The Friday Roast - when politicking interferes with API copyright

Profile picture for user gonzodaddy By Den Howlett May 28, 2015
The seesaw decisions around the Oracle v Google API case are worrying. Flaws in the law exacerbated by political posturing make for bad decisions.

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Developers around the world must be deeply concerned at the amicus brief sent by the Obama administration to the Supreme Court in the Oracle v Google API copyright infringement case. In summary from Business Insider:

At issue is whether Google illegally copied part of the Android mobile operating system from a technology called Java, which is now owned by Oracle. Some computer experts argue, however, that the part Google used should be broadly shared to make it easier to build new software programs.

The parts at issue relate to 700 Java APIs Google copied and for which Oracle is seeking damages for illegal copying. This is the code that allows different computer programs to talk to one another. Early court decisions favored Google but appellate decisions favored Oracle. Now the Obama administration has stepped in, backing the appellate decision, which at the time drew widespread criticism from developers and legal experts.

The Department of Justice has filed an amicus brief siding with Oracle and recommending that the Supreme Court not look at the case (at least not yet). The Supreme Court had asked the Department of Justice to weigh in.

If you're confused then you're not alone. This is an important test case because if Oracle wins then the future of much software is at risk. Why? We live in a world where the ability to join or stitch together many different systems is critical. Google has actively nurtured an ecosystem of developers that provide mobile solutions of all kinds. An indication of the success comes from recent reports that say Google has seen 50 billion downloads from its Play Store. Plenty of those apps are free while providing real value to users. If there is uncertainty about who can charge for what in the API code then programmers have a serious problem.

Convention among developers is that an API provides the easiest way to accomplish this gluing process. So if Oracle wins on the question of copyright then in theory it can charge anyone for the use of certain parts of acquired technology which, to present have been free.

While the amicus brief rejects earlier decisions on broad matters of copyright, it says:

The general concerns that petitioner raises are substantial and important, but Section 102(b) is not the appropriate statutory provision to address them. Rather, legitimate concerns with interoperability and lock-in effects are far better addressed through the fair-use doctrine codified at Section 107.

"Fair use" as the decider is rejected by most because it doesn't draw the kind of line developers want to see between what is and what is not copyrightable and especially in the context of Java which has always been thought of as a free resource.

More to the point though, this has become a political football. This from Fortune:

The Solicitor General’s recommendation, which reportedly came after ideological fights within the White House, does not necessarily mean the Supreme Court will refuse the case. But, since the Court typically looks to the Solicitor General for guidance, Tuesday’s filing diminishes the chance that Google’s appeal will be heard.

I can imagine armies of lobbyists from both sides are all over the Obama administration with representations. That should not be the case. Reducing this critical topic to politicking is bound to lead to bad decisions. It is almost a foregone conclusion except for one small problem facing the US administration.

European law specifically excludes the ability to copyright APIs so in one sense, the US administration appears to be handing a competitive advantage over to European developers. I can't see that holding up.

On the other hand, Simon Phipps at Infoworld believes the current arguments will fall down:

I think the Solicitor General's critique reflects the incorrect understanding of a non-programmer. An API is certainly written in code, but it's being used in a different way than the (indisputably copyrightable) use of code in an implementation. As Mike Godwin of the R Street Institute observes, asserting the first use of code is not copyrightable and the second is, is no more dangerous than asserting a threat to the copyrightability of prose by treating a recipe differently from the description of the actual preparation of a meal made according to the recipe.

Whichever way this goes, the story is far from over. There will be further decisions and appeals and further cases. What won't go away though is the appetite for open source software. The problems currently being considered by many software companies are too big to rely solely upon in-house resources. They need the open source community which in turn needs certainty on this critical issue. It is no place for politicking.

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