Supreme Court leaves API economy twisting in the wind - what's next?
- Summary:
- The U.S. Supreme Court made a big non-decision this week that impacts the API economy. The case isn't an easy one to unravel - here's why we should care
Making sense of the Supreme Court decision
This case gets technical very quickly, so bear with me. By refusing to hear Google's appeal, the Supreme Court basically upheld the federal appeals court's ruling that "The declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection."
Google was attempting to overturn this interpretation that APIs are copyrightable, arguing that "The code at issue is not entitled to copyright protection because it constitutes a "method of operation" or "system" that allows programs to communicate with one another."
As I understand it, Google modeled its Android operating system using Oracle's Java API protocols, essentially forking Java into the Android operating system - an approach Java enthusiasts have criticized. Google will now appeal this ruling on a lower court level, but under narrower legal guidelines (more on that shortly).
At first glance, the decision seems to put an ominous chill on the abilities of tech companies to innovate (as well as on developers, who now have to cover their asses educate themselves on legal API contingencies). That's certainly the position of the Electronic Frontier Foundation, which filed an amicus brief supporting Google on behalf of 77 computer scientists: "Treating APIs as copyrightable would have a profound negative impact on interoperability, and, therefore, innovation."
But digging deeper into the case, it isn't quite as cut-and-dried as I idealistically assumed. Look no further than the vigorous debate of 423 commenters and counting on Ars Technica, many of whom are well-versed in tech history and the nuances of development. With that debate in mind, let me tell you what we know so far, and mix in my own stance:
The impact on APIs - what we know
- The rapid disruptions of the tech economy are historically rooted in the flagrant mimicking of software and hardware from one vendor to another (Exhibit A: the Microsoft-mimics-Apple-mimics-Xerox history, which gave Xerox no legal satisfaction and Apple only a trivial one, amounting to a trash can icon). The API economy ratchets up the stakes by introducing complicated nuances of copying interface designs, mimicking API structures, and forking open source code.
- The legal system, Supreme Court included, is not-yet-prepared to address the full implications of where APIs differ legally from copyright law, where they intersect, and how API protocols should (probably) have different copyright considerations than the underlying application code.
- The lazy narrative that Oracle is the evil corporate villain and Google the caped crusader, rallying on behalf of disruptive innovators everywhere, is way too simplistic. Both companies are protecting the interests of their shareholders. Both are also serious about supporting innovation. Both can make reasonable cases they have been wronged here, financially or otherwise (example: Google could have built their Android OS as Java open source, or arranged a full licensing agreement with Oracle).
- Google can (and will) still appeal this decision in the lower federal district court. But the appeal will be based on the limited scope of fair use. Whether or not Google prevails, the "fair use" copyright doctrine is an unsatisfactory way to deal with APIs. If Google wins on fair use grounds, they might save a few bucks, but the ruling would not establish useful precedents for future APIs infringements.
My take
APIs are going to be a pressure point in the digital economy for some time to come (look no further than the Zenefits-ADP face-off for another thorny example that goes beyond heroes and villains).
Whatever happens in the Google-Oracle case, it's going to take years for satisfactory legal precedent on APIs to solidify. In the meantime, large companies are going to be forced to consider the ramifications of copyright law on APIs and plan for contingencies.
The bigger concern is for developers. While I found coherent arguments on all sides of this debate, I kept coming back to a CNET quote which dates back to the 2014 decision:
"I think it's going to have a very chilling effect," James Grimmelmann, a copyright law professor at the University of Maryland in Baltimore, said of the original appeals court decision in 2014. "It says that, among other things, that if you build an app for one platform, and the platform owner rescinds access, you face copyright risks if you move the app to a different platform."
Developers aside, I do think Oracle has been unfairly painted as being out on a limb by itself here, whereas many of us are concerned with how to protect intellectual property in a digital context. But if Oracle is serious about supporting innovation, it should now dedicate itself to API-related industry conversations, and hammer out reasonable agreements that protect companies where appropriate, without putting a damper on developers.
For Oracle to declare victory seems both premature and self-centered. So far, nobody has won except the law firms involved. Now we head to the lower courts, where the API economy will get bogged down with inadequate and arcane fair use legalities. And on that front, I share the Electronic Frontier Foundation's concern:
Fair use is a complex and potentially expensive defense to develop and litigate. While Google has the financial resources to take that defense to trial, few start-ups have the ability to do so. The Federal Circuit’s decision thus could deter new companies from competing with a large, litigious competitor by using the latter’s APIs.
In other words, disruption is great, until it applies to yourself. Then you call in the lawyers, and place a side bet on the status quo. I don't have all the answers here. I usually say "stay tuned," but in this case, I'm going to say "get involved." Those of us with a stake in the digital economy need to inform ourselves. and be part of the solution for this pivotal issue.
Image credits: Juge - Commissaire Priseur © pict rider - Fotolia.com
Disclosure: Oracle is a diginomica premier partner as of this writing.