Wednesday, May 21, 2014

The Top-Down Guardian State vs. the Bottom-Up System of Democracy

David Brooks at the New York Times in The Big Debate has a seminal article on the apparent  worldwide decline of democracy since the dissolution of the Soviet Union (USSR), suggesting that top-down  systems of government by professional elites  may be better adapted to the demands of the modern era than cumbersome grass roots bottom-up amateur-studded populist democracies.
Are political, legal, economic, social and/or technological oligarchies the reigning governments of the future?

Hat tip to CaryGee.


The Copyrightability of APIs: Has the Federal Circuit Got it Wrong Again in Oracle v. Google on the issue of Java vs. Android?

The too often misguided Federal Circuit is perhaps at it again in a key case in digital technology, finding in Oracle v. Google that APIs (application programming interfaces) are entitled to copyright protection: has the Federal Circuit got it wrong again?

Let us look at the background of this case (Wikipedia):
"In 2010, Oracle sued Google for having distributed a new implementation of Java embedded in the Android operating system. Google had not acquired any permission to reproduce the Java API, although a similar permission had been given to the OpenJDK project. Judge William Alsup ruled in the Oracle v. Google case that APIs cannot be copyrighted in the U.S, and that a victory for Oracle would have widely expanded copyright protection and allowed the copyrighting of simple software commands:

To accept Oracle's claim would be to allow anyone to copyright one version of code to carry out a system of commands and thereby bar all others from writing their own different versions to carry out all or part of the same commands.
2013 saw the creation of the "API Commons" initiative.[14] API Commons is a common place to publish and share your own API specifications and data models in any format such as Swagger, API Blueprint or RAML, as well as to explore and discover the API designs of others. The API specifications and data models declared in API Commons are available publicly under the Creative Commons license."
In our opinion, the intellectual propertly law decisions of the Federal Circuit Court are often flawed from a legal point of view, so that we assume that whatever they decide, it has a good likelihood of being wrong and/or being reversed by the U.S. Supreme Court upon appeal. Indeed, we sometimes find ourselves astonished by the apparent lack of practical legal awareness that too frequently seems to surface in Federal Circuit decisions.

We refer here to our previous postings at
 and
What now do we make of Oracle America, Inc. v. Google Inc. ? a case decided by the Federal Circuit on May 9, 2014 in an opinion written by Kathleen M. O'Malley, Circuit Judge, regarding a case in which the facts are basically undisputed but the applicable law is debatable, so that Google may seek an en banc hearing or an appeal to the United States Supreme Court.

At FOSS Patents, Florian Mueller thinks the Federal Circuit got it right on the law, but we are not so sure. We do agree that software should be copyrightable, but the question at issue is the extent to which fixed modules of interface-mandatory software code should be given any copyright or other protection at all.

Since we are strict opponents of software patents, we do prefer the copyright solution in general. Software is not an "invention" per se, but merely a series of text viz. character commands that accomplish a given a purpose. What software DOES, could be patentable in our view, but not the source code itself. As we wrote previously at LawPundit:
"Should computer software be patentable?

Well, what do I know about software?

I am the sole author of a ca. 10 megabyte software adventure program called Infinity One: The Secret of the First Disc (version one), which was submitted to Microsoft in 1994 for a finding that it was Windows Compatible, which it was, resulting in a 1994 license agreement with Microsoft (May 27, 1994) for the use of the Microsoft Windows Compatible Logo on the product packaging.

Accordingly, I know something about software, having programmed that software from scratch, originally for Atari, and then converting it to Windows. I did it all as a beginner, without ever consulting anyone on programming "methods" or "algorithms", having written the program mainly to "learn how".

Did I violate any software patents? Who knows? and who cares!

Software programming is all just math and logical reasoning.

That is the software programming reality."
As stated previously, however, despite our opposition to software patents, we think software should be copyrightable and should be so protected in the same manner under law that fiction and non-fiction books are protected.

Our software adventure Infinity One has source code that can be be printed out on paper like a book. It is programmed in the languages STOS for Atari and Visual Basic for Windows. We think our software adventure should be copyright protectable, just like a novel, though we can not lay similar copyright claim to the enabling software programs STOS and Visual Basic, which are required for the programs to work on a PC. Those software programs should of course be protected by copyrights in their own right, subject to use only in conjunction with licenses granted to the user upon purchase. We have no problem there.

Nevertheless, such copyrights on software are seen correctly to apply to the "whole" work in question and to apply less so for the constituent parts. The smaller are the parts or "modules" of software programming code in question, the less protection they should have, just as any other written "expression". 

At one end of the spectrum, for example, we think that no individual  line of software code in a software program should ever be either copyrightable or patent protectable, because there is often only one way to write a source code line such as "if n=1 go to 2", even if such a programming line is or can be used in innumerable programming contexts.

The same is true for a line of text in a novel. Short blurbs of text should not be protectable as someone's intellectual property, since there would soon be no language left to use. It is only the combination of elements into a larger whole that creates a unique work of copyrightable creative "expression" -- which at the same time, however, should not limit the expressiveness of others.

But let us ponder for a moment that someone manufactures a keyboard that interfaces to modern PCs only via a proprietary "application programming interface", i.e. a fixed set of characters viz. text, that acts as a unique barrier through which any other software application program is required to pass in order for that keyboard to be software-accessible. Anyone wishing to access or program that keyboard MUST use that fixed set of characters as the interface. Is that fixed text then a copyrightable text "expression", or merely a convenient barrier to limit expression by others?

Simple "imitation" or "cloning" should not be punishable under intellectual property law. Quite the contrary, imitation is one of the main motors of human progress. People see what is successful in any field of commercial enterprise and imitate it, because they presume that is what people want to buy. Successful novels imitate other successful novels. Successful advances in digital technology have been imitated from the beginning. But that is not prohibited by law, nor should it be. Imitation is not copying in the legal sense.

Android did this imitation with Java, cloning elements of Java, i.e. what was quite obviously a successful concept, but Android wrote its own software code implementation for those successful parts of Java that were subject to being rewritten, and that independent software writing was done to avoid the charge of "copying" copyrightable material. "Cloned" software code is not a "paraphrase", as of a novel -- as critics allege. It is simply stand-alone software code that accomplishes the same or similar purpose using other characters of text viz. programming language.

What Android did not clone are those interface elements of software code that permit no other formulation. Such elements should not be treated as copyrightable expression. Their purpose has nothing to do with creative expression. They are fixed "interfaces"which should not be monopolized by means of the flawed interpretation of copyright law applied by the Federal Circuit. By definition, a "creative" expression can be composed in myriad ways. An expression that can be stated only in one way seeks to monopolize certain phrases of language for private commercial  gain. That should not be permitted, as Judge Alsup found in the lower court.

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