TABLE OF CONTENTS I. INTRODUCTION 517 II. THE NEW WAVE OF SOFTWARE INTERFACE CASES AFTER ORACLE V. 519 GOOGLE A. SAS v. WPL 519 B. Synopsys v. ATopTech 523 C. Cisco v. Arista 524 D. GDC v. Dolby 525 III. LESSONS FROM THE NEW WAVE OF INTERFACE CASES 527 IV. WHY AFFIRMATIVE DEFENSES ARE NOT ENOUGH 530 V. CONCLUSION 533 I. INTRODUCTION
Imagine you are interested in starting a car company. Perhaps your cars will have innovative electric drivetrains, like Tesla's. Perhaps you will cater to a niche audience that is not served by mainstream automobiles, following the example of companies like smart and Morgan. Perhaps you have something new and entirely novel to introduce to the automotive market.
Now imagine that, as a condition of entering the market, you first must design a new interface for your car--something different from the steering wheel and pedals with which all of your potential customers are familiar. In order to try out your car, customers would first have to learn this new "method of operation" (to use the terminology of 17 U.S.C. [section] 102(b)). Perhaps you are up to the challenge--perhaps gestures or a touch screen? But this would be a formidable obstacle, as your potential customers would literally have to relearn how to drive in order to try your products. If that hurdle was not enough to put you off the idea of entering the market (entrepreneurs are nothing if not optimistic!), it might be enough to put off any potential investors. Certainly, the requirement to create a new interface would be a substantial barrier to entry for your business and would represent a significant switching cost for your potential customers.
Fortunately, copyright law has many limiting doctrines that would make it impossible to assert copyright protection over the steering wheel and pedals of an automobile. (1) But as Professor Menell's article makes clear, while the stakes for software interfaces are just as high as for automotive interfaces, the copyright law answers are far less settled for software interfaces. The Oracle v. Google litigation--and the cases that have been brought in its wake--raises the very same questions posed by the automotive hypothetical: questions about switching costs, barriers to entry, and network effects. While these kinds of questions may, at first, seem far afield from copyright law, we can expect them to recur with increasing frequency in copyright cases in the years to come. After all, software will likely mediate more and more of the technologies we depend on. And interfaces are the steering wheels and pedals by which we operate software.
Those engaged in the copyright debate around interfaces fall roughly into three camps. First are those who agree with Professor Menell (I count myself among their number) that interfaces ought not be protectable by copyright, and who are worried that "[c]ompanies could use API strategies to lock in consumers and lock out competitors." (2) On this view, granting copyright protection to software interfaces (or "methods of operation" generally), permits the copyright owner not only to recoup its own investment, but also to unfairly and inefficiently capture the value of independent investments by its customers. The second group lies at the other end of the spectrum, untroubled by the "rise of the API copyright dead." Their reasoning is that the very purpose of copyright law is to create barriers to entry in the name of spurring investment and innovation. For them, once an interface has cleared copyright law's extremely low threshold of "creativity," there is nothing wrong with exclusive rights quelling free-riding by competitors. The third group takes a middle position, trusting in copyright's existing affirmative defenses, such as fair use and scenes a faire, to sort outcomes that enhance social welfare from outcomes that reduce competition to the net detriment of society.
Professor Menell does a thorough job of explaining why his view is the best of the three, based on statutory construction, jurisprudential evolution, and economic policy. Rather than restating those arguments, this comment aims to supplement Professor Menell's treatment by reviewing four software interface cases filed in the wake of the oracle v. Google litigation. Not only are the "copyright API dead" rising after decades of relative quiet, they appear to be rising with increasing frequency. Taken together, they lend further support to Professor Menell's arguments and bear out the policy concerns that he sets out. These four cases also lend further credence to Professor Menell's view that affirmative defenses are an inadequate correction for overbroad software interface copyright protection.
THE NEW WAVE OF SOFTWARE INTERFACE CASES AFTER ORACLE V. GOOGLE
As Professor Menell explains, copyright cases involving software interfaces were rare in the decades between the Lotus Dev. Corp. v. Borland Int'l, Inc. (2) and Oracle Am., Inc. v. Google Inc. (4) litigations. In the wake of Oracle v. Google, however, there have been a spate of such cases, with their rate of appearance accelerating after the Federal Circuit's ruling approving the notion that interfaces can be protectable by copyright.
SAS v. WPL
The earliest in this "new wave" of interface cases is SAS Inst., Inc. v. World Programming Ltd., (5) filed in the Eastern District of North Carolina in 2010. The facts are reminiscent of the early interface cases that Professor Menell discusses--a leading market incumbent sues a new market entrant for studying the interface of an existing software application, using that knowledge to reimplement those interfaces, and creating a competing product.
As with most real-world litigations, the case involves a number of procedural complexities (including a parallel litigation in the united Kingdom that made its way to the Court of Justice of the European Union, Europe's highest court (6)) and non-copyright claims (in this case, breach of contract, on which SAS ultimately prevailed (7)). But the contours are simple enough. SAS is a software company based in North Carolina that makes the "SAS System," a suite of software applications used by enterprises to perform statistical data analysis. (8) The SAS System is the leading application in this market segment. In order to use the SAS System, its users must first create their own programs, written in the SAS programming language. (9) Accordingly, SAS customers face high switching costs if they want to try a different statistical analysis application, as they have to rewrite programs that they already wrote for the SAS System, in order to use those programs in conjunction with a different application.
The defendant, a UK company called World Programming Limited ("WPL"), identified an opportunity here. If it could independently develop an application that interoperated with the programs that SAS customers had already written, it would be able to compete directly with SAS. In order to create its competing application, WPL studied publicly available documentation about the SAS programming language, the behavior of a legitimately acquired "learning edition" of the SAS System, and the operation of the SAS System in the hands of an existing SAS customer. (10) This enabled WPL to create its own interoperable application called the World Programming System, designed to run the programs written by SAS customers--in the words of SAS, "a cheaper drop-in replacement." (11)
SAS responded by suing for copyright infringement. SAS argued that WPL had infringed its copyrights "by using certain software language functions and by copying the resulting output formats that are produced when a user runs those language functions through the SAS System." (12) In its briefing on appeal, SAS refers to these elements as the "input and output formats" of the SAS System. (13) With respect to the "input formats," SAS characterizes these as "a 'simple set of... concise commands' to request a comprehensive analysis." (14) With respect to the "output formats," SAS describes these as "the tables, graphs, and other forms of output" that are produced by the SAS System from user programs. (15) In other words, the heart of the SAS copyright claim is focused on the interface used by SAS customers to operate the SAS System, as SAS itself admitted:
SAS is unlike commonly used consumer software--such as a web browser, word processing program, or videogame--whose users interface with the software by clicking a mouse, moving a joystick, or typing text into a box. In contrast, SAS users interface by issuing written instructions to the software. Those instructions are provided by users as text files containing the required instructions and are generally referred to as "SAS Programs." SAS Programs are written in a high-level programming language developed and maintained by SAS and known as the "SAS Language." With a set of commands, a user can instruct the computer to access and arrange data and then perform a comprehensive analysis. Different from a computer programming language like FoRTRAN or C (the underlying programming language used by SAS to write its own software), the SAS Language allows a user to cause the SAS System to process and analyze data with concise written instructions that would otherwise require "literally hundreds of thousands of lines of code" in a low-level programming language. (16) The district court, however, was unpersuaded. It granted summary judgment to WPL, holding that all WPL had done here was copy the "SAS programming language," and languages are not protectable copyright subject matter:
In essence, by asking the court to find that defendant's software infringes its copyright through its processing of elements [of] the...