The showdown before the Supreme Court is unprecedented: Oracle Corp. has come head-to-head with Google. And what exactly are these two tech giants fighting about? Smartphone software. Oracle is suing Google for using pieces of the Java software language in the Android platform, alleging copyright infringement. Such a decision regarding the intersection of copyright law and computer code has the potential to drastically alter the legal landscape for tech companies, with the possibility of stifling all future software development.
Oracle first sued Google in 2010, claiming that Google lifted integral pieces from JAVA application programming interfaces, commonly called APIs. APIs are prewritten computer instructions that help programmers write in JAVA, providing them with oft-repeated functions so the programmers don’t have to constantly rewrite the code. Oracle asserts it created the APIs and Google, by lifting the code and applying it to Android, committed serious copyright infringement. Google argued that: (1) the APIs were not copyrightable, and (2) the use of code was protected by copyright’s fair use doctrine. These arguments were rejected in 2014 by Federal Circuit court, and again in 2018 by the appeals court, respectively. Now, the case heads to the Supreme Court the second time as Google has asked the Supreme Court to weigh in on the issue, after the Justices denied certiori after the 2014 Federal Circuit court ruling. If Google loses, it faces damages estimated at $8.8 billion.
If APIs can be copyrighted, then tech companies everywhere have potential legal landmines hidden in their code…
The issue in this case centers around whether JAVA APIs comprise intellectual property. While the court has already declared APIs as copyrightable, Google’s lawyers point to the fair use doctrine in their argument. The fair use doctrine under copyright law permits unlicensed use of copyright-protected works in certain circumstances, under Section 107 of the Copyright Act. Simply put, the fair use doctrine allows for the copying of a copyrighted material done for a limited and transformative purpose, such as to comment upon, criticize, or parody a work. Section 107 calls for four factors in evaluating a question of fair use: (1) purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes; (2) nature of the copyrighted work; (3) amount and substantiality of the portion used in relation to the copyrighted work as a whole, and; (4) effect of the use upon the potential market for or value of the copyrighted work. The analysis is done on a case by case basis, considering the totality of the circumstances with only these very general guidelines for direction. The Federal Circuit found Google’s use outside the scope of the fair use doctrine; whether or not the Supreme Court agrees could pose debilitating consequences for continued innovation in software development.
If APIs can be copyrighted, then tech companies everywhere have potential legal landmines hidden in their code. In other words, there is a lot of pre-existing code that is now vulnerable to copyright infringement claims. As a result, a victory for Oracle could jeopardize the legal foundation everyone who does business with shared APIs, as interoperability is a cornerstone in software development. Google argues, and many players in the developing game—such as Yahoo or Hewlett-Packard—agree, that software development relies on open standards and standardized software interfaces like APIs are necessary for continued innovation in development. However, Oracle has described this chill on innovation as a myth: general counsel of the tech corporation, Dorian Daley, said, “Since the initial decision of the Federal Circuit (and agreement of the Solicitor General’s Office) that the Oracle JAVA code copied by Google was copyright protected, the pace of innovation has only accelerated, spurring job creation and opportunity.” Is Dorian Daley right? Is the sky really not falling on software industry, as Google wants us to think? But with Google, Red Hat, Yahoo, and HP in disagreement, it’s hard to believe that such a sweeping decision would do anything but undermine competition and innovation in this industry. After all, the freedom to expand on existing software has been a key in technological development. Having to start from square one with every new project is not only inefficient, but frankly impractical.
Darby Festa, 28 January 2019