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Several years ago, Oracle sued Google, arguing that Google’s Android operating system infringed the copyright of Oracle’s Java technology by including a list of Java functions that constituted a creative work with the same names and structures.

In 2012, San Francisco-based U.S. District Court Judge William Alsup ruled that the APIs are not covered by copyright law because they are a “functional requirement for writing compatible applications, not creative works.”

Then last week, the United States Court of Appeals for Federal Circuit decided that Oracle could copyright parts of the Java programming language (API), which Google uses to develop its Android smartphone operating system. The appeals court made a clear distinction between the Java programming language and the APIs, and found that only three of the Java APIs in question are basically part of the Java language. This is a significant case relevant to all IT intellectual property. Complicating the matter is the fact that the Java programming language itself is open source and free to the public to use.

On Friday, Federal Circuit Judge Kathleen O’Malley wrote:

“We conclude that a set of commands to instruct a computer to carry out desired operations may contain expression that is eligible for copyright protection,”

In the Federal Circuit’s view, the list of Java functions was just another kind of “code” that couldn’t be copied without its creator’s permission. APIs allow third-party services to pull information automatically from central services like social networks (Google/Facebook/Twitter).

The ruling now allows software companies copyright over their APIs, the interfaces that programs use to communicate with each other. This decision is disastrous for software developers that want to build on top of APIs. If the APIs are no longer free to use, new services may be forced to start from scratch, making it astronomically more difficult to coordinate between programs.

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This ruling has set commentators hair on fire:

“This is an opinion written by judges whose understanding of software comes from reading other judges’ opinions about software.” – University of Maryland professor James Grimmelmann.

“The decision seems to reflect a fundamental lack of understanding of how software works. And it could create serious headaches for companies that want to make their software compatible with that of competitors.” – Timothy B. Lee,

“Not only do they not understand how computers work, they can’t even read,” says James Grimmelmann, a copyright scholar at the University of Maryland. 

As law professor James Grimmelmann notes:


If the Federal Circuit’s precedent isn’t overturned and the vague language stands, frivolous litigation will more than likely ensue. Companies will be consistently suing former employees if they go to a new job and write new code, even from scratch, since that code could possibly be similar enough to the old code and therefore triggering copyright liability.

Bryan Cantrill, the CTO at cloud provider Joyent, recently called out Oracle for doing to him what they are suing Google for in court. Cantrell works on an open-source version of the Solaris operating system, and he noted that Oracle copied some of his APIs into its Oracle Solaris product without permission. Cantrill says he would never sue Oracle over API copyright because “the principle itself is wrong.”

Ok, who is excited about how the future of technology based on the precedent that is being set for the entire software industry? In addition to programmers being forced to craft interoperable programs from absolute scratch if the opinion stands, we know will get to have a number of lawyers will have to be more involved in signing off on what is permissible:

“That’s really expensive and lawyers are not going to give yes or no answers, and that’s going to be stressful for everybody,” said Eric Goldman, a professor at Santa Clara University School of Law.

Apparently, Oracle believes that this will somehow help innovation while just about everyone else realizes that this simply drives innovation in the exact opposite direction. Then again, people like Florian Mueller (whom I respect and enjoy reading) agrees with the Federal Circuit decision and lays the blame on Google not going to Congress before going to Court (amongst many other things).

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Google is almost certain to appeal the ruling. The ruling could be re-heard by a broader panel of Federal Circuit judges or reviewed by the Supreme Court.

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