides:
"Copyright protection shall extend to expressions and not to ideas, procedures,
methods of operation or mathematical concepts as such."
21. Article 2 of the World Intellectual Property Organisation Copyright Treaty
("WIPO") is to the same effect. Both these treaties are part of the international
legal order of the European Union."
