Command Line Interface Copyright Case: Not Fair Use... But Not Infringing Thanks To Scenes A Faire

from the we-didn't-put-the-accents-in-the-title,-since-they-break-some-rss-readers dept

Fri, Dec 16th 2016 8:31am — Mike Masnick

While the Oracle/Google case tends to get most of the attention when people talk about the copyrighting of interfaces, there was another big "interfaces on trial" case that just completed between Cisco and Arista Networks. Cisco insisted that Arista was infringing on its Command Line Interface (CLI) by using some of the same commands that Cisco equipment used. Arista responded by pointing out that a command line interface is hardly unique, and Cisco itself had been pushing the command line interface as an industry standard, and also that this whole lawsuit was just silly (they didn't quite put it in those terms, but...). Like the Oracle/Google case, this one had a patent issue attached at the hip, which got tossed off early on. That matters, because it means that the inevitable appeal will go up through CAFC, the appeals court that specializes in mucking up patent law. CAFC infamously took its "mucking up patent" skills to copyright law a few years back, in the Oracle/Google case when it decided that APIs were copyright-eligible subject matter, upending years of common wisdom, legal precedent and the clear text of the Copyright Act about interfaces.

Of course, in the Oracle/Google case, after CAFC's disastrous decision, Google still came out ahead (so far) when a jury decided that its copying of the APIs was "fair use." In the Cisco/Arista case that just concluded, the jury went in a slightly different direction. It rejected the fair use argument, but still said the work wasn't infringing, because of the scènes à faire doctrine, which is one of those few copyright legal doctrines experts will throw in (along with "de minimis" when reminding people that fair use is not the only exception to copyright). The basis of scènes à faire is that it's something within the work where there are only a very small number of ways to do something, and thus, it's quite likely that multiple parties will do the same thing, meaning that any copyright will be greatly limited. Scènes à faire is French for "scenes that must be done."

In other words, the jury more or less said that using the command line interface was so basic to the operation of this kind of equipment, that it would be ridiculous to expect each vendor to come up with something different. Unfortunately, the jury didn't see the use as fair use, which Cisco has already jumped on as a sort of moral victory, but one that may come up later, if Cisco can successfully overturn the ruling on scènes à faire. Of course, if this case weren't forced to go through CAFC on appeal, it would have been nice to have been able to challenge the question of whether or not there's any copyright on Cisco's CLI at all, but thanks to CAFC's failure to comprehend that an interface is different than software, this is where we are. I fully expect that CAFC will somehow muck up this case too on appeal, but hope to be pleasantly surprised.

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Filed Under: cafc, command line interface, copyright, fair use, interfaces, scenes a faire
Companies: arista networks, cisco

21 Comments

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Mason Wheeler (profile), 16 Dec 2016 @ 7:00am

So *scènes à faire* is essentially the copyright equivalent of patent law's "obvious to one skilled in the art"?
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- Anonymous Coward, 16 Dec 2016 @ 8:41am
  
  Re:
  `And we know where CAFC sits on that doctrine, nobody is sufficiently skilled in an art as to make any patent obvious.
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- Roger Strong (profile), 16 Dec 2016 @ 8:43am
  
  Re:
  I thought it was an Ingmar Bergman film.
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  - orbitalinsertion (profile), 16 Dec 2016 @ 9:21am
    
    Re: Re:
    My cultural exposure is so sadly limited i thought it was that criminal rodent who was hunted by the RCMP.
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    - afn29129 (profile), 16 Dec 2016 @ 11:17am
      
      Re: Re: Re:
      Klondike Kat , "Savoir-Faire is everywhere!"
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TRX (profile), 16 Dec 2016 @ 9:04am

Let's see... the command line interface under most modern Apple products is a descendant of Unix. Same for Linux, BSD, and a bunch of non *ix operating systems.

The basic interface, keywords, and structure came from an early OS called Multics, which is owned by Honeywell-Bull nowadays.

I expect HB's lawyers will be busy sending letters to everyone from Apple to Cisco to the FSF...
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- Lawrence D’Oliveiro, 16 Dec 2016 @ 4:46pm
  
  Re: The basic interface, keywords, and structure came from an early OS called Multics
  Multics was very different from Unix, as you will see if you look into some details.
  
  While MS/PC-DOS copied the CP/M command line, which in turn was heavily inspired by various DEC OSes (I mean “PIP”? Really??), they are also very different from Unix/POSIX.
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Ninja (profile), 16 Dec 2016 @ 9:11am

Well, shouldn't it be obvious? Sure you can play with names and invent different ways of executing commands but plain old English (or any language) doesn't offer many alternatives to the command 'run' or any 'order' you are giving the machine. I may have misunderstand the thing but are we really bickering over English? *looks at Apple and the round corners* Eh.. Never mind, carry on.
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- Roger Strong (profile), 16 Dec 2016 @ 9:27am
  
  Re:
  This will only get worse when humanoid domestic robots finally hit the market. You'll give them English commands like "Pick up (object)", "Go (direction)", "Look down", "open (container)", "turn on (item)", "close door", etc.
  
  Which is when Activision sues for copying the user interface from the Zork games.
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sophisticatedjanedoe (profile), 16 Dec 2016 @ 9:29am

Scènes à faire is undervalued and underused. I've been arguing for years that this doctrine renders 99% of pornography not copyrightable.
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TheResidentSkeptic (profile), 16 Dec 2016 @ 9:29am

Imagine if..
... this kind of legal BS had been around a century ago - One manufacturer's cars would have a steering wheel for directional control and pedals for stopping and accelerating; another would use foot pedals for steering and one lever for stop/go; another would come up with something else - and it would be a nightmare to learn operate every different car you owned through your life.
Computers went through this decades ago and we all determined that consistency was better than trying to remember PIP or CP or Copy or MV ...
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- Anonymous Coward, 16 Dec 2016 @ 11:29am
  
  Re: Imagine if..
  "and we all determined that consistency was better"
  
  And then Oracle sues over APIs (oversimplification, sure).
  
  But yeah, if only there was a saying that could neatly encapsulate how unnecessary it is to invent something new to perform a really basic obvious function...
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- Anonymous Coward, 16 Dec 2016 @ 2:55pm
  
  Re: Imagine if..
  How did the qwerty keyboard escape the IP hoarders?
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Anomalous Cowherd, 16 Dec 2016 @ 9:52am

I found three typos
In the first paragraph 'mucking' appears twice. In the final paragraph, you used 'muck.' Methinks you meant another root word entirely.
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Anonymous Coward, 16 Dec 2016 @ 11:05am

"format c colon"
said the witness.

The court reporter dutifully types this command into her computer...

Chaos ensues.

Case closed!
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- Lawrence D’Oliveiro, 16 Dec 2016 @ 4:42pm
  
  Re: "format c colon"
  I get
  
  bash: format: command not found
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DB (profile), 16 Dec 2016 @ 12:00pm

The command interface has a long history in litigation, starting with Visicalc. (Well, not a long history by court standards, but compared to the computer industry.)

The Lotus-Visicalc lawsuits started in the early 1980s when Lotus sued competing spreadsheet programs over copying the command interface. Which, ironically, they themselves had blatantly ripped off when they cloned Visicalc. It came full circle when the company that bought Visicalc sued Lotus over the very same copying that Lotus had used to shut down competitors. But this time the court ruled that a now-standard command interface wasn't protected.
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- Roger Strong (profile), 16 Dec 2016 @ 12:53pm
  
  Re:
  Ashton Tate started suing Fox Software and others over their dBase/xBase language products. That went badly - lawsuit dismissed and copyrights invalidated - when the judge found out that Ashton-Tate had neglected to mention that dBase was based on the Jet Propulsion Laboratory's public domain JPL/DIS.
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Bobvious 101, 17 Dec 2016 @ 3:21pm

Has anyone tried to use the API called "Search" lately?
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Anonymous Coward, 19 Dec 2016 @ 3:25am

which got tossed off early on

Tossed out early on. "Tossed off" means something else entirely...
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- Lawrence D’Oliveiro, 19 Dec 2016 @ 10:49am
  
  Re: Tossed off" means something else entirely...
  Folks in the US have no idea....
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