Black Monday: SCOTUS refuses to hear Google vs Oracle case

While Google has to prepare a fair use defense, the rest of the software industry is in serious trouble.


In an expected, but no less disappointing, turn of events, the US Supreme Court has refused to hear the Oracle vs Google case.

All eyes were on SCOTUS for a decision, as the ruling would fundamentally change the way software, applications and services work with each other. APIs (application program interfaces), which are central to the modern IT world, are used to connect software and services to each other, allowing third party software to ‘plug’ into software or service and work together. For example a WordPress site can use Google Analytics APIs to pull data using a third party plugin and show it to the site users.

It's dangerous for everyone else

Google may get out of the rut it's stuck in by winning the fair case defense, but it sets a dangerous precedent for the rest of the software industry.

When Google was sued, John Sullivan, executive director of the Free Software Foundation, expressed his fears, saying, "Were it grounded in reality, Oracle's claim that copyright law gives them proprietary control over any software that uses a particular functional API would be terrible for free software and programmers everywhere."

Experts at Electronic Frontier Foundation (EFF) strongly opposed treating APIs as copyrightable. Julie Samuels of EFF wrote in 2012, that "treating APIs as copyrightable would have a profound negative impact on interoperability, and, therefore, innovation. APIs are ubiquitous and fundamental to all kinds of program development. It is safe to say that all software developers use APIs to make their software work with other software." And added,"Put clearly, the developer of a platform should not be able to control add-on software development for that platform."

A brief history of Oracle vs Google

When Google announced Android back in 2007, Sun CEO Jonathan Schwartz congratulated Google for Android in a company blog (Oracle deleted his blog after they acquired Sun). That’s not to say Sun was OK with the way Google used Java technology. But due to their financial condition, or lack of desire, they never took any legal action against Google. According to reports, Google was working with Sun to crack a partnership and licensing deal with them.

Then Oracle proposed to buy Sun Microsystem in 2009 and it was acquired by 2010. Oracle admitted that Java was “the single most important software asset they have ever acquired."

Oracle lawyers probably saw dollar bills when they noticed a conflict with Google’s then extremely successful mobile platform, Android. James Gosling, the father of Java, who worked for Sun said, "During the integration meetings between Sun and Oracle, where we were being grilled about the patent situation between Sun and Google, we could see the Oracle lawyer's eyes sparkle." James quit Sun as soon as Oracle acquired it and later joined Google.

Oracle completed the acquisition in January 2010 and sued Google in August. The case was assigned to Judge William Alsup who split it in three parts to address each issue properly.

Google earned widespread support from the open source community and received raves from Grocklaw’s Pamela Jones for its extensive research and homework on the case.

After deliberating on the case, in 2012 Judge Alsup came up with a ruling that was in favor of Google. The most important of all was that 37 APIs in question were not copyrightable.

Judge Alsup, who himself writes software codes ruled, “So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical."

However he also said, "This order does not hold that Java API packages are free for all to use without license...It does not hold that the structure, sequence, and organization of all computer programs may be stolen. Rather, it holds on the specific facts of this case, the particular elements replicated by Google were free for all to use under the Copyright Act."

Oracle lost the API phase of the case, but they did not give up. They went to the Federal Circuit Court of Appeals and in May 2014 the appeals court overturned Alsup's ruling and stated that the "structure, sequence and organization" of an API was copyrightable. However the court did say Google could use ‘fair use’ of APIs in their defence.

Google appealed to the Supreme Court to reverse that decision, which they and many believed to be dangerous for the software industry. SCOTUS sought advice from DoJ and the U.S. Solicitor General Donald Verrilli suggested that the Supreme Court should not indulge in the matter and let a lower court handle it. Instead of making a wider ruling on APIs, Verrilli suggested Google may address those concerns via fair-use defence.

He wrote, "Although [Google] has raised important questions about the effects that enforcing [Oracle's] copyright could have on software development, those concerns are better addressed through [Google's] fair-use defense, which will be considered on remand."

And now since the Supreme Court has denied Google’s appeal the Android maker will have to present a case of fair use to the appeals court.

The saga that started back in 2010 is far from over after almost half a decade. It’s turning out to be a script written by George R.R. Martin. And the rest of us are turning out to be Jon Snow who knows nothing.

Copyright © 2015 IDG Communications, Inc.

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