

EU court: Reverse engineering OK, API not protected by (c) and more - jwildeboer
http://jan.wildeboer.net/2012/05/breaking-european-court-decision-oracle-and-google-should-note/
EU court of Justice decides: Program language, API free to be reimplemented. Reverse engineering also OK, cannot be stopped by license terms. Interesting when compared to Oracle v Google.
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sohamsankaran
Assuming the US court does end up ruling (even partially) in Oracle's favour,
this would serve to make the U.S. an even less attractive location to start a
startup than it already is due to current and proposed violations of basic
human and civil rights by the government in order to protect content copyright
holders (i.e. the interests represented by the MPAA and RIAA)[Citing Kim
Dotcom/Megaupload, SOPA/PIPA/CISPA]. I postulate that this might result in a
perfect storm of conditions that result in the shifting of the centre of
gravity of the startup, and eventually wider entrepreneurial/financial worlds
off American shores for the first time in more than a century, perhaps to
Europe, due to a more conducive legislative environment, or, more
intriguingly, to India or perhaps Brazil (assuming they get their governments
in order). The advantages of the Silicon Valley ecosystem are still massive,
but they would, in such circumstances, erode over a (not necessarily very
long) period of time.

Edit: The page appears to be down, so I've posted the full text on pastebin -
<http://pastebin.com/6G5vqLj5>

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ars
The opposite could happen too. If you want to make sure your APIs are
copyrighted then you would stay in the US.

For example it would make it harder for someone to offer a drop in replacement
for your cloud based service by replicating your APIs exactly.

Personally I doubt APIs could be copyrighted, but some would find an advantage
if they could.

~~~
sohamsankaran
Right, but I suspect those who would find advantage would be the incumbent
market leaders in their respective fields. The truly disruptive startups, the
innovators, would be weighted down considerably by such legislation, since
they might unknowingly replicate an obvious part of a copyrighted API. The
situation would quickly spiral out of control. If that were the case, the
copyright-ability of APIs might result in the stagnation of software
development itself, in the absolute worst case, though I suspect, as I have
previously stated, that people would get around that by relocating to more
friendly legislative environments.

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glesica
I think this is the bigger risk. Copyrights are even more numerous than
patents and are _potentially_ much more difficult to avoid infringing. You
could infringe an API in a totally different industry and never know it, and
there are so many of them that checking first would be basically pointless.

At least with patents you can do some reasonable due-diligence (e.g. when
building an audio codec, check for audio processing patents). You're not in
the clear just by doing so (obviously, look at all the lawsuits) but it's at
least some protection. API copyrights _could_ end up being much more deadly IP
landmines.

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Retric
Unlike patents, you can't accidentally infringe Copyright. You can have 3
photo's of a buss that look vary similar, but only 1 was infringing because it
tried to recreate another picture.

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MichaelGG
Referring to [1]? That's already a huge step worse than copyright, and just
starts on the path to "Well look, I published an API to upload files with a
progress callback. And you clearly wanted to do the same thing and even named
it Upload, but you just moved the parameter orders around."

1: [http://www.techdirt.com/articles/20120126/10515817552/uk-
cou...](http://www.techdirt.com/articles/20120126/10515817552/uk-court-says-
you-can-copyright-basic-idea-photograph.shtml)

~~~
Retric
What I think your missing is that picture was as common as a the coke logo. If
they where a random coffee shop somewhere the 'I have never seen that photo'
defense would have worked just fine. Patent trolls work because they can lie
in wait for people to 'infringe' but unpopular API's that few people use don't
have the landmine effect. If you never saw them they don't exist.

~~~
MichaelGG
That wasn't quite my point. Copyright should cover the expression only. Right
now, I could go write my own book that's clearly inspired by Star Wars or
Harry Potter. This sets a precedent that even creating a _similar_ book,
photo, or API is infringement. This directly goes against the idea of
copyright: to generate more works for society.

~~~
grabeh
The case is quite unique in some ways because the alleged infringer disclosed
that they had intentionally instructed a designer to design around the
original.

Copyright, at least in the UK, has for a long time granted protection for
copies which are not necessarily identical, but similar where they are a
substantial reproduction of the original.

Admittedly in the case above the line between protecting an idea and the
expression was pushed towards the idea, however, as stated, the specific facts
of the case (in the sense that it was a blatant attempt to mimic but not
infringe the original) made it more likely that the judge would find
infringement.

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ktizo
They should have used the law on 'passing off' rather than copyright.

<http://en.wikipedia.org/wiki/Passing_off>

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grabeh
Why do you say that? They were successful in the instant case and in my
experience, passing off actions are far harder to prove than simple copyright
infringement actions. There was no misrepresentation here designed to divert
custom, just a good old fashioned desire to use someone else's image.

~~~
ktizo
Because the case was more suited to the law of passing off.

How much experience do you have of passing off cases versus simple copyright
infringement? Because to me this looks like a bad decision, as whatever the
intent the same image was not used, just one that was similar in content and
execution.

And it certainly looks like misrepresentation to divert custom.

~~~
grabeh
I have experience of acting for clients on both sides of passing off and
copyright infringement claims.

There was clearly no passing off here in the way you tend to frame a passing
off action as per Warnink (in the UK at least). What misrepresentation are you
referring to?

The defendant was a tea company looking to use an image, the claimant was a
gift company so it wasn't a case of a customer going to the tea company when
they meant to go to the gift company. This is the misrepresentation which
generally has to be in place for a passing off action to be successful.

Copyright infringement does not just cover identical images but substantial
reproductions. The correct question is whether the copy was a substantial
reproduction or whether it simply borrowed elements from the original, that is
to say whether the line between inspiration and copying had been crossed.

\edit I would also add that in general passing off actions are far harder to
prove than copyright infringement. To my mind, if a copyright infringement
action is available this would always be preferable to bringing a passing off
action.

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robotmay
Nice to know, as I'm currently reverse engineering API calls for a few
organisations in the UK who don't supply their data in easily parsable
formats. It's not for anything malicious; I'm actually trying to drive traffic
to their sites and help them gain more visitors. Try explaining to non-
technical people the benefits of an open API and why they should pay for one
:\

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pella
<http://www.groklaw.net/article.php?story=20120502083035371>

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yread
Since the blog is down here
[http://curia.europa.eu/juris/document/document.jsf?text=&...](http://curia.europa.eu/juris/document/document.jsf?text=&docid=122362&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=132624)
is the judgment and some commentary:
[http://www.bloomberg.com/news/2012-05-02/copyright-can-t-
blo...](http://www.bloomberg.com/news/2012-05-02/copyright-can-t-block-
software-reverse-engineering-court.html)

most important bit:

 _Consequently, the answer to Questions 1 to 5 is that Article 1(2) of
Directive 91/250 must be interpreted as meaning that neither the functionality
of a computer program nor the programming language and the format of data
files used in a computer program in order to exploit certain of its functions
constitute a form of expression of that program and, as such, are not
protected by copyright in computer programs for the purposes of that
directive._

~~~
mbreese
That's interesting because it goes even further than I'd have expected: that
file _formats_ themselves aren't protected. I guess that isn't surprising,
since you'd want a market where programs could all compete to operate on the
same files, but I don't remember that being talked about before (at least in
reference to Oracle vs Google). And that does go to the format of the Java
.class files.

I wonder what the EU courts would have to say about an encrypted file
format...

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dmragone
The key thing to remember is that the case in front of Judge Alsup in the US
Northern District of California is a jury case. It'll be up to people who have
no idea how computers work to decide this. Having just served on a jury, I see
the value, but in this sort of instance, I am frightened by the possible
result.

~~~
azylman
No, the jury will not be deciding on whether or not APIs are copywriteable.
Judge Alsup is deciding on that, if necessary. The jury will be deciding on
Google's fair use arguments etc.

~~~
dmragone
Thanks for the correction - though, quite honestly, having met Judge Alsup,
I'm not sure this is any better. He hates technology.

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jasiek
So this is interesting. What happens if national (eg. polish) law specifically
disallows reverse engineering? Which law takes precedence?

~~~
jwildeboer
The rule is simple. EU directives _must_ be implemented in national laws of
all EU member states. If Poland fails to implement the directive by such an
action a EU violation case would start ultimately leading to consequences.

OTOH this is a tested way to get stuff in laws that are hard to find national
support for. Make it an EU directive and explain to your people that "Sorry,
but even if we don't like it, we must implement this now." - see EU data
retention directive etc.

~~~
jasiek
What if the law in question has existed before Poland joined the EU?

~~~
Gmo
Part of the process of joining the EU is to make your legislation compatible
with the EU legislation.

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jwildeboer
I am trying hard to keep the site up, but you guys and gals are hammering the
sh*t out of my little vServer ;-)

~~~
driverdan
Throw CloudFlare in front of it.

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eblackburn
What are the ramifications, if Oracle win in the USA but isn't protected by EU
legislation?

~~~
grabeh
I'm not fully conversant with international copyright treaties, but the Berne
Convention to which both the US and various EU countries are signatories to,
provides that a work that is protected by copyright in one signatory country
will be protected in another country, so the ramifications in terms of
creating a divide between the US and non-US countries may not be overly
significant.

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excuse-me
Oracle (and Sun) knew this - that's why these are patents.

The law allowing reverse engineering of APIs and interconnects is well
established in the US and Europe and has been for decades. In the US it goes
back to Amdhal making plug compatible peripherals for IBMs and the right to
reverse engineer is enshrined in an EU directive.

That's why the Oracle case isn't about copyright. They claim to have patents
on various concepts of the language. So you are perfectly at liberty to
implement a 'while' command with the same function template - you just aren't
allowed to use it to do a loop !

