Category: DevOps and Open Technologies

What, if any, impact will the Supreme Court’s rulings on Oracle v. Google have on the industry at large?

TL/DR: It is unlikely to impact the vast majority of us, vendor and enterprise developer alike.

Disclaimer: I am a technologist, not a lawyer. I have done some research, and talked to lawyers, but all that I say here is opinion—even my direct quotes of lawyers are their opinion. The Supreme Court can and has caught people off guard and taken cases in different directions than expected. Though I believe this path is the one it will follow, nothing is assured until the Court rules.

Throughout this blog, references to The Case are actually using Harvard’s case document.

Background

On Nov. 15, the U.S. Supreme Court agreed to hear a dispute between Oracle and Google. The Oracle v. Google case has been going on for nearly a decade. And its roots go further back than that.

The origins of the case go back to 2005, when Google and Sun Microsystems discussed the licensing of Java for Android. This will likely be important because it shows that Google knew it was someone else’s intellectual property (IP). More on this later.

The crux of the case falls into three parts:

1. Eight files that were decompiled and used. In one court case, these were found to never have made it into distribution and only used for testing (which limits liability).
2. Two source files from Java used directly. These were found to be infringing, but damages were set to zero with consent of both legal teams.
3. The part at issue: the copying of the entirety of Java’s interface from 37 modules. Most tech writers imply this as 37 APIs. It is not—it is hundreds of classes and thousands of methods. The 37 is the number of Java packages.

The case has been through four court hearings/rulings so far. To sum up the relevant parts of these cases:

1. The first case (split between a jury and district court, running at the same time) included patent violations. Those were defeated and Oracle has not appealed that defeat. On copyright infringement, the court found that Google did violate copyright on the 37 packages and the directly copied source code, but not on the eight decompiled files. The jury could not settle the issue of “fair use” of the 37 packages.
2. The district court decided that the eight decompiled files and the copied source code for one function were violations, but remanded the rest back to the jury trial to settle the issue of fair use.
3. In the end, the district court determined that APIs are not protected by copyright. Their decision involved two parts:
   1. That there is only one way to write a given API.
   2. The interface code and hierarchy can be replicated by third parties without violating copyright because it is an interface and not content.
4. On appeal, the finding was reversed, and APIs were deemed copyrightable, sending the case back again.
5. At this point, Google asked the U.S. Supreme Court to intervene. The court chose not to.
6. Back at jury trial, the court found that while APIs may be copyrightable, Google’s use was fair use in the legal sense. This is the one topic the jury could not originally agree upon.
7. Oracle appealed this decision, and the District Court ruled that it indeed was not fair use to copy the structure and exact interfaces.
   1. Where the jury and the district court appear to disagree is in the idea of APIs. Calling a publicly documented API is obviously fair use, and the jury latched onto that idea. The District Court appears to acknowledge the difference between calling an API and copying it.
8. And after some tumultuous hearings and years in the court, the Supreme Court has agreed to weigh in on the issue.

The real problem here is that copyright law is not a great fit for software. It never has been. If I rewrite your Java application in Python, using the same exact structure and naming, is that protected? All of the “words” have changed. It is akin to rewriting your Hindi book in English without a direct translation  … except that in software there is the added issue of it behaving exactly the same.

But we can’t fix the misapplication of copyright law to software—only Congress can. So what to expect?

A fair number of people, from the open source community and from businesses that see opportunity in a ruling that favors their world  view, are advocating that affording copyright protection to APIs is a horrible idea because it would hurt independent developers. This is not quite true. Independent developers are not generally copying Java. While this case does have bearing on coding practices and what developers can do, it does not have a huge impact on innovation, just on copying others’ work and how that is achieved—much like the “reverse engineering” court cases of the ’80s.

There are good arguments on both sides of this case, but it seems to me that fair use will lose. They are public APIs in the sense that anyone can call them; indeed, some of these packages are so core to the system that you could argue every app must call them. But calling a function is not the same as re-creating it. In that sense, they are not in the public domain. Anyone can read a book, but that does not make it public domain.

But no matter how this turns out, it is all good for the industry. This uncertainty has hung over the IT sector for nearly a decade. Just like when a new boss comes along and there is uncertainty in the department until everyone adjusts to the new demands/style of the boss, a solid ruling will allow settling to start. The industry can adapt once it knows what the rules are and we can move along.

The real long-term answer is to have an equivalent to copyright and patent that is designed around the unique parts of computer code. Clearly, software is not the same beast as a book or magazine. The considerations are half-patent and half-copyright, and trying to bend those two to meet the needs of software has created some serious issues. Oracle quoted a 1995 case to showcase this problem—the company is quoting it to win the appeal, but it should be quoted as the reason the protections need to be designed for this medium that is not a publication and yet consists of words whose sequence matters: “Applying copyright law to computer programs is like assembling a jigsaw puzzle whose pieces do not quite fit.” (attributed by Oracle to the concurring opinion of J. Boudin in Lotus Dev. Corp. v. Borland Int’l, Inc., 1995).

One interesting bit that the courts thus far have ignored, and I would love to see the Supreme Court take up, is this: If Google entered into licensing negotiations, the company knew it was Sun/Oracle’s IP. To then go and copy parts of it without licensing appears wrong on its face. It would be interesting to understand the process that ended in the copying and hear whether that bears upon the legal standing of the case. I can think of both malicious and innocent routes to get there; it would be interesting to hear testimony about motivations and thought processes.

But even without delving into the licensing negotiations, this case stands to redefine copyright with regards to software. J. Michael Keyes, a partner at the international law firm Dorsey & Whitney, had this (and more) to say:

“One of the issues that the court may decide is the scope of copyright protection for software. Google had early success below in convincing the trial judge that the snippets of copied code were not copyrightable. Google may urge to have the court take a look at this issue anew. Another huge implication is the scope of fair use. The jury found that Google’s use was “fair” and that it was not liable for infringement. The appellate court overturned that jury conclusion and found that Google’s use was not fair as a matter of law. The Supreme Court will likely wade into this thicket and provide guidance on the scope of fair use in the context of software code and what role an appellate court plays in reviewing jury decisions in that regard.”

What we (all of us) do not want to do is confuse “good for the industry” with “legal standard.” It is not the court’s job to do what we think is best for the industry; it is the court’s job to determine applicable law and what that implies needs to happen. Presumably, the Supreme Court will do just that. And it may not please any of us. But if we think the current iteration of the law is flawed, that is something to take up with elected representatives, not ask a court to “fix” on the fly.

For the vast majority of us, though, it impacts our development not at all. Using APIs or forking open source projects are all still perfectly acceptable, and no ruling by the Supreme Court is going to change that—because copying someone’s APIs is the issue here, not using them. And open source licenses allow for copying and improving projects. So carry on. Get the job done. And read about the Supreme Court’s final decision with a smile, because either way, the industry will adapt to the new normal and continue forward.

— Don Macvittie