The Supreme Court will decide software development's future in Google v. Oracle

The final steps are being made in the Google v. Oracle copyright case, which will put the fate of programming in the hands of the Supreme Court.
Written by Steven Vaughan-Nichols, Senior Contributing Editor

Ten years ago, Oracle desperate to monetize its failed Sun purchase sued Google to squeeze profits out of its use of Java APIs in Android. Oracle won its point, that application programming interfaces (API)s were subject to copyright. Now, Google, having gotten the Supreme Court of the United States (SCOTUS) to reconsider Oracle's court victory, is laying out its plan to save software development. 

That's not hyperbole. As the Electronic Frontier Foundation (EFF) states, "allowing copyright on APIs is a terrible idea for computer science." That's because almost all modern software depends on open APIs. When your web browser works with Amazon, Apple, Microsoft -- any complex site really -- it communicates through APIs. When your smartphone shows you the weather, directions to your doctor's office, or a video, it uses APIs to bridge the gap between services and servers and your devices. And, it goes on and on. 

Even Microsoft, no friend of Google, sees its argument. In a SCOTUS filing, Microsoft stated: "Consumers ... expect to be able to take a photo on their Apple phone, save it onto Google's cloud servers, and edit it on their Surface tablets."

Historically, APIs weren't copyrighted. While valuable, there's nothing creative about an API.  It just spells out how external programs can work with the program or service. As Uri Sarid, software integration company MuleSoft CTO, wrote about this case several years ago, "APIs are quite utilitarian, like an ATM machine's operation: slide your card here, punch your code there, select from a menu, and expect cash in return. How could that be copyrighted?"

Oracle argued Google had infringed Oracle's copyright by copying into Android the "structure, sequence and organization" of 37 Java APIs.

U.S. District Court of Northern California judge William Alsup, a programmer in his own right, tossed out the jury's verdict. He wrote that an API is merely "a long hierarchy of over six thousand commands to carry out pre-assigned functions. For that reason, it cannot receive copyright protection — patent protection perhaps — but not copyright protection." Oracle lost its patent lawsuit long ago.

Even if APIs were copyrightable, Google argued that it could use them for free thanks to "fair use." As Alsup explained, "The policy behind the right of fair use is to encourage and allow the development of new ideas that build on earlier ones, thus providing a counterbalance to the copyright policy to protect creative works."

All programmers know this. But what's common sense to programmers is incomprehensible to some judges. The US Court of Appeals for the Federal Circuit ruled Google's Java API work wasn't fair use. In a puzzling decision, the court ruled that because Google's use of the Java APIs was "overwhelmingly commercial," Google couldn't use them under fair use. Weird.

Now, before its final court case, Google is refreshing its arguments that it has a perfect right to use the Java APIs. This is about far more than just the Java APIs. As Kent Walker, Google's Chief Legal Officer, argued: 

Open interfaces between programs are the building blocks of many of the services and products we use today, as well as of technologies we haven't yet imagined. An Oracle win would upend the way the technology industry has always approached the important issue of software interfaces. It would for the first time grant copyright owners a monopoly power to stymie the creation of new implementations and applications. And it would make it harder and costlier for developers and startups to create more products for people to use.

Oracle, of course, has a different take. An Oracle spokesperson said, "While Google would prefer to live in a world unencumbered by intellectual property rights, in the real world copyrights are an essential protection and incentive for innovation.  Oracle offers several licensing options for Java.  Ethical developers and businesses around the world continue to recognize the value of Java and take advantage of our licenses to drive innovation and profit.  Unfortunately, Google opted to ignore standard industry licensing policies and build its business by stealing Oracle's IP."

Ironically enough, Charles Duan, Director of Technology and Innovation Policy at the R Street Institute, a Washington, DC non-profit think tank and Google ally, recently argued that Oracle itself is guilty of copying Amazon's S3 APIs. "In order to be compatible with S3, Oracle's "Amazon S3 Compatibility API" copies numerous elements of Amazon's API, down to the x-amz tags."

This underlines just how important open, copyright-free APIs are. Even Oracle can't work without them. No one who makes modern software can live without open APIs. If Oracle were to win the case, it may well live to regret it. 

For the sake of the future of software development, we need SCOTUS, nine people with no programming experience to speak of, to make the right call. We can only hope they will. 

The Google v. Oracle case is expected to be heard in March 2020. We may see a  decision as early as June.

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