[Discuss] can you copyright an API?

[tmetro-blu at vl.com (Tom Metro)]

Edward Ned Harvey wrote:
> Only if the patent holder granted you GPL on something they patented...  And
> you steadfastly obeyed the terms of GPL.
> ...if they
> released something (patented) under GPL, and you infringed their patent
> under something that wasn't derived from what they released...  Then you'd
> still be unprotected.

Typically patent licensing and copyright licensing are completely
independent. Under the GPL they appear to be loosely coupled. GPL v2, as
used by OpenJDK:

http://openjdk.java.net/legal/gplv2+ce.html

has this relevant bit in paragraph 7:

  If you cannot distribute so as to satisfy simultaneously your
  obligations under this License and any other pertinent
  obligations, then as a consequence you may not distribute the Program
  at all.

  For example, if a patent license would not permit royalty-free
  redistribution of the Program by all those who receive copies directly
  or indirectly through you, then the only way you could satisfy both it
  and this License would be to refrain entirely from distribution of the
  Program.

That seems to say if you develop some software, and have patents that
cover it, you're obligated to grant everyone a royalty-free license to
those patents if you choose to use GPL as your license.

Conceivably the GPL could be customized (and this one is; it adds a
"Classpath Exception") to have language saying that the patent is only
provided royalty-free for users of this specific GPL licensed code and
its derivatives. But it doesn't.

I don't see any other document here:
http://openjdk.java.net/legal/

where they grant a license to applicable patents either.

Lacking such an exception, my interpretation is that Sun granted a
royalty-free license to use the applicable patents to everyone,
regardless of whether they are using OpenJDK or not. (The patents are
still valuable to them for defensible purposes.)

However, this reasoning must be flawed, otherwise Google would have
employed it, or...


> ...I don't know if the alleged patent infringement is something
> that was released under openjdk... 

Right.

The patents in questions may not be related to OpenJDK, and thus not
implicitly licensed.


> But even if it is, that's irrelevant, because google didn't base
> what they did from openjdk.

I'm not convinced it is irrelevant per above.


In any case, we're heading off on a tangent from the thread. I'm far
less interested in whether Google prevails on the overall suit than in
the question of whether APIs can be protected by copyright.

 -Tom

-- 
Tom Metro
Venture Logic, Newton, MA, USA
"Enterprise solutions through open source."
Professional Profile: http://tmetro.venturelogic.com/