Copyright Week: Software Interfaces Shouldn’t Be Copyrighted

CDT is taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Copyright Week takes on different elements of copyright law and policy, highlights what’s at stake, and discusses what we need to do to make sure that copyright promotes creativity and innovation.

Earlier this month, CDT joined with the Institute for Intellectual Property and Social Justice (IIPSJ), the National Consumers League, and the National Federation for the Blind, to file an amicus brief in Google v. Oracle, a case currently pending before the U.S. Supreme Court. The case may determine how much, if any, software should be subject to copyright, and the contours of the fair use defense in the digital age. 

The issue in the case is whether a software interface can be copyrighted. A software interface is the point of connection between a computer program and something else, like another program or a human being.  In order to be understood by computers, the commands received across an interface must take a precise form, and the author of a piece of software dictates what that form will be. However, that initial choice imposes restrictions on those down the road: Anyone using a computer system, either directly or through software of their own, must follow the rules of the interface. To learn more about how software interfaces work, check out an amicus brief by 78 computer scientists.

Consumers benefit from the freedom to use and re-use software interfaces, and they would pay the cost if that freedom were taken away. Most of us do not routinely write code or build electronics, but we rely upon our apps, devices, and programs to work reliably in our daily lives.  In an ideal world, one can use an Apple iPhone to check and view an Amazon Ring security camera, adjust a Google Nest thermostat, or turn on a Roomba. If copyright law were expanded to include interfaces, fewer programs and devices will talk to each other. Standard interface design would become a rarity, making each new program more burdensome to learn and making each program its own separate silo.  

If the Court were to decide that interfaces can be copyrighted, we will have less control over the things that we buy, because copyright will take on a new role in restricting how we can use our property. It would give the originators of important interfaces the power to prevent consumers from using their products with third-party software and electronics, to restrict the use of third-party replacement parts, and to interfere with competitors seeking to innovate and bring better offerings to market. It would also turn the time and effort consumers have invested in getting familiar with those interfaces into a barrier that impedes users from switching to a competitor’s alternative system.

Oral argument will likely take place in late March, with a decision by this summer. Our profuse thanks to Joseph C. Gratz and the excellent lawyers at Durie Tangri for their help with the brief.