In an unsurprising ruling today, the Supreme Court balanced a little of the good it did last week by denying Google's appeal against Oracle in the matter of the copyrightability of APIs. The case will now be returned to the lower courts to hear Google's fair use defenses.
While the decision was foreshadowed by the amicus brief delivered by the Solicitor General a month ago, it's still bad news for 21st century developers and open communities. Denying the appeal gives corporations with a 20th century mindset the ability to require permission from developers seeking to innovate on top of their platforms. Instead of being able to just assume that use -- especially re-implementation -- of an API is OK, developers will now need to avoid any API that is not explicitly licensed as open.
They'll have to do so not because it's certain a copyright lawsuit would prevail -- there's almost certainly a fair use defense coming from Google, as suggested by the Solicitor General himself in some detail -- but because gaining certainty on the matter will now require either the additional step of seeking permission from the copyright holder before innovating (if it is not given in advance using a Creative Commons or open source license) or taking the risk and possibly ending up in court facing down a predator.
Not all of us can afford a fair use defense in court against Oracle.
However, not all innovators will face the additional burden. Developers in Europe enjoy clarity both as a result of the interoperability provisions of the European Copyright Directive and the decision of the European Court of Justice in 2012 to uphold the Directive, including keeping APIs free.
But developers targeting the U.S. market will need to take care when they build on proprietary interfaces like the Java APIs -- or, more likely, take care to avoid them.