> Most relevant to this case is the merger doctrine. Ideas that can be expressed in only a small number of ways are not copyrightable.
The CC's opinion is of interest here:
> We further find that the district court erred in focusing its merger analysis on the options available to Google at the time of copying. It is well-established that copyrightability and the scope of protectable activity are to be evaluated at the time of creation, not at the time of infringement. See Apple Computer, Inc. v. Formula Int'l, Inc., 725 F.2d 521, 524 (9th Cir.1984) (quoting National Commission on New Technological Uses of Copyrighted Works, Final Report at 21 (1979) ("CONTU Report") (recognizing that the Copyright Act was designed "to protect all works of authorship from the moment of their fixation in any tangible medium of expression")). The focus is, therefore, on the options that were available to Sun/Oracle at the time it created the API packages. Of course, once Sun/Oracle created "java.lang.Math.max," programmers who want to use that particular package have to call it by that name. But, as the court acknowledged, nothing prevented Google from writing its own declaring code, along with its own implementing code, to achieve the same result. In such circumstances, the chosen expression simply does not merge with the idea being expressed.[7]
> copyright misuse
Inoperability with customers who have decided to use a service or product or lock-in due to said inoperability itself does not necessarily make the provider of the original service a monopoly.
Interoperability arguments have relevance in fair-use, but the courts have yet to determine if Google has a right to the APIs under fair use. Google and others may be entitled to the APIs under fair use, but the CC has determined that the SSO of APIs are copyrightable.
And fair use is yet another can of uncertainty, since usurpation of market share counts negatively to one's case for fair use.
====
In the case of APIs, a competing service can create a functionally identical competing API, but differently structured and organized and named, and then provide a competitor2us.sh script to help their customers migrate.
Note that copyright misuse is a separate doctrine from fair use, and unlike fair use it is not effected by any usurpation of market share.
That said, I think fair use is more likely to apply than copyright misuse in this case. I just brought it up as one way that the judiciary is empowered to be lenient in their judgment on copyright infringement because of compatibility and lock-in.
The CC's opinion is of interest here:
> We further find that the district court erred in focusing its merger analysis on the options available to Google at the time of copying. It is well-established that copyrightability and the scope of protectable activity are to be evaluated at the time of creation, not at the time of infringement. See Apple Computer, Inc. v. Formula Int'l, Inc., 725 F.2d 521, 524 (9th Cir.1984) (quoting National Commission on New Technological Uses of Copyrighted Works, Final Report at 21 (1979) ("CONTU Report") (recognizing that the Copyright Act was designed "to protect all works of authorship from the moment of their fixation in any tangible medium of expression")). The focus is, therefore, on the options that were available to Sun/Oracle at the time it created the API packages. Of course, once Sun/Oracle created "java.lang.Math.max," programmers who want to use that particular package have to call it by that name. But, as the court acknowledged, nothing prevented Google from writing its own declaring code, along with its own implementing code, to achieve the same result. In such circumstances, the chosen expression simply does not merge with the idea being expressed.[7]
> copyright misuse
Inoperability with customers who have decided to use a service or product or lock-in due to said inoperability itself does not necessarily make the provider of the original service a monopoly.
Interoperability arguments have relevance in fair-use, but the courts have yet to determine if Google has a right to the APIs under fair use. Google and others may be entitled to the APIs under fair use, but the CC has determined that the SSO of APIs are copyrightable.
And fair use is yet another can of uncertainty, since usurpation of market share counts negatively to one's case for fair use.
====
In the case of APIs, a competing service can create a functionally identical competing API, but differently structured and organized and named, and then provide a competitor2us.sh script to help their customers migrate.