The European Commission has (quite) explicitly adopted the distinction between interface specifications and implementations (even if the Commission is not competent in IP law issues, so that it did not draw all
110 For an example of the typical limits that copyright can impose on the uses of any given specification document, see below
the text accompanying footnote 118.
111 PARASIDIS, Copyright Protection for APIs.
112 In the second paper I will actually argue that the need for fair use (or a specific decompilation exception) derives from the fictio iuris of protecting object code as a literary work. See footnote 17 of the second paper and the accompanying text.
the intellectual property related consequences of this distinction). In its Decision in the Microsoft (IV) Case,113 the Commission described interoperability policies of software vendors as follows:
“Software vendors frequently agree to establish open interoperability standards. In this context, they usually agree on interface specifications (that is to say, specifications needed to implement compatible interfaces). Thereafter, different competing implementations compatible with the specification can be created. Such implementations may vary widely in terms of performance, security, etc. They will in principle always differ as regards their source code”.114
The Commission went on to stress the importance of the distinction between interface specifications and implementation: “An interface specification describes what an implementation must achieve, not how it achieves it.” In particular, the Commission quoted computer scientists highlighting that “a specification does not have to be concerned with details that are relevant to the implementation”. Hence, it may be highly more abstract and can ignore several problems requiring paramount attention during the actual implementation phase (“e.g., memory allocation or details of most algorithms used in an actual realisation of the specification”).115 That means that it is possible to “provide interface specifications without giving access to
all implementation details” and, the Commission observed, “it is common practice in the industry to do so, in particular when open interoperability standards are set.”116
Coherently with the approach proposed in this paper and with previous quotations, the disclosure order that the Commission issued in its well-known Microsoft Decision, “concerns the interface documentation only, and not the Windows source code, as this is not necessary to achieve the development of interoperable products.”117 In other words, the Commission ordered Microsoft to release an interoperability specification
(“interface documentation”) and not the associated implementation (“Windows source code”). This is stressed several times by the Commission:
“[T]his Decision does not contemplate compulsory disclosure of Windows source code as this is not necessary to achieve the development of interoperable products. The disclosure order should concerns the interface specifications only. Furthermore, as regards the subsequent use of the specifications, the specifications should also not be reproduced, adapted, arranged or altered, but should be used by third parties to write their own specification-compliant interfaces. In any event, to the extent that this Decision might require Microsoft to refrain from fully enforcing any of its intellectual property rights, this would be justified by the need to put an end to the abuse.”118
Using the wording of my paper, Microsoft’s competitors are supposed to write down new implementations (“their own specification-compliant interfaces”), not to copy Microsoft’s implementations, nor to violate the copyright on the specification documents provided by Microsoft (“the specifications should also not be reproduced, adapted, arranged or altered”). So the Commission119 recognizes both that specific
implementations are protected by copyright and that a given specification document may also be protected (as the external expression of a maths book, as opposed to the techniques and theorems explained by it). In any case, since the Commission is not competent in the field of Intellectual property rights, which are left to
113 See supra note 3.
114 Recital 34 of the Commission Decision (supra note 3s.). At recital 35 the Commission also specifies that: “Specifications can in
certain circumstances be accompanied by a ‘reference implementation’, that is to say, a source code implementing the specification. Reference implementations serve to illustrate and clarify particular points of the specification and are not suitable for direct marketing of the corresponding binary code. As such, reference implementations need to be distinguished from commercial implementations.”
115 Ibidem at recital 570. Professor Wirsing, an expert testifying for Sun Microsystems, illustrates this point by the following
example. “[It] is easy to specify when a sequence of numbers is ordered: every number in the sequence is smaller or equal to its successor in the sequence. It is a lot harder to describe an algorithm for sorting a sequence of numbers and to make sure that it is correct”.
116 Ibidem at recital 571. It is also said that: “In this respect, it is also noteworthy that, under the US Communications Protocols
Licensing Program, licensees are not granted access to Microsoft’s source code, but to specifications of the relevant protocols”. Additional comments may be found at recital 698, where the Commission notes that “there is ample scope for differentiation and innovation beyond the design of interface specifications. In his report submitted by Sun, Professor Wirsing states: ‘A specification does not define all aspects of a software system, therefore many different distinct implementations of a specification are possible. These implementations may differentiate themselves by factors like ease of use, performance or scalability. Therefore specifications leave room for variation and feature enhancements in implementations.’”
117 Press Release IP/04/382, Brussels, 24 March 2004.
118 Recital 1004 of the Commission Decision (see supra note 3s.) (emphasis added).
119 Notice that the approach of the Commission has been fully upheld in the recent ruling of the Court of First Instance
the competence of national legislators, the EU authority is prudent and specifies that limitations to the full enforcement of Microsoft’s Intellectual property rights could possibly be necessary to end Microsoft’s abuses.120 But the following parts of this paper will demonstrate – as the Commission seemed to suspect
already – that no limitations of Microsoft’s existing intellectual property rights (strictu sensu) are strictly needed to implement the Decision, apart from the obvious (and economically very significant) duty to release a trade secret to its competitors. However, this is not an expropriation of any form of existing property,121 but “just”
a limitation of Microsoft’s freedom of movement in the market (as frequently happens to the dominant undertaking, confronted with the “special responsibilities” arising from its market position).