Oracle v. Google – A Struggle between Copyright & Fair Use

Over the past few years leading up to the trial last week, and even during the trial, several journalists, technologists and IP experts have opined on this case and what’s at stake. The opinions ranged from claiming open source software to be dead to calling the American judicial system of ‘trial by jury’ as stupid.

Sarah Jeong, who authored the article In Oracle v. Google, a Nerd Subculture Is on Trial, states: “The problem with Oracle v. Google is that everyone actually affected by the case knows what an API is, but the whole affair is being decided by people who don’t, from the normals in the jury box to the normals at the Supreme Court.”

Annette Hurst in her article on The Death of “Free” Software… Or How Google Killed GPL weighs the pros and cons of this case plaguing free software, showing a mirror of the long term to developers. To quote her: “It is hard to see how GPL can survive such a result.  In fact, it is hard to see how ownership of a copy of any software protected by copyright can survive this result.  Software businesses now must accelerate their move to the cloud where everything can be controlled as a service rather than licensed as software.  Consumers can expect to find decreasing options to own anything for themselves, decreasing options to control their data, decreasing options to protect their privacy.”

There are several such examples that characterize this dispute. I am not an attorney, let alone a legal expert. So, I’ll defer to the experts on the legal analysis of these rulings and whether they are proper to begin with.

This analysis focuses on understanding the practical impact of this verdict on the software development industry.

Oracle v. Google – What’s the dispute?

To begin, let us look at what the dispute between Oracle and Google is.

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Oracle acquired Sun Microsystems, in part to augment its software offerings with Sun’s hardware capabilities, and also more closely integrate Sun’s Solaris operating system and Java technologies with Oracle’s middleware and database solutions. Sun, initially, and Oracle, later, conducted licensing discussions with Google over its use of Java APIs, but with little success.

Java APIs: Legal Tussle between Oracle’s Copyright Claim and Google’s Fair Use Defense

Oracle sued Google initially for copyright and patent infringement in a U.S. District Court. The case went to trial in 2012 and Oracle lost on both counts. Specifically, the judge ruled that Java APIs at the heart of the case were not protectable under Copyright Law. This decision forms the crux of the software industry’s interest in this dispute.

Both Oracle and Google appealed the district court decisions at the Federal Circuit Court of Appeals, which sided with Oracle and reversed the District Court’s decision. It held that the “structure, sequence and organization” of APIs was copyrightable. The appeals court also gave Google a lifeline and asked the district court to conduct a new trial for Google’s fair use defenses.

The U.S. Supreme Court declined to take up this matter. And just last week, the trial on whether Google’s use of Java APIs is “fair use” concluded with the jury ruling in Google’s favor.

Fair Use Protection for API Usage Accelerates Innovation

Copyrights allow content creators and innovators to obtain protection and fair compensation for their creations. The same way a book is an author’s creation, source code and software is a developer’s creation.

Fair Use doctrine allows limited use of copyrighted material without approval from the authors. This is to facilitate further analysis and critique of the original work without running the risk of copyright infringement. In other words, fair use doctrine is the fundamental premise using which collaboration on and extension of copyrighted material is made possible.

The appeals court ruling that APIs are copyrightable means that the creators of APIs allow others to take advantage of their software are rightly incentivized to innovate and create more because they have a mechanism to license and obtain compensation for their innovations.

Further, in the district court trial last week, the jury held that an entity implementing the APIs largely using its own implementation is protected under “fair use” doctrine.

textNo single developer can build all the software the world needs. Developers rely on APIs to divide and conquer.

APIs are “interface programs” that software developers create to allow other developers to take advantage of their software programs. They are a mechanism to allow other developers to build on top of others’ work. This way, developers don’t have to “rewrite” code that was already written. They can use APIs in their code bases to provide the functionality already developed and implemented.

APIs promote collaboration and foster faster software development and, by extension, innovation. They truly allow developers to build on top of an existing foundation. So, while it is important that other developers be allowed to use APIs freely, it is equally vital that such use be “fair” to the original developers i.e. the creators be compensated for their creations and be allowed to protect their work from unlicensed exploitation by others.

Open Source or Proprietary – What Does Future Hold?

How does this verdict on “fair use” impact the future of software development? Let us look at what would have happened if Oracle won.

If the jury decided in Oracle’s favor, any software developer using the APIs made available by other developers would have had to take a license from the original API developers, even if the API implementation was different from the creators’ implementation.

Many companies today rely heavily on their ability to “open-source” some of their software to gain adoption, while keeping some other software proprietary. This includes the likes of Red Hat, the distributors an open source Linux operating system, Sun (and now Oracle), purveyors of Java, among others. Even Google offers up Android operating system software as open source, but the advertising software is proprietary. Even though Android and the advertising software are two different pieces of software, from a revenue standpoint, they are one. In other words, presence of Google’s Android software on user devices allows Google to attract developers, and by extension users, to its platform, enabling Google to generate ad revenue from the massive user base.

An Oracle win would have drawn a hard line between “open-source” and “proprietary” paradigms of software development business models.

Google’s win, on the other hand, lets the “open-source” and “proprietary” paradigms co-exist.

I expect this verdict on fair-use to be perceived by many as inconsistent and weakening of the original ruling offering copyright protection to APIs. And such perception is not unfounded. This type of Fair Use protection will cause many software developers to think twice before adopting the open source model for their software and may even cause them to seek patent protection for their software innovations.

(Featured image source: http://bit.ly/1raOTp9)

Sankar Uppuluri
Sankar Uppuluri

Sankar provides thought leadership in IP and drives the solution development at iRunway. He is an expert in designing IP monetization programs for patent owners and provides key technical insights that help IP attorneys profoundly improve licensing and litigation outcomes.


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