INTERNET OF INFRINGING THINGS: THE EFFECT OF COMPUTER INTERFACE COPYRIGHTS ON TECHNOLOGY STANDARDS.

• Author: Duan, Charles

1. INTRODUCTION

1. INTRODUCTION 2 II. THE DISPUTE OVER COPYRIGHT IN COMPUTER INTERFACES 5 A. WHAT IS AN INTERFACE? 5 B. DEVELOPMENT OF THE LAW ON INTERFACE COPYRIGHTS 7 III. TECHNICAL STANDARDS: UBIQUITOUS COPYRIGHT INFRINGEMENT? 11 A. MODERN TECHNOLOGY'S DEPENDENCE ON TECHNICAL STANDARDS 11 B. TECHNICAL STANDARDS ARE COM PUTER INTERFACES 13 IV. INDUSTRY EXPECTATIONS REGARDING INTERFACE COPYRIGHTS 21 A. PATENT POLICIES TO DEAL WITH CONTRIBUTIONS OF PATENTED INVENTIONS TO TECHNICAL STANDARDS 24 B. THIRD-PARTY CONTRIBUTIONS OF INTERFACES 27 C. COPYRIGHT POLICIES-OR LACK THEREOF-TO DEAL WITH CONTRIBUTIONS OF INTERFACES 31 V. HANDLING THE DISCREPANCY BETWEEN LAW AND INDUSTRY EXPECTATIONS 36 VI. CONCLUSION 38 VII. APPENDIX: TABLE OF ABBREVIATIONS 39 You connect to the Internet via your Wi-Fi access point. You surf the Web using a browser and send emails through your email server. You probably use some USB peripherals--say a mouse, keyboard, or printer. Maybe you even watch cable or broadcast television.

   Under current case law, each of those computer systems and devices may very well be copyright-infringing contraband. This is through no fault of your own--you need not be pirating music or streaming illegal movies to infringe a copyright. The infringement simply exists, hard-wired within each of those devices and many more that you use, a result of the devices' basic operations: connecting to Wi-Fi, displaying web pages, sending email, connecting peripherals, or receiving broadcasts.

   The root of this unexpected situation is an obscure corner of copyright law: copyright in computer interfaces. This issue has been hotly debated for decades, (1) but has come to particular attention in view of several recent decisions in the Oracle v. Google litigation. (2) Much attention has been paid to the implications of those decisions for software programmers and particular computer systems. (3) But the connection of that case to ordinary, everyday technologies does not appear to have been made in detail--perhaps because the complexity of the technological issues, in combination with the obscurity of the copyright doctrines, have rendered it difficult to shine light upon the issue. (4)

   This article aims to fill that gap and explain how copyright in computer interfaces implicates the operation of common technologies. An interface, as used in industry and in this article, is a means by which a computer system communicates with other entities, either human programmers or other computers, to transmit information and receive instructions. All the technologies discussed above--Wi-Fi, web pages, email, USB, digital TV--are thus interfaces under this definition. Accordingly, if it is copyright infringement to implement an interface (a technical term referring to using the interface in its expected manner), then all of those common technologies infringe copyright.

   Intuitively it seems unbelievable that all sorts of common computer technologies are copyright infringements, and this article confirms that intuition at least with respect to the views of the computer industry that developed those technologies. Generally speaking, the proof is as follows. Technological interfaces are specified in standards documents--IEEE 802.11 for Wi-Fi, SMTP for email, USB for USB--that are prepared by standard-setting organizations, which are large consortia made up of industry members large and small. Those organizations are keenly aware that use of their standards implicates at least one form of intellectual property, namely patents, and set up elaborate licensing systems to deal with the possibility that implementing a standard could infringe a patent.

   If the organizations believed that implementing a standard could infringe copyrights, one would expect them to maintain copyright licensing arrangements on par with their patent licensing arrangements. Yet this article reviews the policies of several of the most prominent standard-setting organizations, and not one has a copyright policy even approaching the simplest patent policy--indeed, many organizations have no copyright policy at all. The absence of copyright licensing policies suggests that, at least in the eyes of standard-setting organizations and by extension in the eyes of technology industry members, implementation of computer interfaces is not an infringement of copyright. The apparent discrepancy between current law and industry expectation raises the question of how courts should react to this discrepancy. Intellectual property law has generally sought to track industry expectations and promote rather than subvert them, and courts in particular have tried to advance the work of standard setting organizations through a number of doctrines of patent law. It would be good policy for courts to apply the same rationale to copyright law, recognizing that it would be better for copyright in computer interfaces to track the expectations of standard-setting organizations rather than upending those expectations and leaving the copyright infringement status of all sorts of modern technologies in limbo.

   The remainder of this article proceeds as follows. Section II defines computer interfaces and what it means to implement one, and discusses the law of copyright in interfaces. (5) Section HI reviews several common technologies, including Wi-Fi, web pages, email, and others, and explains how those technologies are in fact interfaces such that implementation could constitute copyright infringement. (6) Section IV demonstrates, by comparison of their patent and copyright policies, that standard-setting organizations do not expect implementation of computer interfaces to constitute copyright infringement. (7) Finally, Section V considers how courts should react to the divergent views on copyright in interfaces. (8)

2. THE DISPUTE OVER COPYRIGHT IN COMPUTER INTERFACES

   The ongoing legal dispute addressed in this paper is the question of whether computer interfaces may be protected by a copyright, such that implementing the interface constitutes an act of copyright infringement. This section first defines the terms interface and implementation, and then reviews the relevant case law.

   1. WHAT IS AN INTERFACE? (9)

      Though some have described it as a "verbal chameleon," (10) the term interface is in fact a straightforward concept. An interface is a means by which an entity, either human or computer, can interact with a computer to receive information or provide instructions. Technical dictionaries define the term as a "connection between two systems through which information is exchanged," and in particular with regard to software as "a standard format for exchanging data." (1) ' This definition should not sound foreign, because the concept of an "interface" is well known from many fields. A "user interface" includes the windows, icons, and other graphical elements by which people communicate with computers. The Ninth Circuit described the "graphical user interface" as the "way for ordinary mortals to communicate with the Apple computer." (12) Outside the computer context, "interface" can mean "communication or interaction," or "a thing or circumstance that enables separate and sometimes incompatible elements to coordinate effectively." (13)

      Interfaces take on many forms, and particular types of interfaces are given specific names. An application programming interface, or API, is an interface made up of words and syntax used for controlling (i.e., programming) a piece of computer software (i.e., an application). (14) A protocol is an interface used between two systems communicating over a network connection such as the Internet. (15) The Federal Circuit has used the term "declaring code." (16)

      An interface is thus a generalized mechanism of communication--a type of language. Indeed, language is an interface between humans, a means by which a person receives information from or instructs another. (17) Importantly, this means that an interface is an abstract concept. It may be embodied in a work using it or a dictionary enumerating its vocabulary. (18) But standing alone, it is merely abstract knowledge, enabling two parties to understand and perform the wishes of each other. To make this abstract concept more concrete, though, consider a familiar computer interface for controlling the playing of music. The interface is made up of commands such as "Play," "Pause," "Next Song," and "Previous Song." Each of those commands is used to instruct the computer on what music to play. In general, interfaces may be thought of as collections of commands.

      To implement an interface means to develop a device or system that carries out commands and provides information and responses consistent with the interface; that is, to make something that "understands the language" specified by the interface. To implement the music-playing interface described above, for example, one would write a computer program that turned the music on upon the command "Play," stopped it upon "Pause," and so on. Consistency is the expectation: A program that fast-forwarded upon receiving the command "Play" would not be a useful implementation of this interface.

   2. DEVELOPMENT OF THE LAW ON INTERFACE COPYRIGHTS

      Is implementation of an interface an infringement of copyright? Other commentators have extensively considered this issue, (19) so this section provides a brief summary of the development of the law on this question. In short, interfaces were historically not considered subject to copyright protection, such that implementation of an interface was not an infringement. (20) That changed with the Federal Circuit's recent decisions in Oracle America, Inc. v. Google Inc. ("Oracle I") (21) and Oracle America, Inc. v. Google LLC ("Oracle II"), (22) which effectively reversed course and deemed implementations of interfaces to be very likely infringements of copyright. Because of the nature of the Federal Circuit's appellate jurisdiction, any...