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Sunday, November 9, 2014

The Tyranny of "Consensus" - Why the Supreme Court Needs to Enforce API Copyrights

I have been very busy with a number of things which I shall write about at some point in the future.

However, this PDF link (created by the Electronic Freedom Foundation) caught my eye: It's from a link from ArsTechnica describing how copyrights on API's are a "thread" to the tech industry.

It basically says that without public access to software API's the tech world is doomed.

The PDF is written by "concerned scientists" as an amicus brief to the SCOTUS explaining why things like the UNIX system API's are all "public domain" and hence copyright should not be enforced.

In particular on page #9 of the PDF describes how the UNIX APIs, originally owned by AT&T, suddenly and magically became public domain as part of Linus Torvalds gift to humanity via Linux.

As someone who has used UNIX since 1975 and in person purchased a copy from Bell Labs on behalf of my employer in 1977 I can tell you that this software was owned by ATT and that there restriction on commercial use.  Certainly anyone could use UNIX but commercialization of any part of the original Bell Labs UNIX was a different story.

See, for example, this link regarding SCO and IBM.

It seems clear that anyone who creates an API and has ownership thereof can freely make such an API "public."

There is clear controversy about both the ownership and value of the UNIX APIs.

As for the APIs themselves?

There are several issues here.  For example, the original UNIX documentation had various sections accessible via man, a program to display documentation via print.  Section #1 was based on program, e.g., ls, cd, and so on.  Section #3 was based on the C API (also described in the EFF PDF) and defined things like read, open and close.

All of the original code we received was under copyright - there were no exceptions for APIs.  APIs were a "new thing" in the 1970's.

So the first question I would ask is why are the magical rights bestowed on others relative to Section #3 different than any other part of the documentation?

After all the C API is an API into kernal calls just like the shell command line.

It's taken thirty-some years of litigation to establish what can be freely used by something like Linux and what cannot.

Our EFF friends would like to hand-wave away this history and have you believe that the original APIs and associated copyrights are now simply public "rights" of anyone.

Our EFF PDF also does not clarify exactly what an "API" is.  Is it merely for compilers or does it include humans or other types of automata?  Does an API even require a computer? Today an API can be created for anything form submitting taxes to the IRS to communicating with satellites to controlling electronic cigarettes.

For example, patent claims often create an API for a process of some sort - does making any "API" open apply there?

I think not.

The entire concept of "openness" used in software APIs today to a large degree discards the rights of the authors who created them.  Richie and Thompson create UNIX for AT&T - not themselves as AT&T Bell Labs paid their salaries and hence owned their work product - and the "openness" of these APIs was ultimately decided by thirty years of litigation.

Much of what is open today is donated by the actual owners directly or indirectly.  And in my book this is as it should be.  If Microsoft chooses not to pursue the creator of something like Samba so be it - this is implicitly granting public license.

But what about Monsanto?  One could argue that DNA is simply an API - it has, like UNIX, a well understood set of operations, sequences, codes, and so on that create subroutines, e.g., glyphosate tolerance, which can be manipulated just like software subroutines and moved from one organism to another.  So why aren't Monsanto's "RoundUp Ready" products open?

As a programmer I believe that I own what I create - especially if I pay my own salary.  And any API I create is my own. 

I decide whether or not to cast it into the public domain.

Not the great community of developers who wish to usurp my rights and property for "the greater good."

No, today's programmers want to share everything - there is no responsibility of authorship or ownership - everything is owned by everyone.

I disagree - the same thinking is being forced onto music and soon, I am sure, the authoring of books.

After all, why should anyone own anything?

Why not make it all owned by the collective - the State?

Oh wait - humanity has tried that and tens of millions gave their lives.

Good thing no one teaches history any more so we can stumble down this well-worn path with our eyes wide open...

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