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How the Supreme Court saved the software industry from API copyrights


A lot of happy developers out there in the world today.
Enlarge / A lot of happy developers out there in the world today.

Aurich Lawson

Google and Oracle’s argument before the Supreme Court last October left opponents of API copyrights extremely nervous. For the previous decade, Google had been arguing in lower courts that it didn’t infringe copyright law when it re-implemented Java for use in Android. Google had lost—twice—at the appellate level.

Last October, justices for the nation’s highest court seemed skeptical as well. Not only were they asking Google’s lawyer, Tom Goldstein, a lot of tough questions, a number of them didn’t seem to even understand what an API was. That seemed like a bad sign for Google because the distinction between code that declares an API and code that implements it was fundamental to Google’s argument.

In an interview with Ars just after the oral argument, Cornell legal scholar James Grimmelman argued that Goldstein had botched the case.

“He did an abysmal job,” Grimmelman told me. “At the level of nuance he was willing to get into, his case was a loser.”

But Grimmelman now admits he was wrong. “I owe an apology to Tom Goldstein,” he told me on Monday. “I had my criticisms of the job he did at oral argument, but he did a good enough job to win.”

By a 6-2 vote, the nation’s highest court held that Google’s copying of Oracle’s Java API was fair use. The ruling means Google won’t have to pay billions of dollars in damages to Oracle. It also has huge implications for the broader software industry.

“It’s a minor miracle we got an opinion that reached the right result with pretty sound reasoning despite not one of the justices being able to explain how an API works,” Grimmelman said.

An unexpected focus on fair use

Prior to the ruling, Microsoft filed an amicus brief urging the Supreme Court to side with Google. The brief, which was cited in Monday’s ruling, provides one of the best explanations of the stakes in the case.

“Developers rely on sharing, modifying, and enhancing previously developed code to create new products and develop new functionality,” Microsoft wrote. “Both a cause and effect of this collaborative development is the increased demand for seamless interoperability and compatibility—i.e., the ability of different products, devices, and applications to communicate and work together without effort from the consumer.”

If APIs became subject to copyright protection, it would become much easier for an incumbent software provider to lock its customers into a proprietary standard. That would create more compatibility headaches for consumers, and it would make it harder for software startups to break in to established software markets. Opponents of API copyrights also warned that a ruling for Oracle could unleash a flood of API copyright lawsuits similar to the patent troll lawsuits of the last 20 years.

Opponents of API copyrights were hoping that the Supreme Court would declare that an API can’t be protected by copyright at all, making such lawsuits impossible. Oracle, of course, was hoping the Supreme Court would reach the opposite conclusion. But as it often does, the Supreme Court chose to take the case in a different direction.

The high court was actually considering two different questions in the case. Google not only argued that APIs can’t be copyrighted, Google also argued that its use of Oracle’s Java API was legal under copyright’s fair use doctrine. The Supreme Court decided to skip over the first question and focus on the second one.

“Given the rapidly changing technological, economic, and business-related circumstances, we believe we should not answer more than is necessary to resolve the parties’ dispute,” Justice Stephen Breyer wrote in his majority opinion. “We shall assume, but purely for argument’s…



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