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Google Asks Supreme Court to Overrule API Copyright Ruling

Alphabet's Google subsidiary has petitioned the Supreme Court to review its long-running copyright dispute and re-evaluate a Federal Circuit court's decision that copyright protections extend to software interfaces, and whether, as a jury found, "petitioner's use of a software interface in the context of creating a new computer program constitutes fair use."

If you're tired of this seemingly immortal struggle between Oracle and Google over those 37 Java APIs, you're not alone (it's been nine years), but the stakes are existentially high. In a blog post announcing the move, Google's SVP of Global Affairs and Chief Legal Officer Kent Walker rightly asserted that the Court's decision on the copyrightability of software "will have a far-reaching impact on innovation across the computer industry."

"Standardized software interfaces have driven innovation in software development," Walker wrote. "They let computer programs interact with each other and let developers easily build technologies for different platforms. Unless the Supreme Court steps in here, the industry will be hamstrung by court decisions finding that the use of software interfaces in creating new programs is not allowed under copyright law."

Oracle originally sued Google in 2010. Google's argument that its use of the Java APIs was allowed under the "fair use" provisions of the federal copyright law, and therefore did not infringe on Oracle-owned copyrights failed to persuade the court. "There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform," a panel of three Federal Circuit judges wrote in their March opinion.

The U.S. Copyright Office defines fair use as "a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright-protected works in certain circumstances."

What the appeals court found initially was that the declaration code in Oracle's API packages, which Google copied verbatim, was copyrightable. Google developed the implementation code independently, so that wasn't at issue. The court found that the Oracle code had not been merged with the functions performed by the code; that combinations of short code phrases, such as those used in the APIs, can be copyrightable; and the fact that the code serves a function does not preclude its copyrightability if, as the court put it, "the author had multiple ways to express the underlying idea" at the time of creation of the code.

In its latest filing, Google asserts the following:

"Google has never disputed that some forms of computer code are entitled to copyright protection. But the Federal Circuit's widely criticized opinions -- in an area in which that court has no specialized expertise -- go much further, throwing a devastating one-two punch at the soft- ware industry. If allowed to stand, the Federal Circuit's approach will upend the longstanding expectation of software developers that they are free to use existing software interfaces to build new computer programs. Developers who have invested in learning free and open programming languages such as Java will be unable to use those skills to create programs for new platforms -- a result that will undermine both competition and innovation. Because this case is an optimal vehicle for addressing the exceptionally important questions presented, the petition for a writ of certiorari should be granted."

In his blog post, Walker points to support for Google's position on the copyright question from companies such as Red Hat (now owned by IBM), Yahoo and others, as well as a long list of computer scientists and academics, who have spoken out and filed court petitions of their own.

"The U.S. Constitution authorized copyrights to 'promote the progress of science and useful arts,'" Walker wrote, "not to impede creativity or promote lock-in of software platforms."

What happens next could be the final stake in the heart of this conflict, but I wouldn't bet on it. Meanwhile, check out our coverage of this case on the WatersWorks blog and throughout the ADTmag Web site.

Posted by John K. Waters on January 29, 2019