Wednesday, August 29, 2007

Ruling expressly denies Express Logic its copyrighted API logic

Express Logic cried foul in June 2006 when Green Hills Software appeared to have a competitor in its embedded microkernel RTOS micro-velOSity product that looked a little too much like what Express Logic had already been delivering to the market (and partnering with Green Hills on).

In seeking a remedy, Express Logic called for an injunction on the market delivery of Green Hills' micro-velOSity (which was denied), and also sought arbitration over its position that Green Hills copied the ThreadX API C source code contained in Express Logic’s tx_api.h header file. Express Logic said that Green Hills had tread on its copyrights when Green Hills created micro-velOSity as an alternative to Express Logic's ThreadX.

Well, now the arbitration panel has sided largely against Express Logic. Green Hills feels vindicated. Express Logic would like to differ, if not in the case's outcome, than in the hardships facing the industry.

“We’re shocked that copying of source code and using it to compete with our copyrighted work was not found to be infringement,” said William E. Lamie, author of ThreadX and president of Express Logic, in a release. “We believe that the basis upon which the arbitrators determined that this copying was not infringing would put all software code at risk of being copied without infringement. After all, what software is not made up of ‘words and short phrases?’ As for the ‘functional requirements for compatibility,’ why should anyone be able to copy source code under the guise of compatibility but not use it for that purpose? This ruling seems illogical to us, and would put all software at risk if this reasoning were to be applied in other cases.”

From Green Hills: "We are vindicated by this judgment,” said Dan O’Dowd, CEO of Green Hills Software, in a release. “Express Logic’s campaign to instill fear, uncertainty, and doubt about micro-velOSity has failed. We regret any inconvenience this litigation has
caused our customers. This final arbitration award ensures that embedded developers can continue to use micro-velOSity with confidence.”

The issues around APIs and compatibility and when source code can and can not be copied are still a fuzz ball. The panel that ruled on this case does not set legal precedent, and a similar lawsuit may be filed (although not in this instance) some day.

Indeed, spats between software companies are nothing new, but the concepts around copyright and code (and even patents!) remain treacherous for many companies. You stay in this business for more than a few months and you'll hear of weird lawsuits and claims around patents, copyrights, and licenses. It's a vipers pit out there, for many.

Unfortunately, that may not change much any time soon. Even largely sensible revisions to the patents process that could clarify the role patents play in software are bogged down in bureaucracy and, yes, Virginia ... politics.

Express Logic may not be able to do more than complain in sales meetings that Green Hills has violated its intellectual property. Express Logic also claimed that Green Hills engages in unfair business practices ... well, that too is now more for the court of public opinion to decide. "Unfair" is a tough term to qualify in the world of software. Has anyone claimed that Silicon Valley or Route 128 are the bastions of the fairness and truth? Not since Rogers Rangers tangled with the Abenakis.

Did Express Logic bend, like a pretzel, the concept of APIs in seeking a legal remedy for its alleged victimization? Perhaps. Are the distinctions in code sharing for compatibility testing and for intellectual property protection murky? Probably. Does Green Hills care about its partners much when its own interests are involved? Probably not.

So there are some lessons in here. APIs are not a good way to assert intellectual property claims. Another is be careful who you partner with when murky software definitions are involved.