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Oracle vs. Google: 5 Top Analysts Weigh In on API Implications for Devs and Startups

• By John K. Waters
• May 8, 2012

On Monday, a federal jury in San Francisco found unanimously that Google had infringed on Oracle copyrights -- 37 of them -- in its use of Java APIs in the development of the Android mobile operating system. But the 12 members couldn't decide on the fundamental question of whether Google had made "fair use" of those APIs.

Both sides are now busy with briefs arguing either that this partial verdict should be thrown out (Google) or that the two-thirds on which the jury agreed should be upheld (Oracle).

Whatever happens between Big O and Big G, the issue raised in this case of whether APIs are copyrightable is likely to have far-reaching consequences for the developer community.

"Should the judge decide that APIs are copyrightable," RedMonk analyst Stephen O'Grady told ADTmag, "the impact on developers will be quite substantial, and likely, chilling."

O'Grady elaborated in his latest blog post. If it is ruled that API's are copyrightable, it could prove to be a lesson in unintended consequences. He writes:

"Even parties with no intention of asserting their intellectual property rights concerning APIs -- think authors of permissively licensed programming languages, as one example -- will presumably be required to commit to non-enforcement, contractually. And obviously those parties wishing to realize another revenue stream, limit competition or both will ramp up legal actions around unlicensed usage of the APIs in question. It's difficult to fully predict the downstream effects, but given the accelerating servicification of the world, a decision in favor of copyrightable APIs is likely to be at least as damaging as the patent system is today."

O'Grady's colleague at RedMonk, James Governor, who is based in the U.K., pointed to a ruling handed down last week by the European Court of Justice, which seemed to declare that programming languages are not copyrightable. The court ruled in favor of World Programming Limited (WPL) and against the SAS Institute (developer of a data processing and analysis system of the same name). The later claimed that the former had violated its copyright in their compiler clone. The European court stated, "There is no copyright infringement" when a software company without access to a program's source code "studied, observed and tested that program in order to reproduce its functionality in a second program." The court even admonished SAS, saying that "software companies can't rely on copyright rules to prevent rivals from reverse engineering computer programs."

"If APIs are copyrightable in the U.S., but not the EU, then the implications are substantial," Governor observed. "Startups will come to Europe." 

IDC analyst Al Hilwa argues that the current ambiguity around copyrighting APIs is "a function of the fact that they are not all identically creative."

"APIs can be simple or complex," he said, "and whether they are copyrightable is a function of the level of complexity and thus creativity involved."

Hilwa doesn't expect the judge's ruling in this case to be "applied wholesale," but to apply narrowly to the APIs in question alone. The effect on developers, he said, is unlikely to be disruptive, unless they're developing clone implementations of Java.

Ovum analyst Tony Baer allows that Google neglected to "get its ducks in a row" back when it was dealing with Sun, before that company was acquired by Oracle. "It was pure negligence or naiveté," Baer said.

But on the subject of the copyrightability of APIs, Baer is no fan of Oracle's position. "As to extending copyright to APIs, that would have a severely inhibiting impact on software development," he said. "From the standpoint of sheer quantity, software patent litigation provides just a hint of what will happen once we turn the lawyers loose on APIs."

The conflicting testimonies during the trial of two former Sun CEOs during this trial didn't help to clarify the issue: Scott McNealy testified that APIs are definitely copyrightable; Jonathan Schwartz argued for Google's position.

Looking at the Oracle v. Google case, Gartner analyst Mark Driver sees the decisions around API copyright as the most likely to have a long term impact on the industry and software developers -- and not a good one.

"If it's decided that APIs are copyrightable, that decision will have a significantly detrimental long-term impact on the industry," he said. "IT lives in two worlds; the world of close, proprietary innovation, and the world of open systems. It's the API that is the bridge between these two worlds, the API that allows someone to come in and reverse engineer software. The PC industry wouldn't exist if vendors weren't legally able to go in and reverse engineer the IBM PC BIOS, which, arguably, was an API. Copyrighting APIs completely blows away this idea."

"There are cloud providers who are replicating Amazon's API," Driver adds. "I'm pretty sure that Amazon sees this as a problem. But it also fuels interest in the cloud, creates this roadmap to the future, and makes us all feel more comfortable that there's a free market and competition. That's exactly what you want in the world of software, it's the blueprint, it's what enables us to move forward. Imagine what would happen to the auto industry if no one could produce parts for Ford vehicles but Ford. If it's decided that you can copyright an API, that decision will have a chilling effect that will hurt the industry well beyond what's being decided between Oracle and Google about Android."

Also, Driver points out, this lawsuit throws a harsh spotlight on the question of whether Java is truly open.

"I think it's pretty clear now, that is not," he said. "And we have to come to grips with that."

Oracle had been seeking up to $1 billion in damages against Google in this case, alleging that the search engine giant built its popular Android mobile operating system with technology from the Java Platform, which Oracle acquired with the purchase of Sun Microsystems about two years ago. Google has argued that it used only the parts of Java that have always been freely available.

In the next phase of this trial, the same 12 jurors will deal with Oracle's allegations that the Android OS violates two Java patents.