Bruce, you say you were anything but wrong about me, after you claimed further above that I was hostile to open source "all the way back to the SCO issue", a dispute that began in 2003 and ended in March 2010, only to claim that a totally unrelated issue (mainframe patents) I commented on in April 2010 was a way to lend credence to SCO's arguments. "All the way back to the SCO case" is not "a week after the final nail in the coffin of SCO's case, on a matter involving patents, though patents were never at issue in any SCO case." And now you still can't just apologize for a false allegation. I'm sorry for you, really.
It's your fault, not mine, that you've been exposed here in this discussion as someone who is not just emotional but also very unreasonable. And it's easy for the world to see that you said something that was baseless and then tried to justify it with a totally baseless theory.
1) In response to my first mesage to you here, you wrote: "You also made yourself a paid voice that was often hostile to Free Software, all the way back to the SCO issue." I repeat the last part: "all the way back to the SCO issue".
2) I then pointed out that I never ever, not even privately, expressed an opinion on any of the issues in the SCO case because I never cared enough about it to take a close look.
3) You then mentioned the IBM patent threats against an open-source mainframe emulator, which I first blogged about on April 6, 2010 and claimed the following: "It was a way to lend credence to IBM [which you then corrected to mean SCO] and MS arguments during the SCO issue. To state otherwise is deceptive, perhaps even self-deceptive." However, according to Wikipedia, "[t]he SCO Group allege[d] that its license agreements with IBM means that source code that IBM wrote and donated to be incorporated into Linux was added in violation of SCO's contractual rights." This has nothing at all to do with IBM theatening an open-source project with patents. On that Wikipedia page the only kinds of rights that are mentioned are copyrights and contractual rights, and it says: "SCO has not claimed patent infringement"
So Instead of just admitting that you accused me of a connection (SCO) that never existed because I never said anything about that case, you're now actually saying that someone drawing attention to an open source PATENT issue in April 2010 was trying to lend credence to DIFFERENT parties' arguments in a COPYRIGHT and CONTRACT case in which no patent was ever at issue. That's already bizarre, but it's even worse in chronological terms. According to Wikipedia, summary judgment had issued against SCO in 2007 (which suggests the judge didn't believe SCO had any reasonable point), the appeals court (in 2009) had reversed in part and remanded for a trial, and "[o]n March 30, 2010, following a jury trial, Novell, and not The SCO Group, was unanimously found to be the owner of the UNIX and UnixWare copyrights." That was exactly a week before I first blogged about the IBM mainframe patent issue. So apart from a patent issue being factually unrelated to a copyright/contract issue, it would also have been to late.
Why don't you just admit now that you were wrong about me and SCO? Everyone who reads this exchange of arguments here can say that I'm right. If you at least conceded that you made a mistake, you could minimize the damage to your credibility.
Your emotions lead you to speculate and this results in absurd claims and theories. The problem is you're digging yourself, not in the eyes of unreasonable people but in the eyes of rational people, a hole that gets deeper and deeper.
This thing about the IBM mainframe issue having had any connection with the SCO case is a wild conspiracy theory and a non sequitur. Even though I didn't follow the SCO case in detail, I believed, with the very limited information I had, it was already pretty much over when I ran my campaign against software patents (which was, at the time, mentioned by Groklaw). I certainly believed so in 2010, when the IBM story came up.
So I have a hard time seeing why SCO (at a time when it had apparently already lost) and Microsoft (?) could have achieved any particular SCO-related objective in connection with a mainframe antitrust issue. There was an issue in the mainframe context--otherwise the European Commission wouldn't have opened formal investigations (which isn't the same as a prohibition decision, but there is a considerable hurdle because the Commission gets so many complaints all the time and investigates only a limited number of them).
But the fact that you apparently have no qualms about IBM having threatened patent assertions against an open-source mainframe emulator is now the first indication I've seen that your "high road" is self-deception.
Your theory about "guilt" is similarly wild and baseless. It has nothing to do with guilty feelings if one doesn't want untruths and misconceptions to be spread. My connection with SCO is an untruth. My taking an open source leadership position is a misconception at best and an untruth at worst.
While I criticized IBM's patent threats against an open source project because I previously criticized their open source patent pledges, I'm not generally against them and actually had a very friendly meeting with an IBM executive earlier this year in Munich.
As for credibility, I know where I have plenty of it, and I've mentioned some of it here. Based on how you argued in this discussion here, I consider it much less desirable than before to have credibility in your eyes--in the eyes of a self-righteous guy who is (unlike what I ever was or tried to be) an open source leader and apparently thinks it's wrong to draw attention to patent threats against an open source project (when those threats even had an antitrust regulator concerned), which is inconsistent to put it mildly.
Needless to say you weren't going to be part of the core target audience for my app. Nor is my core target audience going to be influenced by you and the likes of you to any significant extent.
I don't have to rationalize something that was rational, but I do appreciate your answer because it allows me to clarify a couple of things, especially one that is a fundamental factual error on your end.
You can scour the archives of the Internet and talk to everyone who listened to me at a conference, and even to everyone who had private conversations with me on industry issues, but you'd never find anyone who could tell you that I ever said anything about "the SCO issue." I was absolutely stunned to read this. I mean, I've seen this claim by no-name forum trolls before: they thought since Groklaw didn't like me (or maybe because people compared some of my copyright-related work to the SCO thing), I must have been on SCO's side. But you're the first well-known person to say this though it's absolutely, positively false. I never expressed an opinion on the SCO case publicly or even privately because I, quite frankly, never even cared to look into the details. I never read a single court filing in that case. I had and still have only a very vague idea of what it was about. There were a very few situations in which people thought they could elicit some comment from me on it, and on those two or three occasions I said that I had no opinion simply for lack of information.
Please, check on Google. Try to find anything linking me to SCO. You won't find anything because there was nothing like that. Now that this has been clarified, which of the things I really did/said made you arrive at this negative opinion? If it's Oracle v. Google, I took a pro-API-copyright position more than 10 years ago, I took it during the fight against Oracle's acquisition of MySQL, and early in the Oracle v. Google case and throughout the case--and the Federal Circuit agrees, which shows I had a reason other than cash to believe so.
It does sound more than a bit self-righteous that you claim to have consistently taken the high road, but I can't contradict you on this because the things I know about your work are indeed consistent, just like I believe, however, that I've also been pretty consistent over a long period of time. As for a wager on who's been economically more successful in recent years, it would be a risky bet for you. I'm not a public company and I have NDAs with corporate clients, but I can share here what was reported about me in the German edition of the Financial Times: an hourly rate of $800 at the time, paid by many dozens of clients (most of them investment banks and hedge funds), most of whom had to pay an agency fee on top of that. When I stopped making myself available to financial services folks because it was too much of a distraction from my app development project, I actually did a call through one firm at a rate of $1,000 for one hour (plus the client paid an agency fee) and I could have done more calls at that rate but declined to, because I want to focus on real, creative work again. At least for your work as an expert witness I'm sure you charge about half of either of those rates. This has nothing to do with who's right or wrong, or who stands on higher moral ground, but it does show that my knowledge was valued by a great diversity of clients. With my app I'm sure I'll do a lot better. I won't open-source it, though. I've always been a big believer in closed-source business models, though I was involved with MySQL AB (as you might imagine, even a very small piece of the big billion-dollar payout from Sun was a nice chunk of money at the time).
While not nearly as bad as the totally inaccurate claim about SCO, I also disagree with your claim that I "took a leadership position, and later turned [my] coat." I ran a one-man show with the NoSoftwarePatents campaign. I had corporate backers, a majority of which (in terms of the number of companies as well as the percentage of financial contributions) were *not* open-source companies. I had no community backing--it was just a political alliance, an issue coalition of the kind you see in politics all the time. An issue-coalition partner does not be
There's no general answer to this because it depends on the specific circumstances. If you've seen someone else's audio editing app and you want to implement an innovative feature you first saw in that one, then I'd probably recommend very strongly to check on whether the maker of the other app has filed for a patent. If you create something totally independently, you may still be held liable for patent infringement later, but then the question is whether you actually have the resources to perform patent clearance. If you do perform clearance, you must, however, focus on what the claims--and not the titles--of potentially relevant patents cover. A patent named "Timeline display for audio waveform" could actually be very narrow. It could cover only a very particular type of display, so your own app wouldn't necessarily infringe it. But it might also be very broad, in which case it's another question whether that patent would be upheld if seriously challenged on the basis of prior art, especially prior art that was not known to the patent examiner. So I can't tell you what you should do, and I understand the question as relating to a completely hypothetical scenario anyway. I can just talk about the pro's and con's of different approaches.
Bruce, now that the discussion here has finally subsided, I want to comment on your involvement in this and I thought it was the right thing to do it here in public.
Maybe I should thank you for having discouraged people from asking questions because it saved me valuable time I got to spend on my app (I've just hired three full-time programmers and am currently interviewing others, so this project does need attention). No one paid me for this or encouraged me to this, nor do I have any reason to assume that anyone will be more likely to do business with me going forward because of this (it's actually unlikely because the people who matter to me professionally don't spend time on discussion boards of any kind). It was just that a/. guy who edited a/. op-ed of mine 10 years ago invited me to talk about Microsoft's billion-dollar Android licensing business and I didn't want to turn them down. I knew I was going to face a reasonably hostile audience and reminded/. of it.
Now, I can certainly understand that you're disappointed or, to make it sound more dramatic, feel betrayed by me. I haven't forgotten that you supported my efforts against software patents in various ways, and on my way to my computer I walked past that CNET Networks UK award for Outstanding Contribution to Software Development, which the FFII and my campaign jointly won because you, as a member of the CNET UK awards jury at the time, supported our cause and liked our work. That was in 2005, and then, in 2011, when I disclosed a then-already-ongoing working relationship with Microsoft on my blog (voluntarily; before any judge or anyone else with the authority to require me to do it asked about it), at a time when I was talking a lot about Android IP issues (patents as well as copyright) and the (limited, partial) compatibility of open sources licenses with FRAND licensing for open standards, Red Hat's dealings with patent trolls etc., you--who preferred to be dismissed by HP rather than stop criticizing Microsoft, which shows how principled you are and I admire you for it--considered me a traitor. A sellout. There's nothing difficult about it to understand. (And to make things even worse from your point of view, I'll confess to having filed for patents, PCT and immediate parallel filings in the U.S., on three inventions this year.
But this disappointment over a perceived betrayal doesn't change anything about three very important facts:
It's not as simple as the question suggests. Let me quickly explain the state of software patents in those three jurisdictions (Europe, US, NZ):
Europe and NZ have an explicit exclusion of patents on computer programs as such in their statutory laws, but they do allow patents on software-powered technical inventions. This is a very difficult line to draw. NZ lawmakers agreed that smartphones should remain patentable--but 99.9% of patentable smartphone-related inventions are effectively software patents (in terms of the innovative element being in the way the thing is programmed). In Europe, the technicity requirement has been met by software that merely takes into account the resource constraints of the machine, i.e., saves screen space, processing time, memory, bandwidth, etc.
In the U.S., everything under the sun made by man is patentable and there is no explicit exclusion of software, but abstract ideas are excluded by statutory law. The U.S. Supreme Court's recent Alice decision appears to have resulted (based on USPTO and lower court decisions in recent months) in a de facto technicity requirement, except that there isn't (yet) much of a body of case law on the details of what constitutes a technological advance (while there's a rich body of case law in Europe on this question). So far, the vast majority of patents invalidated or patent applications rejected in the post-Alice world have been business method patents, not the kinds of software patents that are really interesting from a line-drawing point of view, such as patents on software that optimizes the use of computing resources (screen space, processing time, memory, bandwidth, etc.). It could be that it's presently even harder to get certain kinds of software patented in the U.S. than in Europe because of the lack of clarity of the Alice decision; it will take some time for things to settle out, but when all is said and done, U.S. patent law will most likely still be more inclusive than European (and NZ) law.
As for legislative intervention, the most recent patent reform effort was blocked by the leadership of Senate Democrats. If the Republican Party took control of the Senate after next month's mid-term elections, patent reform could go forward again.
Thanks for this question. Estimates that patent trolls cost tens of billions of dollars may be a bit too aggressive, but the damage that patent trolls do is a serious issue and I am all for meaningful patent reform in the U.S. (where the best chance for reform is probably a Republican senate majority after the mid-term elections) and I continue to promote balanced rules of procedure for Europe's future Unified Patent Court so as to make trolling less profitable. As for startups, I honestly don't know an example of a startup that got "destroyed" by patent trolls. There may be examples, but if so, no one has ever given an example. There's no benefit to a troll in destroying a startup: they just want to make money. And with respect to startups it's important to consider that some startups do benefit from patent protection (including mine, which has filed U.S. and PCT patent applications for three inventions this year). It's very difficult to say whether the bottom line (startup innovation destroyed/discouraged by patents vs. startup innovation enabled/encouraged by patent protection) is positive or negative.
The question was polite on the surface but contains a fundamental factual error: "tenure at MySQL AB... short-lived." I became an adviser to MySQL's CEO and other executives on September 1, 2001. My advisory role ended on August 31, 2004 because I then focused on a patent policy campaign of which MySQL was a major backer (relative to company size, the most supportive one). So I seamlessly continued with MySQL, just in a different role and context. I received support from MySQL for my work on patent policy in 2004, 2005, and until the late 3rd quarter of 2006. That was more than five years after my work as an adviser started. Five years is almost an eternity in this industry, wouldn't you agree?
Also, I bought some MySQL AB shares early on and held on to them until the company was sold to Sun Microsystems in early 2008.
Then, in the second half of 2009 and the first few weeks of 2010, I was working on issues related to Oracle's acquisition of MySQL as part of Sun. That project naturally ended when the regulatory decisions had been made. It was not a project for MySQL AB anyway (MySQL AB at that point belonged to Sun, which wanted the acquisition to go through while I was fighting against it).
Based on where the case currently stands (after this year's ruling by the United States Court of Appeals for the Federal Circuit), Oracle is on the winning track with respect to API copyrightability.
How many times have you contacted news and commentary organisations to correct their description of you as a patent lawyer? How often have they made the correction?
While I track lawsuits in detail, I never kept a log that would enable me to provide a list of events as an answer to this question. If I had to testify to this under oath in court, I would be able to say that I have done this repeatedly, that corrections were made repeatedly, and that to the best of my recollection, I have contacted every news agency or publisher when I was inaccurately described as a patent attorney.
The fact that I'm not a patent attorney has certainly not prevented IP professionals and academics from finding me a useful source of news, facts, and commentary.
Why spend 3 to 4 years studying computer science just to realise at the end, that everything patentable in software has been patented (from the truly stupid, trivial to non-trivial ideas) and big firms holding the patents have been and are doing so for decades and decades!! For innovation's sake and to tell university student that they have a future in this sector, isn't it time to shorten the life of software patents or ban them all together?
Ten years ago I took the NoSoftwarePatents position. In recent years, however, I've been watching major patent disputes play out in court, and less than 10% of the assertions I watched had merit. On the one hand, this high rate of failure suggests to me that there is a fundamental problem with the system. On the other hand, it appears that bad patents can still be defeated, though it's probably harder with jury trials in the U.S. than with professional judges.
When it was clear that Judge Alsup in Oracle vs Google can program Java, how the *#*# could you still think Oracle would get its huge victory?
Based on the content of his non-copyrightability ruling, I wouldn't say it's "clear" that he knows Java very well. Almost all of the people who agreed with the outcome never cared to even read the decision, or if they did, they turned a blind eye to its factual and legal mistakes.
The United States Court of Appeals for the Federal Circuit overruled Judge Alsup. At the appellate hearing, one of the Fed. Cir. judges said that Judge Alsup had apparently gotten confused about the law. The current state of affairs is that Oracle is on the winning track re. copyrightability (I don't believe the Supreme Court will side with Google on tihs one), so I was right and people like you (and Groklaw etc.) were wrong.
Do you honestly believe that software patents do not stifle innovation?
I used to campaign against software patents, so if you had asked me that question ten years ago, I would have undoubtedly agreed with you. However, I have spent so much time in courtrooms and reading court filings and decisions over these past four years that I believe this is not a binary question. It's much more complex than that, and that's why I've adjusted my position.
This year I've filed patent applications (in the U.S. and, under the Patent Cooperation Treaty, in Europe with the option to make filings in many jurisdictions later) for three inventions of my own, so I obviously do believe that patents can also benefit little app developers--but that doesn't mean that they benefit everyone in all situations, or that across the entire software industry (from the little guys to the behemoths) software patents are net positive in terms of their effect on innovation. That's a more complicated issue.
If you are not good enough for Pamela Jones (PJ), you are not good enough for me.
I'd be profoundly worried if I was "good enough for Pamela Jones (PJ)" because in order to meet that criterion I'd have to take a legally wrong position on API copyrightability. There are obviously people who think Groklaw is higher authority than the United States Court of Appeals for the Federal Circuit, but I'll go with the Fed. Cir. any day of the week.
I won't dispute that "large chunks of the F/OSS community", as you put it, have taken issue with my work in recent years. However, this was just because I honestly and accurately highlighted inconvenient truths. For example, the fact that more than two dozen Android device makers pay Microsoft patent royalties on a piece of supposedly "free" software, and that others pay Microsoft patent royalties on their use of non-mobile Linux, is a fact regardless of whether "large chunks of the F/OSS community" like it. As I've said on Twitter, those billions of dollars of Android patent royalties that have been and continued to be paid show that Android isn't "free," though litigation results suggest that Android could have been free if every device maker had done what Motorola has been and continues to be doing: to simply defeat the infringement assertions in court and to work around the few that will ultimately be found to have merit.
My track record in predicting decisions is extremely good, and IP professionals and researchers the world over recognize it regardless of what parts of the F/OSS community think. With the greatest respect for the F/OSS community, I wouldn't want it to be the other way round. And to be perfectly forthright, to me those who think PJ ever proved me wrong on anything are pathetically clueless, unbelievably naive, totally brainwashed, or a combination of all of the foregoing. On the single most important issue, API copyrightability (which relates to Oracle v. Google as well as the Linux-kernel-headers-in-Android issue), the appeals court said exactly what I had been saying for years, and the opposite of what PJ and her brainwashed followers believed. (I'm pretty sure the Supreme Court won't put Google back on the winning track with respect to copyrightability.)
The idea of this online interview was to discuss smartphone patent issues involving major players (such as the ones mentioned at the top), but I'll respond to some of these questions anyway.
As an independent software developer, how can I avoid getting dragged into a patent lawsuit?
There's too many patents out there to ever be sure that you won't ever be sued. For example, none of the little app developers sued by Lodsys over in-app purchasing appeared to even have known about Lodsys's patents, and Apple argued that it was already licensed to those patents (because they once belonged to Intellectual Ventures).
That said, there can also be cases in which independent developers infringe because they see an interesting invention in someone else's product and decide to implement it in their own product(s) without a license.
How can I leverage my rights to ensure others aren't exploiting my patents?
This depends on how much of an effort you are willing and able to make. If direct competitors infringe your patents, chances are you will find out sooner or later. Then you may (but only based on professional legal advice) consider putting them on notice of any infringements identified.
As a middle management cog in a large organization, how can I impress the importance of patents on the executive leadership?
Large organizations tend to be pretty patent-savvy, at least in innovative industries.
How can I work with our console on ensuring that our creations are correctly patented?
The first thing you can do is provide precise descriptions of your inventions and how they compare to the prior art known to you. Thereafter you can cooperatively answer their follow-up questions.
And what steps should I be taking to minimize our risk of being sued?
This is basically another version of the first question.
To be perfectly honest, if I had anticipated what my blog was ultimately going to focus on (smartphone IP disputes), I'd have called it "Mobile Patents" or "Smartphone Patents", not "FOSS Patents." But by the time I knew, it was already too well-known under its original name.
I actually agree the name is an oxymoron, but you may not have applied the same definition of "oxymoron": it means that two terms appear contradictory -- not that they necessarily are contradictory. In this case, they do appear contradictory (FOSS philosophy is irreconcilable with patent protection) but they are not in reality, with 27 companies paying Microsoft royalties on Android devices, for example. The name was brutally realistic. Let's face it, even Red Hat has paid off a number of patent trolls.
Time and time again your forecasts about legal disputes have been falsified in court.
Quite the contrary. The Federal Circuit reversed Judge Alsup's grossly erroneous non-copyrightability ruling, so I got this one right and most others got it wrong.
What Halo1 wrote about FFII and me having been independent from each other (and having had a cooperation that was everything but easy) is true. As for companies that supported my efforts, MySQL made the greatest effort relative to company size, but the largest supporter was a German Internet company (ISP, freemail, web hosting etc.) named 1&1. Red Hat gave me the least support and only for the shortest period of time of all companies that supported me.
You're entitled to your opinion on this, but it is not shared by some very credible people in the intellectual property universe:
- Managing Intellectual Property (ManagingIP) magazine has put me on its annual list of the top 50 most influential people in IP five times so far (2005, 2006, 2012, 2013, 2014).
- IAM (Intellectual Asset Management) magazine named me one of the IP personalities of 2011 (and had me on some other ranking that I can't find at the moment).
- Canadian IP lawyer Barry Sookman conducted some research on the leading IP and tech law blogs. According to his analysis (published in early 2013), my FOSS Patents blog was the #3 U.S. patent law blog at the time.
- I have received invitations to speak at conferences organized by universities and around the globe (in the U.S., literally from California to New York) and at commercial conferences in the U.S., different European countries, different Asian countries, and New Zealand. Only for logistical reasons I have had to politely decline except for invitations in my home region. I have spoken at the renowned Max Planck Institute for IP and Competition Law in Munich, at the Munich University of Technology (three times already), and the University of Bayreuth, where I shared a panel with a judge from the patent-specialized division of Germany's equivalent of the U.S. Supreme Court (see page 2 of the conference program), who is also widely expected to become one of the top-ranking judges of Europe's future Unified Patent Court. This incredibly well-respected patent judge and I both addressed the same topic, from our different vantage points, and had a panel discussion with questions from the audience and our moderator, a Switzerland-based patent law professor.
- I could give more examples, but suffice it to say that any of the above references easily outweighs whatever a blog like Groklaw may have written about me over the years.
I've become accustomed to an ever-growing list of companies someone somewhere thinks I'm beholden to. Years ago there was speculation in the Groklaw discussion forum about Apple paying me and earlier this year an Apple blog referred to speculation elsewhere on the Internet (and supposedly at Apple HQ in Cupertino) about an affiliation with the Android camp. I've addressed the disclosure question in this part of the discussion. I take it as a great compliment that opposing camps (Apple fans on the one hand, Android/open source fans on the other hand) simultaneously allege a conflict of interest.
I know that I only write what I believe in. There was a time when Apple and Microsoft had scored a number of (temporary) wins in court against Android, but then came a time when most of those wins eroded (patents got invalidated etc.) and when whatever little was left turned out not to be forceful, so I had to adjust my position because anything less would have been unreasonable. At the beginning of this month I published my analysis of what happened to 222 smartphone patent assertions (most of them against Android) by Apple, Microsoft and three other major litigants, with less than 10% having proved to have merit. The facts speak for themselves.
The most absurd thing is, however, that people still say Groklaw proved me wrong on the Oracle case when the current state of affairs is that the appeals court threw out Judge Alsup's grossly erroneous non-copyrightability ruling for reasons my blog had already explained years ago. Even my toughest critics would have to acknowledge that I was right (and they and Groklaw were wrong) if only they had a scintilla of rationality.
How does API copyrightability "promote the Progress of Science and useful Arts"? Or, how does it help to deter interoperability?
The progress of science and useful arts is promoted by a balanced intellectual property regime that adds the fuel of interest to the fire of genius while ensuring that incremental innovation can occur and that competition is healthy.
If interoperability is the goal (and it's a very important one for sure), non-copyrightability is not the only and especially not the best means to promote it. Copyrightability is the first and not the last step of the analysis. Highly-creative program code is copyrightable but, depending on the specifics of a case, using APIs may be considered fair use. Alternatively, someone wielding too much market power based on ownership of APIs may have to grant a (compulsory) license on fair, reasonable and non-discriminatory (FRAND) terms. Fair use and a compulsory license involve a case-specific analysis of all the relevant facts and circumstances. If something is simply declared non-copyrightable, the point of a case-by-case analysis is never reached.
Somehow the quoting didn't work in the parent post but I guess it's easy for everyone to see which three things I quoted from the post above and then responded to.
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Bruce, you say you were anything but wrong about me, after you claimed further above that I was hostile to open source "all the way back to the SCO issue", a dispute that began in 2003 and ended in March 2010, only to claim that a totally unrelated issue (mainframe patents) I commented on in April 2010 was a way to lend credence to SCO's arguments. "All the way back to the SCO case" is not "a week after the final nail in the coffin of SCO's case, on a matter involving patents, though patents were never at issue in any SCO case." And now you still can't just apologize for a false allegation. I'm sorry for you, really.
It's your fault, not mine, that you've been exposed here in this discussion as someone who is not just emotional but also very unreasonable. And it's easy for the world to see that you said something that was baseless and then tried to justify it with a totally baseless theory.
1) In response to my first mesage to you here, you wrote: "You also made yourself a paid voice that was often hostile to Free Software, all the way back to the SCO issue." I repeat the last part: "all the way back to the SCO issue".
2) I then pointed out that I never ever, not even privately, expressed an opinion on any of the issues in the SCO case because I never cared enough about it to take a close look.
3) You then mentioned the IBM patent threats against an open-source mainframe emulator, which I first blogged about on April 6, 2010 and claimed the following: "It was a way to lend credence to IBM [which you then corrected to mean SCO] and MS arguments during the SCO issue. To state otherwise is deceptive, perhaps even self-deceptive." However, according to Wikipedia, "[t]he SCO Group allege[d] that its license agreements with IBM means that source code that IBM wrote and donated to be incorporated into Linux was added in violation of SCO's contractual rights." This has nothing at all to do with IBM theatening an open-source project with patents. On that Wikipedia page the only kinds of rights that are mentioned are copyrights and contractual rights, and it says: "SCO has not claimed patent infringement"
So Instead of just admitting that you accused me of a connection (SCO) that never existed because I never said anything about that case, you're now actually saying that someone drawing attention to an open source PATENT issue in April 2010 was trying to lend credence to DIFFERENT parties' arguments in a COPYRIGHT and CONTRACT case in which no patent was ever at issue. That's already bizarre, but it's even worse in chronological terms. According to Wikipedia, summary judgment had issued against SCO in 2007 (which suggests the judge didn't believe SCO had any reasonable point), the appeals court (in 2009) had reversed in part and remanded for a trial, and "[o]n March 30, 2010, following a jury trial, Novell, and not The SCO Group, was unanimously found to be the owner of the UNIX and UnixWare copyrights." That was exactly a week before I first blogged about the IBM mainframe patent issue. So apart from a patent issue being factually unrelated to a copyright/contract issue, it would also have been to late.
Why don't you just admit now that you were wrong about me and SCO? Everyone who reads this exchange of arguments here can say that I'm right. If you at least conceded that you made a mistake, you could minimize the damage to your credibility.
Your emotions lead you to speculate and this results in absurd claims and theories. The problem is you're digging yourself, not in the eyes of unreasonable people but in the eyes of rational people, a hole that gets deeper and deeper.
This thing about the IBM mainframe issue having had any connection with the SCO case is a wild conspiracy theory and a non sequitur. Even though I didn't follow the SCO case in detail, I believed, with the very limited information I had, it was already pretty much over when I ran my campaign against software patents (which was, at the time, mentioned by Groklaw). I certainly believed so in 2010, when the IBM story came up.
So I have a hard time seeing why SCO (at a time when it had apparently already lost) and Microsoft (?) could have achieved any particular SCO-related objective in connection with a mainframe antitrust issue. There was an issue in the mainframe context--otherwise the European Commission wouldn't have opened formal investigations (which isn't the same as a prohibition decision, but there is a considerable hurdle because the Commission gets so many complaints all the time and investigates only a limited number of them).
But the fact that you apparently have no qualms about IBM having threatened patent assertions against an open-source mainframe emulator is now the first indication I've seen that your "high road" is self-deception.
Your theory about "guilt" is similarly wild and baseless. It has nothing to do with guilty feelings if one doesn't want untruths and misconceptions to be spread. My connection with SCO is an untruth. My taking an open source leadership position is a misconception at best and an untruth at worst.
While I criticized IBM's patent threats against an open source project because I previously criticized their open source patent pledges, I'm not generally against them and actually had a very friendly meeting with an IBM executive earlier this year in Munich.
As for credibility, I know where I have plenty of it, and I've mentioned some of it here. Based on how you argued in this discussion here, I consider it much less desirable than before to have credibility in your eyes--in the eyes of a self-righteous guy who is (unlike what I ever was or tried to be) an open source leader and apparently thinks it's wrong to draw attention to patent threats against an open source project (when those threats even had an antitrust regulator concerned), which is inconsistent to put it mildly.
Needless to say you weren't going to be part of the core target audience for my app. Nor is my core target audience going to be influenced by you and the likes of you to any significant extent.
I don't have to rationalize something that was rational, but I do appreciate your answer because it allows me to clarify a couple of things, especially one that is a fundamental factual error on your end.
You can scour the archives of the Internet and talk to everyone who listened to me at a conference, and even to everyone who had private conversations with me on industry issues, but you'd never find anyone who could tell you that I ever said anything about "the SCO issue." I was absolutely stunned to read this. I mean, I've seen this claim by no-name forum trolls before: they thought since Groklaw didn't like me (or maybe because people compared some of my copyright-related work to the SCO thing), I must have been on SCO's side. But you're the first well-known person to say this though it's absolutely, positively false. I never expressed an opinion on the SCO case publicly or even privately because I, quite frankly, never even cared to look into the details. I never read a single court filing in that case. I had and still have only a very vague idea of what it was about. There were a very few situations in which people thought they could elicit some comment from me on it, and on those two or three occasions I said that I had no opinion simply for lack of information.
Please, check on Google. Try to find anything linking me to SCO. You won't find anything because there was nothing like that. Now that this has been clarified, which of the things I really did/said made you arrive at this negative opinion? If it's Oracle v. Google, I took a pro-API-copyright position more than 10 years ago, I took it during the fight against Oracle's acquisition of MySQL, and early in the Oracle v. Google case and throughout the case--and the Federal Circuit agrees, which shows I had a reason other than cash to believe so.
It does sound more than a bit self-righteous that you claim to have consistently taken the high road, but I can't contradict you on this because the things I know about your work are indeed consistent, just like I believe, however, that I've also been pretty consistent over a long period of time. As for a wager on who's been economically more successful in recent years, it would be a risky bet for you. I'm not a public company and I have NDAs with corporate clients, but I can share here what was reported about me in the German edition of the Financial Times: an hourly rate of $800 at the time, paid by many dozens of clients (most of them investment banks and hedge funds), most of whom had to pay an agency fee on top of that. When I stopped making myself available to financial services folks because it was too much of a distraction from my app development project, I actually did a call through one firm at a rate of $1,000 for one hour (plus the client paid an agency fee) and I could have done more calls at that rate but declined to, because I want to focus on real, creative work again. At least for your work as an expert witness I'm sure you charge about half of either of those rates. This has nothing to do with who's right or wrong, or who stands on higher moral ground, but it does show that my knowledge was valued by a great diversity of clients. With my app I'm sure I'll do a lot better. I won't open-source it, though. I've always been a big believer in closed-source business models, though I was involved with MySQL AB (as you might imagine, even a very small piece of the big billion-dollar payout from Sun was a nice chunk of money at the time).
While not nearly as bad as the totally inaccurate claim about SCO, I also disagree with your claim that I "took a leadership position, and later turned [my] coat." I ran a one-man show with the NoSoftwarePatents campaign. I had corporate backers, a majority of which (in terms of the number of companies as well as the percentage of financial contributions) were *not* open-source companies. I had no community backing--it was just a political alliance, an issue coalition of the kind you see in politics all the time. An issue-coalition partner does not be
There's no general answer to this because it depends on the specific circumstances. If you've seen someone else's audio editing app and you want to implement an innovative feature you first saw in that one, then I'd probably recommend very strongly to check on whether the maker of the other app has filed for a patent. If you create something totally independently, you may still be held liable for patent infringement later, but then the question is whether you actually have the resources to perform patent clearance. If you do perform clearance, you must, however, focus on what the claims--and not the titles--of potentially relevant patents cover. A patent named "Timeline display for audio waveform" could actually be very narrow. It could cover only a very particular type of display, so your own app wouldn't necessarily infringe it. But it might also be very broad, in which case it's another question whether that patent would be upheld if seriously challenged on the basis of prior art, especially prior art that was not known to the patent examiner. So I can't tell you what you should do, and I understand the question as relating to a completely hypothetical scenario anyway. I can just talk about the pro's and con's of different approaches.
Bruce, now that the discussion here has finally subsided, I want to comment on your involvement in this and I thought it was the right thing to do it here in public.
Maybe I should thank you for having discouraged people from asking questions because it saved me valuable time I got to spend on my app (I've just hired three full-time programmers and am currently interviewing others, so this project does need attention). No one paid me for this or encouraged me to this, nor do I have any reason to assume that anyone will be more likely to do business with me going forward because of this (it's actually unlikely because the people who matter to me professionally don't spend time on discussion boards of any kind). It was just that a /. guy who edited a /. op-ed of mine 10 years ago invited me to talk about Microsoft's billion-dollar Android licensing business and I didn't want to turn them down. I knew I was going to face a reasonably hostile audience and reminded /. of it.
Now, I can certainly understand that you're disappointed or, to make it sound more dramatic, feel betrayed by me. I haven't forgotten that you supported my efforts against software patents in various ways, and on my way to my computer I walked past that CNET Networks UK award for Outstanding Contribution to Software Development, which the FFII and my campaign jointly won because you, as a member of the CNET UK awards jury at the time, supported our cause and liked our work. That was in 2005, and then, in 2011, when I disclosed a then-already-ongoing working relationship with Microsoft on my blog (voluntarily; before any judge or anyone else with the authority to require me to do it asked about it), at a time when I was talking a lot about Android IP issues (patents as well as copyright) and the (limited, partial) compatibility of open sources licenses with FRAND licensing for open standards, Red Hat's dealings with patent trolls etc., you--who preferred to be dismissed by HP rather than stop criticizing Microsoft, which shows how principled you are and I admire you for it--considered me a traitor. A sellout. There's nothing difficult about it to understand. (And to make things even worse from your point of view, I'll confess to having filed for patents, PCT and immediate parallel filings in the U.S., on three inventions this year.
But this disappointment over a perceived betrayal doesn't change anything about three very important facts:
1) In reversely chronological order, let me draw your attention to the fact that I have throughout those years and especially this year done some hard and effective work on things we very likely agree on. In March, I brought to light, ahead of a key Apple v. Samsung (and Google, which paid part of Samsung's legal defense) trial, the irrationality of Apple's damages claim over 5 patents. There was no Groklaw or anyone else around to do that job. I did it. The following month I urged Apple and Microsoft not to act against software developer interests through their latest pro-patent lobby group. And this month I published an analysis of 222 smartphone patent assertions by Apple, Microsoft, Motorola, Nokia, and Samsung, less than 10% of which had merit based on final or latest preliminary results. None of all the people who criticized software patents and other issues with patents ever showed up at the countless (!) smartphone patent trials I attended. None of them ever made any effort to draw attention to what was happening there and to the political conclusions that could be drawn from the game that was being played, though the "smartphone patent wars" would have been a splendid opportunity to highlight certain issues to policy makers (for example, most of the asserted patents
It's not as simple as the question suggests. Let me quickly explain the state of software patents in those three jurisdictions (Europe, US, NZ):
Europe and NZ have an explicit exclusion of patents on computer programs as such in their statutory laws, but they do allow patents on software-powered technical inventions. This is a very difficult line to draw. NZ lawmakers agreed that smartphones should remain patentable--but 99.9% of patentable smartphone-related inventions are effectively software patents (in terms of the innovative element being in the way the thing is programmed). In Europe, the technicity requirement has been met by software that merely takes into account the resource constraints of the machine, i.e., saves screen space, processing time, memory, bandwidth, etc.
In the U.S., everything under the sun made by man is patentable and there is no explicit exclusion of software, but abstract ideas are excluded by statutory law. The U.S. Supreme Court's recent Alice decision appears to have resulted (based on USPTO and lower court decisions in recent months) in a de facto technicity requirement, except that there isn't (yet) much of a body of case law on the details of what constitutes a technological advance (while there's a rich body of case law in Europe on this question). So far, the vast majority of patents invalidated or patent applications rejected in the post-Alice world have been business method patents, not the kinds of software patents that are really interesting from a line-drawing point of view, such as patents on software that optimizes the use of computing resources (screen space, processing time, memory, bandwidth, etc.). It could be that it's presently even harder to get certain kinds of software patented in the U.S. than in Europe because of the lack of clarity of the Alice decision; it will take some time for things to settle out, but when all is said and done, U.S. patent law will most likely still be more inclusive than European (and NZ) law.
As for legislative intervention, the most recent patent reform effort was blocked by the leadership of Senate Democrats. If the Republican Party took control of the Senate after next month's mid-term elections, patent reform could go forward again.
Thanks for this question. Estimates that patent trolls cost tens of billions of dollars may be a bit too aggressive, but the damage that patent trolls do is a serious issue and I am all for meaningful patent reform in the U.S. (where the best chance for reform is probably a Republican senate majority after the mid-term elections) and I continue to promote balanced rules of procedure for Europe's future Unified Patent Court so as to make trolling less profitable. As for startups, I honestly don't know an example of a startup that got "destroyed" by patent trolls. There may be examples, but if so, no one has ever given an example. There's no benefit to a troll in destroying a startup: they just want to make money. And with respect to startups it's important to consider that some startups do benefit from patent protection (including mine, which has filed U.S. and PCT patent applications for three inventions this year). It's very difficult to say whether the bottom line (startup innovation destroyed/discouraged by patents vs. startup innovation enabled/encouraged by patent protection) is positive or negative.
The question was polite on the surface but contains a fundamental factual error: "tenure at MySQL AB ... short-lived." I became an adviser to MySQL's CEO and other executives on September 1, 2001. My advisory role ended on August 31, 2004 because I then focused on a patent policy campaign of which MySQL was a major backer (relative to company size, the most supportive one). So I seamlessly continued with MySQL, just in a different role and context. I received support from MySQL for my work on patent policy in 2004, 2005, and until the late 3rd quarter of 2006. That was more than five years after my work as an adviser started. Five years is almost an eternity in this industry, wouldn't you agree?
Also, I bought some MySQL AB shares early on and held on to them until the company was sold to Sun Microsystems in early 2008.
Then, in the second half of 2009 and the first few weeks of 2010, I was working on issues related to Oracle's acquisition of MySQL as part of Sun. That project naturally ended when the regulatory decisions had been made. It was not a project for MySQL AB anyway (MySQL AB at that point belonged to Sun, which wanted the acquisition to go through while I was fighting against it).
Based on where the case currently stands (after this year's ruling by the United States Court of Appeals for the Federal Circuit), Oracle is on the winning track with respect to API copyrightability.
I've answered the disclosure question elsewhere in this discussion. As for "anti-open source pro-patent scaremongering" please check out this analysis of 222 smartphone patent assertions (most them against Android), less than 10% of which had merit.
How many times have you contacted news and commentary organisations to correct their description of you as a patent lawyer? How often have they made the correction?
While I track lawsuits in detail, I never kept a log that would enable me to provide a list of events as an answer to this question. If I had to testify to this under oath in court, I would be able to say that I have done this repeatedly, that corrections were made repeatedly, and that to the best of my recollection, I have contacted every news agency or publisher when I was inaccurately described as a patent attorney.
The fact that I'm not a patent attorney has certainly not prevented IP professionals and academics from finding me a useful source of news, facts, and commentary.
Why spend 3 to 4 years studying computer science just to realise at the end, that everything patentable in software has been patented (from the truly stupid, trivial to non-trivial ideas) and big firms holding the patents have been and are doing so for decades and decades!! For innovation's sake and to tell university student that they have a future in this sector, isn't it time to shorten the life of software patents or ban them all together?
Ten years ago I took the NoSoftwarePatents position. In recent years, however, I've been watching major patent disputes play out in court, and less than 10% of the assertions I watched had merit. On the one hand, this high rate of failure suggests to me that there is a fundamental problem with the system. On the other hand, it appears that bad patents can still be defeated, though it's probably harder with jury trials in the U.S. than with professional judges.
When it was clear that Judge Alsup in Oracle vs Google can program Java, how the *#*# could you still think Oracle would get its huge victory?
Based on the content of his non-copyrightability ruling, I wouldn't say it's "clear" that he knows Java very well. Almost all of the people who agreed with the outcome never cared to even read the decision, or if they did, they turned a blind eye to its factual and legal mistakes.
The United States Court of Appeals for the Federal Circuit overruled Judge Alsup. At the appellate hearing, one of the Fed. Cir. judges said that Judge Alsup had apparently gotten confused about the law. The current state of affairs is that Oracle is on the winning track re. copyrightability (I don't believe the Supreme Court will side with Google on tihs one), so I was right and people like you (and Groklaw etc.) were wrong.
Do you honestly believe that software patents do not stifle innovation?
I used to campaign against software patents, so if you had asked me that question ten years ago, I would have undoubtedly agreed with you. However, I have spent so much time in courtrooms and reading court filings and decisions over these past four years that I believe this is not a binary question. It's much more complex than that, and that's why I've adjusted my position.
This year I've filed patent applications (in the U.S. and, under the Patent Cooperation Treaty, in Europe with the option to make filings in many jurisdictions later) for three inventions of my own, so I obviously do believe that patents can also benefit little app developers--but that doesn't mean that they benefit everyone in all situations, or that across the entire software industry (from the little guys to the behemoths) software patents are net positive in terms of their effect on innovation. That's a more complicated issue.
If you are not good enough for Pamela Jones (PJ), you are not good enough for me.
I'd be profoundly worried if I was "good enough for Pamela Jones (PJ)" because in order to meet that criterion I'd have to take a legally wrong position on API copyrightability. There are obviously people who think Groklaw is higher authority than the United States Court of Appeals for the Federal Circuit, but I'll go with the Fed. Cir. any day of the week.
I won't dispute that "large chunks of the F/OSS community", as you put it, have taken issue with my work in recent years. However, this was just because I honestly and accurately highlighted inconvenient truths. For example, the fact that more than two dozen Android device makers pay Microsoft patent royalties on a piece of supposedly "free" software, and that others pay Microsoft patent royalties on their use of non-mobile Linux, is a fact regardless of whether "large chunks of the F/OSS community" like it. As I've said on Twitter, those billions of dollars of Android patent royalties that have been and continued to be paid show that Android isn't "free," though litigation results suggest that Android could have been free if every device maker had done what Motorola has been and continues to be doing: to simply defeat the infringement assertions in court and to work around the few that will ultimately be found to have merit.
My track record in predicting decisions is extremely good, and IP professionals and researchers the world over recognize it regardless of what parts of the F/OSS community think. With the greatest respect for the F/OSS community, I wouldn't want it to be the other way round. And to be perfectly forthright, to me those who think PJ ever proved me wrong on anything are pathetically clueless, unbelievably naive, totally brainwashed, or a combination of all of the foregoing. On the single most important issue, API copyrightability (which relates to Oracle v. Google as well as the Linux-kernel-headers-in-Android issue), the appeals court said exactly what I had been saying for years, and the opposite of what PJ and her brainwashed followers believed. (I'm pretty sure the Supreme Court won't put Google back on the winning track with respect to copyrightability.)
The idea of this online interview was to discuss smartphone patent issues involving major players (such as the ones mentioned at the top), but I'll respond to some of these questions anyway.
As an independent software developer, how can I avoid getting dragged into a patent lawsuit?
There's too many patents out there to ever be sure that you won't ever be sued. For example, none of the little app developers sued by Lodsys over in-app purchasing appeared to even have known about Lodsys's patents, and Apple argued that it was already licensed to those patents (because they once belonged to Intellectual Ventures).
That said, there can also be cases in which independent developers infringe because they see an interesting invention in someone else's product and decide to implement it in their own product(s) without a license.
How can I leverage my rights to ensure others aren't exploiting my patents?
This depends on how much of an effort you are willing and able to make. If direct competitors infringe your patents, chances are you will find out sooner or later. Then you may (but only based on professional legal advice) consider putting them on notice of any infringements identified.
As a middle management cog in a large organization, how can I impress the importance of patents on the executive leadership?
Large organizations tend to be pretty patent-savvy, at least in innovative industries.
How can I work with our console on ensuring that our creations are correctly patented?
The first thing you can do is provide precise descriptions of your inventions and how they compare to the prior art known to you. Thereafter you can cooperatively answer their follow-up questions.
And what steps should I be taking to minimize our risk of being sued?
This is basically another version of the first question.
To be perfectly honest, if I had anticipated what my blog was ultimately going to focus on (smartphone IP disputes), I'd have called it "Mobile Patents" or "Smartphone Patents", not "FOSS Patents." But by the time I knew, it was already too well-known under its original name.
I actually agree the name is an oxymoron, but you may not have applied the same definition of "oxymoron": it means that two terms appear contradictory -- not that they necessarily are contradictory. In this case, they do appear contradictory (FOSS philosophy is irreconcilable with patent protection) but they are not in reality, with 27 companies paying Microsoft royalties on Android devices, for example. The name was brutally realistic. Let's face it, even Red Hat has paid off a number of patent trolls.
Time and time again your forecasts about legal disputes have been falsified in court.
Quite the contrary. The Federal Circuit reversed Judge Alsup's grossly erroneous non-copyrightability ruling, so I got this one right and most others got it wrong.
I was demonstrably spot-on on five of the six most important smartphone IP decisions that came down in 2014.
What Halo1 wrote about FFII and me having been independent from each other (and having had a cooperation that was everything but easy) is true. As for companies that supported my efforts, MySQL made the greatest effort relative to company size, but the largest supporter was a German Internet company (ISP, freemail, web hosting etc.) named 1&1. Red Hat gave me the least support and only for the shortest period of time of all companies that supported me.
He was never a valuable source for anything [...]
You're entitled to your opinion on this, but it is not shared by some very credible people in the intellectual property universe:
- Managing Intellectual Property (ManagingIP) magazine has put me on its annual list of the top 50 most influential people in IP five times so far (2005, 2006, 2012, 2013, 2014).
- IAM (Intellectual Asset Management) magazine named me one of the IP personalities of 2011 (and had me on some other ranking that I can't find at the moment).
- Canadian IP lawyer Barry Sookman conducted some research on the leading IP and tech law blogs. According to his analysis (published in early 2013), my FOSS Patents blog was the #3 U.S. patent law blog at the time.
- I have received invitations to speak at conferences organized by universities and around the globe (in the U.S., literally from California to New York) and at commercial conferences in the U.S., different European countries, different Asian countries, and New Zealand. Only for logistical reasons I have had to politely decline except for invitations in my home region. I have spoken at the renowned Max Planck Institute for IP and Competition Law in Munich, at the Munich University of Technology (three times already), and the University of Bayreuth, where I shared a panel with a judge from the patent-specialized division of Germany's equivalent of the U.S. Supreme Court (see page 2 of the conference program), who is also widely expected to become one of the top-ranking judges of Europe's future Unified Patent Court. This incredibly well-respected patent judge and I both addressed the same topic, from our different vantage points, and had a panel discussion with questions from the audience and our moderator, a Switzerland-based patent law professor.
- Professor Thomas Cotter (University of Minnesota), an expert in comparative patent remedies (he travels the world to research differences between national patent laws), wrote this post about the significance of FOSS Patents earlier this year. Professor Cotter's independence is underscored by the fact that he has in recent years signed amicus curiae briefs supporting a core Apple position (on FRAND) and opposing a core Apple position (on design patent remedies).
- I could give more examples, but suffice it to say that any of the above references easily outweighs whatever a blog like Groklaw may have written about me over the years.
Add Google the the list
I've become accustomed to an ever-growing list of companies someone somewhere thinks I'm beholden to. Years ago there was speculation in the Groklaw discussion forum about Apple paying me and earlier this year an Apple blog referred to speculation elsewhere on the Internet (and supposedly at Apple HQ in Cupertino) about an affiliation with the Android camp. I've addressed the disclosure question in this part of the discussion. I take it as a great compliment that opposing camps (Apple fans on the one hand, Android/open source fans on the other hand) simultaneously allege a conflict of interest.
I know that I only write what I believe in. There was a time when Apple and Microsoft had scored a number of (temporary) wins in court against Android, but then came a time when most of those wins eroded (patents got invalidated etc.) and when whatever little was left turned out not to be forceful, so I had to adjust my position because anything less would have been unreasonable. At the beginning of this month I published my analysis of what happened to 222 smartphone patent assertions (most of them against Android) by Apple, Microsoft and three other major litigants, with less than 10% having proved to have merit. The facts speak for themselves.
The most absurd thing is, however, that people still say Groklaw proved me wrong on the Oracle case when the current state of affairs is that the appeals court threw out Judge Alsup's grossly erroneous non-copyrightability ruling for reasons my blog had already explained years ago. Even my toughest critics would have to acknowledge that I was right (and they and Groklaw were wrong) if only they had a scintilla of rationality.
How does API copyrightability "promote the Progress of Science and useful Arts"? Or, how does it help to deter interoperability?
The progress of science and useful arts is promoted by a balanced intellectual property regime that adds the fuel of interest to the fire of genius while ensuring that incremental innovation can occur and that competition is healthy.
If interoperability is the goal (and it's a very important one for sure), non-copyrightability is not the only and especially not the best means to promote it. Copyrightability is the first and not the last step of the analysis. Highly-creative program code is copyrightable but, depending on the specifics of a case, using APIs may be considered fair use. Alternatively, someone wielding too much market power based on ownership of APIs may have to grant a (compulsory) license on fair, reasonable and non-discriminatory (FRAND) terms. Fair use and a compulsory license involve a case-specific analysis of all the relevant facts and circumstances. If something is simply declared non-copyrightable, the point of a case-by-case analysis is never reached.
Somehow the quoting didn't work in the parent post but I guess it's easy for everyone to see which three things I quoted from the post above and then responded to.