Commons Law
Andrew Katz
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Andrew Katz is partner and head of the IT/IP team at Moorcrofts LLP, a boutique law firm based in the Thames Valley providing corporate and commercial advice to knowledge-based industries. Andrew qualified as a barrister and requalified (and now practises) as a solicitor. He financed his way through bar school by jobbing as a (fairly incompetent) programmer (in turbo pascal). He now specialises in free and open source software law and has written and lectured widely. He is a founder editor of the International Free and Open Source Software Law Review, a fellow of the Free Software Foundation Europe and advises businesses and communities on free and open source licensing and strategy worldwide. He is slightly obsessive about live music. These are his opinions, and not those of his firm.
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Linked-in ProfileHelpful judgment from the Advocate General
A victory for sense in the legal process
Published 11:37, 02 December 11
Is it possible to claim that an API is covered by copyright, so that it can't be reverse engineered and a competing product built using a compatible API?
Likewise, can a programming language be protected by copyright, so it's not possible to make a competing compatible compiler without the permission of the author of the language?
With such knotty problems in mind, the Advocate General of European Court of Justice has just issued an opinion in the case of SAS Institute v. World Programming.
And the news is good. Unless by implementing an API the author of the competing code rips off the underlying code of the original software, then creating competing software is not an infringement of copyright. Likewise, neither is creating a functionally identical programming language.
The fundamental rule of copyright is that copyright protects the expression of ideas, not the underlying ideas themselves. APIs and programming languages are equated with ideas, and the code which implements them is equated with expression.
The opinion of the Advocate General is persuasive, but not binding on the European Court, but even so, this is certainly cause to celebrate. If the opinion is confirmed, then it's good for competition, good for startups, and good for open source and open standards.
It will be interesting to see whether the Oracle vs Google case, which considers similar issues, results in a similar conclusion.
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