It started in the summer of 2012. At the time, Oracle was claiming it held a copyright on Java, including the APIs (application programming interfaces) that Google had kept as part of the implementation of Android. Never mind that the code behind the Android APIs was completely rewritten. Oracle wanted protection for the APIs themselves.
Google’s first defense was to fight whether APIs could be copyrighted at all, or alternatively, that they were protected under something called “fair use,” (yes, you can argue two things at once in a courtroom!). The court said no to copyright and Oracle, then an appeal court said yes to copyright and Oracle. Google asked the Supreme Court to intervene, to no avail. And so we ended up back in the original court to re-argue the “fair use” position again, as this was never really challenged once the first argument on copyright was won. And guess what – the lower court again ruled for Google and open APIs. Oracle appealed (again).
Would you be surprised if I told you that in the near future you might get sued for using an API? That APIs are copyright protected? If so, follow along below.
So here we are, in the Federal Circuit Court of Appeals for round two. Oracle is suing Google over Java, and the issue this time is not whether an API is subject to copyright protection – this very court ruled it is. The question now is whether use of a Java API is covered by the “fair use” doctrine. The Electronic Frontier Foundation has been tracking it all here. For those following along at home, fair use is what allows comedians to write parodies, teachers to photocopy snippets, and DJs to create mashups. It means using a small part of a copyright work for another useful purpose, more or less. Ask a lawyer if you want to know more (full disclosure, I AM a lawyer, just not yours).
If the court rules yes, then the long history of open APIs remains in place, and developers everywhere can continue to build on the work of others, creating systems that can interoperate at will. If the court rules no, then not just Java APIs are under siege, but likely any open API should the original developer choose to assert their rights. What a cluster that would be.
At the Alliance, we see it as our mission to scan the horizon for situations like this, and weigh in on your behalf so you can keep working on the next big thing. There’s way too much going on in Washington, and in the courts, and in the State legislatures, for every individual developer to spot the threats and take action. We’re good at that stuff, and with the help of the big ecosystem players that also rely on developers, we take action where we can, and work to shift things in a direction that helps (or at least hurts less). This court case is one of those things.
If you scan through the documents being filed (the “docket” in legal speak), you’ll see an amicus brief with our name on it, alongside Engine Advocacy and GitHub. Take a minute to learn Latin, (HA!) and you’ll understand that amicus briefs are formal arguments directed to the court by people that aren’t involved in the litigation, but are just “friends of the court” – sharing some useful information we think would help the court make a good decision. Amici typically coordinate with the actual parties that are suing to avoid making the same arguments others make, essentially focusing on things they know better than others do.
Our developer members know the value of APIs, and what it would mean to lose access to them. Our argument is simple: APIs drive interoperable software. That has always been the case, and to change that now makes no sense, and does tremendous damage. We think you’d agree with that. We know others do.
Read the Alliance’s filing here.
Bruce Gustafson
Senior Advisor, Policy
