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Having written an IDE, an API, and having gone through the copyright process for software before, I have at least a little understanding the current debate between Google and Oracle. While the general consensus seems to be that Google is right, I disagree. Here are my reasons.
1. There is very poor support for software copyrights at the U.S. Copyright Office. This is true to such an extent that it is practically trade interference. Like or not, the copyright office is almost universally unwilling to review file formats that are aren't developed by Microsoft.
The costs associated with patents are extraordinarily high, and the procedures for using the patent system is so obfuscated that it is meaningless for software. It might be practical to create a filing system for APIs that are separate class of design patent. But the real issue here, is nobody in the USPTO or the the Copyright Office wants to serve the software industry.
API copyrights provides an abbreviated basis for for dealing with the copyright office, and provides an easier mechanism for courts to understand. It is trivial to rename elements of source code in a piece of work and make it appear to not be the same work, though fundamentally it is. Contrary to this APIs must be the same to be useful. This means that distinguishing infringement is easier for them, which makes it easier for me to establish a protectable space for my work.
2. Protocols are underdeveloped. One of the huge arguments made by Google supporters is that API copyright will break protocols. Yes they will. This is a good thing. We should be doing more in protocol development and less in presentation development. It is a simple fact that civil rights in domestic communications is a technically achievable thing that has very little support from the commercial sector. Backwards compatibility has created market pressures that have preserved insecure systems architectures, and that has had a very negative effect on civil rights.
API copyrights will break backwards compatibility. But more importantly, they will preserve the market space of forward compatibility. Which is to say that API copyrights will have a positive effect on mitigating Embrace Extend Extinguish (EEE) business strategies. This is very good for FOSS in particular, and it will be good for the Internet, because it will force a more diverse protocol stack into existence. Sorry IETF, but we are way past the point where there is any excuse for the current state of the TCP/IP Internet.
3. If you are writing clean code, you are writing an API. If you are using Object Orientation correctly, everything you do during the development cycle contributes to the creation of an API. The only exception is the main() loop, which aggregates all of these API calls. Which means (drum roll) if you write clean code in a modern programming language, you are writing protectable code.
The semantic differences that people make over API vs. code are ridiculous. The Copyright Office currently accepts "compendiums" as copyrightable works. An API is a compendium of function calls, sans the underlying functions. But BOTH are copyrightable. There is nothing in an API copyright that prevents you from copyrighting the underlying source code as well. C has always done something similar by separating header and source files. So does your header file deserve less copyright than your source code? Hardly.
All the API copyright does is create a legal namespace that is unique to your project. It is more akin to a trademark than it is copyright or patent. But in any case, there is a need for lawfully protectable namespace in software.
4. It will fragment the software industry. Software engineers are notoriously cantankerous characters. If small software projects and library writing become more protected by copyright, then independent software development will be more profitable.
5. The whole case might be a put-on. Maybe Google is just shouting: "Don't throw me in that briar patch!", to each judge as they pass by. Both of these companies have huge back catalogs of software, all of which would be massively more litigable if Oracle wins. I believe this to be true and regard the variability of the outcome as slight. If they are playing Potemkin village to the highest court in the land, well that is their prerogative. They paid the lawyers to put on the show after all.
YMMV
Anonymous
(Score: 4, Insightful) by theluggage on Tuesday November 19 2019, @02:04PM
Everything is mathematics - for a given definition of "mathematics", "everything" and "is". "Software is Mathematics" is, at best, a non-falsifiable claim: Ask N mathematicians to define mathematics and you'll get e^(iN) definitions.
You can turn an image of Mickey Mouse into the mathematical description of a bunch of ellipses (and he was actually designed that way - c.f. a tiny proportion of software being designed mathematically) - now, there are plenty of reasons why Mickey shouldn't still be under copyright, but "being mathematics"
There's also a big difference between "software" and individual snippets of code that implement well-mathematically-defined functions (I'm going to use "algorithms" to describe that henceforth) or, if you prefer, "TeX" vs. "Quicksort"). Any substantial piece of software combines a whole bunch of algorithms combined in a unique way, combined with a ton of creativity (e.g. with the TeX example, a metric shitload of insight and research into the practicalities and aesthetics of typesetting). Even describing, say, JPEG compression as "do a discrete cosine transform and just keep the firstN coefficients" leaves out a lot of vital detail (see what I did there? :-)) on how you practically apply that to an image in order to avoid humans spotting the artefacts.
Even mathematical "formal methods" (used to create a vanishingly small subset of software) just shift the "uniqueness" from the code to the specification.
Genuine question - was the "mathematics exemption" in Copyright/Patent law added before or after the work of Russel, Godel, Turing et. al. really made logic and algorithms part of mathematics? Pretty easy to argue in court that Benjamin Franklin wouldn't have seen a sorting algorithm as mathematics.
NB: TFA is still bullshit doublethink - I'm not supporting the idea of software copyright in its current form - but the "Software as mathematics" argument has already failed in patent law by being (a) too academically debatable and (b) having potential effects far beyond software (the EU just ended up with the "computer implemented invention" bullshit as a result). No sense in wasting time and effort on a weak, ineffectual argument when there are already other, more specific clauses that should eliminate software being ignored. If you can't get a consensus via valid debate then the argument won't stand a snowflake in hell's chance against the sort of FUD and Chewbacca defenses that Big IP will mount.
Arguments based on abstract principles like "software is mathematics" just reinforce the notion that there is some natural, moral justice behind IP that can be defined. There was never natural justice behind patents, and copyright is reaching far beyond any natural justice it might have had. Copyrights/Patents exist because they claim to have practical benefits for science/art/industry. There is plenty of evidence that patents and the current implementation of copyright have the opposite effect on software. Those are the arguments that should be advanced. "Software=mathematics" is just grabbing the tar baby.
If TFA has any valid point it is that the current application of copyright to software is a kludge. Personally, I think the "information should be free" principle is a nice ideal if you have tenure (the 'lots of work customising code' argument might work in some niches, but is unlikely to pay for the initial code - plus, selling code paid for my house, so I can't protest too much) so we need something that allows people to make a reasonable profit from their work for a reasonable time - so really copyright and/or patents need to be fixed to explicitly cover (or not) software with appropriate quid-pro-quos. Not holding my breath, since any new law would probably be dictated by Big IP. However, its worth remembering that pretty much all Open Source licenses currently rely on copyright law to back up their terms of use (whether its full-blown "copyleft" like GPL or attribution requirements and disclaimers in more permissive licenses).
(* I'm aware that Copyrights and Patents are different things, but the 'software=mathematics' argument gets applied to both, there are many other issues in common, and the catch-all "IP" sticks in my craw)