Should APIs be copyrightable?

Posted on by Sam Posted in Law | Comments Off on Should APIs be copyrightable?

This summer, I had been following the Oracle v. Google case since last year where Oracle sued Google for infringing on its copyright of over 37 Java APIs (Application Programming Interfaces).  While an American case,  Justice Alsup ruled that the Java APIs were not copyrightable.  Justice Alsup stated:

So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical. Under the rules of Java, they must be identical to declare a method specifying the same functionality — even when the implementation is different. When there is only one way to express an idea or function, then everyone is free to do so and no one can monopolize that expression. And, while the Android method and class names could have been different from the names of their counterparts in Java and still have worked, copyright protection never extends to names or short phrases as a matter of law.

As a former engineer at BlackBerry, this decision sits uneasy with me — not from a policy perspective, but from an application of law perspective. I’ll explain why.  The essential aspects of copyright law in this case as follows: (1) Copyright exists at the moment of creation; (2) one can only copyright an expression of idea, but not the idea itself; (3) an exception (“Merger Doctrine”) may exist if there is only one way to express an idea, in such a scenario, the creative work is not copyrightable.

Since the Java APIs are undoubtedly an original creative endeavour and an expression of a programmer’s idea, Justice Alsup is relying on the merger doctrine, and the fact that copyright APIs are too short. But something isn’t right. Google did not have to rely on the Java APIs to express their idea — that is, to develop Java platform/applications. They could have used the C language APIs, the C++ Language APIs, Python Language APIs, or any number of other language APIs to do so.

Then, with respect to Justice Alsup’s remark that copyright protection never extends to short phrases, APIs are a collection of short phrases that work in harmony. There must be consistency of design in order for the APIs to be used intuitively by any software developer. Taken as a whole, the Java API as a collective is not short by any stretch.

Alas, this spring, the Electronic Frontier Foundation submitted an amicus brief to the courts, expressing concern that APIs could be copyrightable. Understandably this will impede innovation. I buy the policy argument; it has merit. But I still maintain the decision was an erroneous application of the law.  To this end, this won’t be the last post on the matter.

Toronto Computer Laws Group: Legal Issues Facing Startup Companies

Posted on by Sam Posted in Business, Law | Comments Off on Toronto Computer Laws Group: Legal Issues Facing Startup Companies

On September 26th, 2013, the Toronto Computer Laws Group hosted a session whether three experts (Chad Bayne from Osler, Hoskin & Harcourt; Matthew Leibowitz with Plazacorp Ventures, and Anthony De Fezekas from Miller Thompson LLP) discussed legal issues facing Start-Up companies. The panel shared the following:

1.  Intellectual Property (IP)

One of the primary and first issues entrepreneurs need to consider is ownership of IP.  All work done by employees should be clearly assigned to the company, even if the employees works for free. Not owning your IP could effectively render your startup unacquirable at a later date.

2. Relationship of Founders

Entrepreneurs need to be clear on who exactly is the founder, and who is not?  After that, how much of the company does each founder own? Do founders earn shares today, or over time? Do each founders get credit for kickstarting the venture over the last 2 years in their basement?  How are founders kicked out? These are all essential questions. Startups are close knit environments where when founders don’t get along, and one of the founders get kicked out, a legal dispute often ensues.

3.  Legal Budget – Focus on the Essentials

Legal costs for a startup doesn’t have to be expensive.  Often what a startup actually needs is different form what a startup thinks its needs. To get a company off the ground, a startup will need a lawyer to assist with:

  • Shareholder Agreements
  • Advice on Intellectual Property
  • Terms of Service and a Privacy Policy
  • Possibly Minute Books

With these legal documents in place, the startup should focus on your business until the  first customer comes knocking. Until then, it’s noses to the grindstone!




Ontario Law Bar Exams Advice

Posted on by Sam Posted in Law | Comments Off on Ontario Law Bar Exams Advice

The results of the 2013 Ontario Solicitor and Barrister licensing exams were released last week (I passed!).  A few anxious incoming 3Ls have asked about my experience. Reflecting back on the process, here’s my advice for next year’s candidates:

  1. Don’t believe the rumours that “everyone passes” the bar. This is simply not true.  The Ontario Bar is not a cakewalk, and I know a number of people who have failed.  Sometimes it’s because of bad luck, but often it’s because students underestimate how challenging the bar can be.
  2. Start early. This is especially true if you have not taken some of the substantive courses covered on the bar exam. The material is dense, and my average pace was approximately 15 pages per hour for new material.
  3. Understanding the material is crucial. We had heard stories from upper years that they “knew a guy” who just skimmed the materials the night before and passed. While I don’t know the full circumstances, I can tell you that it can be very confusing to apply the law when you don’t understand the material. It’s also extremely puzzling to know where in your index to look when the same term shows up multiple times in different areas of law.
  4. Don’t rely exclusively on Indices. Indices are created by your peers and everyone relies on different trigger words. Make sure you know how the law is laid out in your bar materials so that when the Index fails you, there is a Plan B. I had an extra copy of the Table of Contents always sitting on the desk.
  5. Glossing over the Ethics section. While a lot of ethics may appear common sense, they are rooted in principles and ROPC that may be less common sense than you think.  Tactically, Ethics is tested on both the Solicitor and the Barrister exam, so if you study hard for Ethics, you get twice the value.

My Exam Strategy
Target Timing Per Question : 1.5 minute per question

Step 1:
Read the question and cross out the ridiculous answers you know are off-mark.  This will be apparent to you if you understand the material.  If I know the answer and I am reasonably confident, I don’t bother consulting the Bar materials. I check the answer off and bank some time on the clock.

Step 2: Consult the Index.  I’ll look up a maximum of 2 key trigger words. If it shows up, I will flip open my Bar materials to find the appropriate section. If not, proceed to step 3.

Step 3: Consult the Table of Contents and find the appropriate section in the Bar materials.  Again, this is where understanding the material really helps.

Step 4:  At the 1.5 minute mark, if I still can’t locate where in the Bar materials the answer is found, I take a guess.  I refuse to stew on a question.  Once you get behind the clock, it is difficult to catch-up.  Moreover, it is easy to get stuck on a difficult question and never get to the easy questions that are within reach.

Good luck to the class of 2014.




lawTechCamp 2013

Posted on by Sam Posted in Uncategorized | Comments Off on lawTechCamp 2013

lawTechCamp 2013 is here on June 8th. I stumbled on this through a email distribution, and it immediately piqued my interest. Basically, lawTechCamp is a half-day conference on topics that intersect technology and the law.  This year, there is a compelling set of talks such as “Advising Companies in an Disruption Economy“, and “The Advantages of Machine Learning“. These seem like quite progressive topics in technology law, and I can’t wait to see what this is all about.

After some inquiry, Peter MacDonald and Monica Goyal at Fleet Street Law provided me with the discount code: “student”

See you there!


Interviewing: Throw Me a Hard One

Posted on by Sam Posted in Law, Law School | Comments Off on Interviewing: Throw Me a Hard One

This week, I helped represent my law firm at a career fair for law students at my school. Over a hundred first year law students showed up in pristine suits, looking to impress. Only two years ago, I was in their very shoes. Manning the booth for close to 2+ hours and speaking with dozens of students, I started to understand what it was like for interviewers during the law school recruitment process.  Too many law students play it too safe.

Interviewers are answering the same questions over and over again. They yearn for challenge, to be delighted from the monotony of parroting the same answers to the very same questions. Make it fun for them, and they just might remember you. Along the way, one might even discover answers to questions everyone else wanted to know, but was too afraid to ask.

Applying the Law In Defiance

Posted on by Sam Posted in Law | Comments Off on Applying the Law In Defiance

“Obiter Dicta” is Latin for “Said in Passing”.  In Common Law jurisdictions where many laws are judge-made, the judicial decisions often contain writing that are non-binding, yet provide clues as to the direction the  law is developing.

I was recently reading Code 2.0 by Lawrence Lessig, and was fascinated with one of the phrases he used. He argues that often the judiciary ought to more frequently “apply the law in defiance”.  To be clear, the judiciary would not be usurping the power of the democratically elect.  Rather, the courts could say: “I’ve rendered this judgment in accordance with the state of the law, but I don’t agree with it.”

As technology and the Internet becomes evermore pervasive in society, we will increasingly discover that applying traditional laws in a cyberspace framework sometimes lead to absurd outcomes (e.g. the whole debacle with Patent Trolls in the Intellectual Property game being one such issue). Often the Parliament is not in a place to decide, and the subject matter can be too technical for the general masses to take a position. As a consequence, Lessig suggests — and I agree to a great extent — that courts should still defer to the legislature, but in strong protest.

The Final Stretch

Posted on by Sam Posted in Featured, Law, Life, Triathlon | Comments Off on The Final Stretch

Tomorrow marks the beginning of the end. There’s 3 more months to go, and I’ll be officially complete the JD/MBA program at the Western Lawand the Richard Ivey School of Business. Admittedly, the past 2.5 years have been a period of grueling hard work, of much failures, but also some triumphs. Still, I have loved these experiences all the same.  On the eve of the Spring semester of the JD/MBA, I’m reflecting on some of the biggest lessons I’ve learned since I commenced law/business school. And it happens to come from an Ironman Triathlon friend’s blog, where he talks about Melanie McQuiad (a Professional Triathlete) saying:

Everybody trains just as hard as everybody else…How is it that somebody’s winning by minutes? All of that has to do with mental strength: being able to dig deep inside yourself and suffer more than everybody else.

I remember Miranda Carfrae, former Kona Ironman Triathlon Champion, said something similar.  She said most triathletes just aren’t willing to hurt to the next level, and that is why they never win. That sums up law school and business school; and likely sums up the practice of law to which I am headed. Most students are motivated; most students work insanely hard. So how is it that one some get ahead of others? I think it is all about digging deep; all about wanting it bad enough and willing to pay the price. I think back to a conversation I had with a Federal Court Justice last week.  He shared that through his many years interacting with students, any “B” student (that is, an average student riding the median) has what it takes to knock it out of the park; it’s just about how much they want it and how badly they are willing to apply themselves. The difference between a “B” and an “A” student — barring the occasional Einstein — just isn’t the margin of difference. It is about how badly one wants it is.

There are some lofty pursuits this year; from excelling during the Articling year to training for the Ironman Triathlon.  At the top, everyone is willing to work hard, but how many are willing to hurt?

It’s Not About the Camera

Posted on by Sam Posted in Featured, Life, Photography | Comments Off on It’s Not About the Camera

New to photography, I recently picked up a new digital SLR camera (Nikon D3200) while studying at the National University of Singapore. In search for beginner resources, I stumbled on the personal homepage of photography guru, Ken Rockwell, who says something incredibly insightful:

You finally realize that the right gear you’ve spent so much time accumulating just makes it easier to get your sound or your look or your moves, but that you could get them, albeit with a little more effort, on the same garbage with which you started. You realize the most important thing for the gear to do is just get out of your way. You then also realize that if you had spent all the time you wasted worrying about acquiring better gear woodshedding, making photos or catching more rides that you would have gotten where you wanted to be much sooner. (More found here).

Rockwell is referring to a common phenomenon where beginner photographers embark on a purchasing rampage, racking up numerous prime lens, wide-angle lens, and telephoto lens.  The irony, is that even the most basic digital cameras we have today is significantly better than the ones our photography legends used — guys like Ansel Adams. Yet, he managed to tease out landmark pieces of art.

Interestingly, this applies to almost every endeavour.  To guitarists wanting the latest Taylor or Martin guitar, to cyclists envying over the latest Cervelo or Bianchi, to coders wanting the latest MacBook Pro with Retina Display. These are all tools that will help to varying degrees. At the end of the day, it isn’t about whether to make an investment or not — but rather where one makes the investment. Do we spend it on equipment, or do we invest it in improving our skills?

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