Copyrights, APIs, and Oracle vs Google

Copyrights, APIs, and Oracle vs Google

Summary: Can application programming interfaces be copyrighted? The Oracle vs Google jury was instructed to rule as if they could be copyrighted, but the final call, and the fate of programming as we know it, lies in the hands of Judge William Alsup.

TOPICS: Google, Oracle

The really important issue in Oracle vs. Google is what it will mean for copyrights and APIs.

The really important issue in Oracle vs. Google is what it will mean for copyrights and APIs.

We still don't know what will happen with Oracle's accusations that Google violated its patents. Given that Oracle itself doesn't value the two remaining patents as being worth much, that decision won't matter much. No, the real question is what will U.S. District Court Judge William Alsup will do with notion that Java's application programming interfaces (API)s, and hence all APIs, could be copyrighted. That's the real $64-million (billion?) question

Alsup instructed the jury to treat APIs as if they could be copyrighted, and they agreed with him on that. What they couldn't do is decide though whether Google had violated fair use in what it did with Java's APIs in creating Android.

As Pamela Jones, intellectual property law reporter, paralegal, and founder of Groklaw explained to me, “The jury didn't decide API are copyrightable. They can't. That's a question of law, and the judge is the one that has to decide that issue.”

Jones stated that Alsup “decided that he'd let the jury decide the fair use issue first, and then if they found fair use, he wouldn't have to reach that decision. But if they found infringement and no fair use, then he would decide if APIs are copyrightable and more specifically if their arrangement is protectible.”

Is it? Oracle would have it that APIs are like music. Yes, APIs are just made up of descriptions of inputs and outputs, but then music is just made up of notes.

To this argument, Thomas Carey, a partner at Sunstein, a major intellectual property (IP) law firm and chair of its Business Department said, “Oracle's lawyers compared the creation of APIs to writing a piece of music, to which I say 'Balderdash.'”

The First Circuit opinion in Lotus v. Borland found the command structure of Lotus 1-2-3 to be unprotectible under copyright because it was functional, not expressive. According to that opinion, the IP protection for functionality is to be found, if at all, under the patent laws, not under copyright.

“Is there anything more functional and less expressive than an API?” continued Carey. I don't think so, and I suspect that you don't either. Thus, the infringement of APIs should not be possible unless they are patented. The First Circuit [which ruled in Borland's favor in this important case over a program's menu interface] got the principle right (even if I disagree with them about the command structure of 1-2-3).”

So why did the jury find “Balderdash?” Jones thinks it because the final jury instructions led the jury to find "infringement because they thought they were supposed to.” In the end, the jury came up with a conclusion that leaves the question of whether APIs can be copyrighted in the judge's hands.

What happens next? Matthew Levy, a partner with the small IP firm, Cloudigy Law, said: Judge Alsup has not made any decision yet as to whether APIs are copyrightable. And it's very likely that whatever decision he makes will be appealed to the 9th Circuit, so we won't know the answer for some time.”

Levy continued, “Even if Judge Alsup holds that Java's APIs are copyrightable, that doesn't necessarily mean that all APIs are copyrightable. Other languages use header files for APIs; a header file contains little more than method/function signatures, type definitions, exposed variable names, and constants. Those are completely dictated by the function of the code. Arguably, the way those things are arranged in a header file requires some creativity, but I think that's stretching the law too far.”

If the judge finds that APIs can be copyrighted, “I see a couple of big problems with allowing all APIs to be copyrightable. First, developers will have to be very careful in choosing a programming language. The reality is that things won't change a lot (although Java will take a hit), because most programming languages already come with fairly broad licenses. Still, I expect that developers will start to read those licenses a lot more carefully. But the bigger problem is for consumers. If all APIs are copyrightable, we can end up with a situation where a company builds a specialized API to control a device or other platform and then locks down the market for after-market components using copyright of the API combined with the Digital Millennium Copyright Act,” Levy concluded.

The Electronic Frontier Foundation (EFF) has a far darker view of what the world would be like if APIs could be copyrighted. “Treating APIs as copyrightable would have a profound negative impact on interoperability, and, therefore, innovation. APIs are ubiquitous and fundamental to all kinds of program development. It is safe to say that all software developers use APIs to make their software work with other software. For example, the developers of an application like Firefox use APIs to make their application work with various OSes by asking the OS to do things like make network connections, open files, and display windows on the screen. Allowing a party to assert control over APIs means that a party can determine who can make compatible and interoperable software, an idea that is anathema to those who create the software we rely on everyday. Put clearly, the developer of a platform should not be able to control add-on software development for that platform.”

The EFF then gives two concrete examples: “Take, for example, a free and open source project like Samba, which runs the shared folders and network drives in millions of organizations. If Samba could be held to have infringed the Microsoft’s copyright in its SMB protocol and API, with which it inter-operates, it could find itself on the hook for astronomical damages or facing an injunction requiring that it stop providing its API and related services, leaving users to fend for themselves.”

“Another example is the AOL instant messaging program, which used a proprietary API. AOL tried to prevent people from making alternative IM programs that could speak to AOL's users. Despite that, others successfully built their own implementations of the API from the client's side. If copyright had given AOL a weapon to prevent interoperability by its competitors, the outcome for the public would have been unfortunate.”

Let's hope, oh how we should hope, it doesn't come to that.

Related Stories:

Android chief called back in Oracle-Google trial to discuss patents

Google: We developed Android not knowing Sun's patents

The muddled mess of the Oracle vs. Google trial

After mixed copyright win over Google, Oracle looks towards patents

Oracle vs. Google: Dead lawsuit walking

Topics: Google, Oracle

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  • Copyrights, APIs, and Oracle vs Google

    Judge William Alsup will make the right decision.
    • Why?

      Judges don't always. Citizens United = prime example
    • Hopefully

      Otherwise we'll be putting a quarter in a slot of every door to get into a restaurant. We will have to pay the door manufacturer a royalty to use a door. Someone will have to design public domain round windows for the poor to get into restaurants. No one will know how to go through windows, and the restaurants will go broke.
      • And don't forget... the 'taxes'

        We all will be TAXED on each of those quarters.

        Ha... remember "pay toilets?" Where you had to PAY to use the bathroom?
    • And what decision would that be?

      Tim Cook
  • To play devils advocate for a moment...

    "Put clearly, the developer of a platform should not be able to control add-on software development for that platform."

    Why not? Apple does with their IOS devices. Well... short of jailbreaking the thing... but there are disadvantages to jailbreaking if you want to run newer software.
    • Apple doesn't sue jailbreakers for copyright infringement.

      Would you like them to?
      • I was, as I said... playing devil's advocate.

        Of course I wouldn't like them to. I only brought the point up to get people to think about the kind of control that Apple already has over what software runs on their devices... not to change the subject, but to point out that that what Oracle is pushing for is arguably already happening elsewhere anyways.
    • Happens all the time

      Cartridges for video games is the oldest I can think of. Encrypted and signed software is another. If the system is sold as a closed system, then I have to agree, "why not". It can be the only way to ensure QA in some cases. It can keep malware out in others. Saying "control" is a very open ended term. What about all the licensing fees that are paid? This is a barrier to entry as well. Should they be dropped too?
    • Apple does it! But it's a different story

      Apple software never was an open source in first place. Java from another hand it is. How the hell Oracle now can make it copyrightable if they 'as Oracle' never add anything to it?
      • Apple has 100% F/OSS OS


        OS X and iOS both use same XNU operating system what is licensed under Free Software license. Both OSI and FSF has accepted the license.

        OS X and iOS both includes lots of Open Source software. You can find out all that software from Apple own servers from address

        Oracle could do it, as Copyrights can be transferred to other party, but the original maker does still have some rights for his/her work like right to add it to their CV, Portfolio, Catalog etc...

        And when all Open Source licenses are strong only because strong copyright laws, this would make it change those someway.
  • Ugh. So much disinformation

    This article missing an important point. *Using* an API (coding against it) is not what is at issue here. API's are meant to be coded against. COPYING the API *CAN* infringe on copyrights if the API's are expressive enough. A few PRINT/GOTO may not be copyrightable but an entire *framework* surely is. The problem is most companies haven't been threatened to extinction by this practice. For instance, Microsoft doesn't fear WINE which copies the entire Win32 API. Also, the MONO guys sought Microsoft's partnership when cloning the .NET Framework. Nobody has ever had the balls to do what Google did (outright steal and coopt an entire platform).

    I suggest Steven reads the posts at so he's better informed.
    • Sigh.

      Don't refer people to a blog run by an lobbyist who works for Oracle. The information there ( is obviously biased towards his employer.
      • But the point is that Java is a (large) piece of engineering.

        So can an engineering invention, a piece of machinery, have copyright? Its more than just intellectual property, and yet intellectual property has copyright, doesn't it, e.g. written material.
      • And Dalvik is a large piece of re-engineering.

        Do you think those [i]15+ million[/i] lines of Dalvik code just wrote themselves?

        Engineering inventions are already protected by patents; they don't need copyright as well.
      • Zogg, that's why copyleft exists.

        Zogg, the copyright in engineered inventions may not be useful if they are patented. Nevertheless, copyrights rest with the creator unless specifically given up or signed over by him/her to someone else. Hence, the reason why Stallman et al had to pioneer Copyleft for free software purposes.
      • And Groklaw is biased too

        Neither has a monopoly on truth or facts.
      • Please cite the part of copyright law that applies to a piece of machinery.

        Because AFAIK, there's no such thing.

        In fact:
        [quote]Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.[/quote]
    • disinformation on your part

      the best site to get legal opinions is where the axis of evil software is exposed.
      The Linux Geek
    • Absolutely right

      A decent API that is intuitive and consistent takes a lot of design work that's separate from the implementation. Why the hell should it not be copyrightable?

      And you're right, individual method names and trivial signatures shouldn't be copyrightable, but APIs that provide access to large frameworks like the JRE certainly should be! Composers can't copyright chords or even basic progressions, but they'd better be able to copyright entire compositions.

      The amazing thing is that seemingly knowledgeable entities such as Groklaw and the EFF and spreading so much FUD about this. "OMG! The sky is falling! Copyrightable APIs means nobody can write code!". That is such BS! APIs are designed specifically for writing code. What they're not designed for is for behemoths like Google to rip them off, give them away, and collect ad revenues.

      It's great that Google has perfected an alternate way to make money off software, but the stuff they give away had better be their own, or at least properly licensed.
      Guy Smiley