The impact of Oracle's defense of API copyrights

Oracle CEO Larry Ellison. Credit: Source: REUTERS/Robert Galbraith

Long-held practice of API copyright exemption jeopardized

Recent examinations of Oracle's strategy in its Java copyright infringement case against Google reveal tactics that could seriously jeopardize the US software industry, depending on how the Ninth Circuit Court rules.

The broad issue of the lawsuit, launched in August 2010, is this: Oracle acquired Sun Microsystems' Java technology when it bought Sun in 2010. Google needed to use Java-like technology in its Android mobile operating system. Rather than licensing Java from Oracle to use in Android, Google developed a "clean room" version of the Java virtual machine, Dalvik, for Android instead. Oracle now claims that Dalvik deliberately infringes on Java, despite efforts to build Dalvik from scratch.

[Oracle asks court to force Motorola to testify and Google, Oracle still battling over Android e-mail]

The case is still in pre-trial discovery mode, with each side trying to narrow down the issues that will be actually reviewed in trial. One such narrowing is Google's motion for summary judgment filed on August 1, which argues that while Google did copy 37 Java APIs into Android, such application programming interfaces are not copyrightable.

If Google's motion for summary judgment were granted, it would blow a pretty big hole in Oracle's case. If APIs were found to be non-copyrighted, then Oracle could hardly claim Google caused a problem by using the Java APIs.

But Oracle's response to the August 1 motion is to challenge the entire premise of API copyrights (or lack thereof). In a motion filed over the weekend, Oracle's motion of opposition argues that APIs do indeed fall under copyright.

If Oracle's motion is upheld, then this would have enormous consequences for the software industry in the US, which--like other nations--has traditionally held that APIs are not enforceable by copyright.

To examine the impact, here's the beginner's guide to APIs. APIs are the aspect of a computer program that enable programmers to "plug in" to that program. They are what enable applications to communicate with each other. Historically, APIs have been regarded as not falling under copyright--the reasoning being that APIs are not creative implementations but rather statements of fact. "To access library A, use this command."

Muddying this issue is the notion of open and closed APIs. "Open" APIs are APIs with terms of use that are fairly free: a programmer can register with the project and then start coding. Twitter used to have very open APIs, for instance, but in recent months they have started to close their APIs, such as when the company closed their APIs to third-party ad vendors. "Closed" does not refer to the copyright, then, but rather the terms of use: who gets to the use the API, how they can use it, and why.

Curiously, even a closed API is not regarded as copyrightable, though that's never been tested in court. Usually the term of use are binding enough to keep developers in a closed API situation from running off willy-nilly with copied API code. Such rogue developers would get busted for violating the terms of use, not copyright.

Java's APIs, in case you are wondering, are very open. They pretty much have to be, because they are the only way any Java programmer could make use of the Java programming language to build applications. In practice, Java APIs are so open, they are often found in published books.

In their case against Google, Oracle has asserted that APIs are not exempt from copyright, because they are not purely factual expressions and their use in other applications besides Java represents intellectual property theft.

The problem with this argument is immediately apparent to any software developer interested in interoperability. Reverse-engineering and simple application communication would become impossible if copyrights were claimed on APIs and other aspects of development, such as file formats, class names, or method names. Works could only be completed after negotiating whatever copyright hurdles were put in place around every API and every other interoperability tool.

This is not speculation, by the way. In their objection filed August 20, Oracle explicitly states this in one of the headers of their arguments: "Copyright Law Protects the Names of the Packages, Classes, Interfaces, Fields, and Other Elements in the Java APIs"

By using this tactic, Oracle is setting up a very dangerous precedent. If APIs are found to be something under copyright, then almost immediately companies more interested in money than sense would attempt to set up copyrights for all such elements, creating a legal mess that would make the current software patent wars look like a schoolyard scuffle. How bad would it be? Simon Wardley, board member of the Open Cloud Initiative, posted a tongue-in-cheek comment on Google + yesterday that summed up the potential nightmare scenario for the US from perspective of a UK competitor:

"Obviously that would be great for trolls and potentially a complete nightmare for the software industry in the US--you could imagine the flurry of copyrighting object/methods names... oh this could be fun. It could also seriously harm major software players and impact open source etc.

It is quite probable that Oracle's own tactic here would blow up in their face. How many Oracle applications use other vendors' APIs to interoperate? And how many developers use Oracle's APIs to work with Java or MySQL? With copyright enforcements in place, developers would scarcely want to work with tools built by the one company that thinks APIs, class names, and object names should be enforced.

Oracle may feel they are backed up against the wall, since dismissal of the API infringement claims would weaken their case even more. Perhaps they could have argued that Google mis-used the APIs under the terms of use, but that seems unlikely given the past openness of the Java APIs. They would have to start suing technical book publishers and authors next, for example.

Oracle is certainly within their rights to fight for their intellectual property, if any such theft exists. But the price of success with this specific tactic may be bigger than what Oracle (or any other US software company) can ultimately pay.

By taking this path, Oracle is essentially trying to exterminate ants in their house by using C4 plastic explosives. By golly, they will get rid of those ants, all right, but the house won't be left standing in one piece, either.

Read more of Brian Proffitt's Open for Discussion blog and follow the latest IT news at ITworld. Follow Brian on Twitter at @TheTechScribe. For the latest IT news, analysis and how-tos, follow ITworld on Twitter and Facebook.

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