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Is WINE (WINE Is Not an Emulator) illegal?

Given that the U.S. Court of Appeals for the Federal Circuit has held in Oracle v. Google that APIs are copyrightable, is WINE (which reproduces the Windows API) a copyright infringement?

Can reproduction of an API be fair-use?

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    It's an interesting question I have spend some time thinking about myself. I don't think we can draw many conclusions from Oracle vs Google just yet, and I don't think we can have a definite answer to this one yet. Further case law may be needed. It might also be a good idea to cross-post to law stack exchange. – Martijn Oct 11 '15 at 8:39
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    This question may fail to make sense to someone reading this a few years from now. Can you please add some context about the case and exactly why you think WINE would fall on the "wrong side" of the precedent? – RubberDuck Oct 11 '15 at 11:22
  • @111 Do you know which court has made the ruling... do you have a link to the actual judgement? – jimsug Oct 11 '15 at 14:56
  • you may want to expound on what WINE is and how it potentially infringes. – gracey209 Oct 11 '15 at 16:38
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It is unclear whether WINE is infringing copyright or if it can rely on a fair use defense.

The CAFC held that:

that the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection

In that light, if WINE had original content in the structure, sequence, and organization of its API, the CAFC would likely also find that it is entitled to copyright protection. However, because this issue is outside the scope of the CAFC's exclusive jurisdiction (this is a copyright issue, not a patent issue), the holdings are not binding in any other circuit.

Each circuit is free to review anew the copyrightability of APIs when such a case comes up. My guess is that this is the reason the Supreme Court declined to hear an appeal on CAFC's Oracle v. Google opinion.

To address your fair use question would be simply speculation, because fair use is always assessed case-by-case, and even in WINE's closest analogy (Oracle v. Google), the CAFC remanded the fair use question back to the trial court, and that question hasn't been decided yet:

we remand for further consideration of Google’s fair use defense in light of this decision

  • IF Oracle v Google could be interpreted in such a way as to render WINE 'illegal' would it be retroactive? Given that the issue was undecided until OvC, and WINE predates the decision, would it be safe anyway? Is this something I should ask as a separate/standalone question? – kdopen Oct 12 '15 at 22:53
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    It helps. The scenario I had in mind was "A does something in 2000; B does effectively the same thing in 2010; C sues B in 2012 and wins". If someone then brings a suit against 'A' citing the ruling in 'B vs C' does it mean they are liable for damages etc dating back to 2000, or only to 2012? – kdopen Oct 12 '15 at 23:09
  • IANAL. However, I think it would be binding under normal circumstances. Rulings are interpretations of the law, not changes to it, first. It would be a change in how the applicable law that was in force in the past is interpreted/applied. Second, law is automatically binding on everyone; grandfathering would have to be specifically addressed in the statute to be applicable. – jeffcook2150 Apr 11 '17 at 18:53
  • Ex post facto laws are forbidden by the Constitution, but these usually refer to laws that criminalize past behavior. An example would be making a law that retroactively forbids use of pencils, and then arresting anyone who has ever used a pencil, even before the date the pencil ban became law. – jeffcook2150 Apr 11 '17 at 18:54

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