What Google's petition to the Supreme Court really means

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Credit: Philip Michaels

Following the reversal of its historic win against Oracle over the copyrightability of APIs, Google has asked the Supreme Court to intervene

In a move that could have significant long-term consequences for open source software, Google applied to the U.S. Supreme Court (SCOTUS) for a writ of certiorari -- permission to appeal -- for the reinstatement of its victory over Oracle. You'll recall Oracle sued Google for patent and copyright infringement over Google's use of a small subset of the huge Java class API in Android. Oracle lost, then won on appeal.

The story so far

In 2012, a jury in the district court in San Francisco found no patent infringement on the part of Google -- assisted by Google's invalidation of most of Oracle's patent claims. In a scrupulously careful judgement, the judge then found that Google had no case to answer as a matter of law, since APIs are merely a way to access the copyrighted implementations of the classes and not themselves a copyrightable work.

This spring, Oracle's appeal to the notoriously pro-rights-holder Federal Circuit (CAFC) was successful, overturning the copyright decision and imperiling not just Android but any users of large-scale APIs owned by a single corporate entity.

I've never been sure Oracle really wanted this outcome. Maybe it thought its patent claim would easily succeed and it would not need to follow on to the copyright claims. After all, had such a precedent existed when Larry Ellison was bootstrapping Oracle, he might not have been free to use the SQL he heard about at IBM's public lecture. Shades of Disney trying to stop others monetizing culture when their own business was built on it?

Google's petition to SCOTUS

Google makes a series of compelling points in its petition. The company asserts that there's split opinion on the applicability of copyrights to APIs in the circuit courts -- a classic cue to SCOTUS to intervene -- and the matter is "a recurring question of exceptional importance." These points alone seem strong to me. But Google also says CAFC has made a serious error that ignores the precedent of earlier SCOTUS decisions and violates the distinction between copyright and patent as monopolies.

On the first point, Google refers back to the SCOTUS Lotus v Borland case in 1996. Google points out that "methods of operation embodied in computer programs are not entitled to copyright protection," then asserts that the Java class APIs are a method of operating the Java class implementations. Since Android's implementations of the Java APIs are Google's original work, the company claims copyright does not apply.

On that second point, Google notes that methods of operation can be monopolized by patents, whereas software implementations can be implemented by copyright. To allow methods of operation to be copyrighted as well as patented is not permissible.

The petition seems well argued to my untrained eyes, but there's no consensus among the legal sources I have asked, so it's an open question if the court will grant the appeal. I'm sure we will see a number of third parties contributing opinions to the court if the case is accepted. As for resolution, who can say when we will know? SCOTUS moves in a mysterious ways.

Why the petition matters

While the case will have huge consequences for Android, does it really matter for the rest of the software industry? After all, no one is arguing that software itself can't be copyrighted, and very few APIs are large enough to fall within the scope of themselves being works of creativity deserving copyright.

The Amazon Web Services API springs to mind -- suggesting HP had a legal reason to buy Eucalyptus, which had pre-existing agreements with Amazon. Indeed, Google draws in AWS and OpenStack in its petition, but it suggests the impact is narrower than we might have feared, affecting only substantial systems of APIs.

All the same, if Oracle were to ultimately win, open-source-licensed APIs would suddenly become much more important and the work of creating developer ecosystems around proprietary APIs would become much more challenging.

The case will be a significant landmark for the technology industry no matter what outcome. Let's hope SCOTUS accepts the case and gives us a definitive answer so we can move on.

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