On appeal, Oracle may beat Google and kill innovation

With Oracle v. Google, programmers won when courts said APIs could not be copyrighted; now that ruling may be reversed

Can programming APIs be copyrighted? We thought we got our answer when Judge Alsup found in favor of Google, but it seems the Federal Circuit appeals court is not convinced, even in the very month another case brought closure to the same issue in Europe. A negative outcome could cede yet more advantage to Europe's technology innovators.

Finishing its long journey back in a British appeals court, the case of SAS vs. World Programming finally closed at the end of last month. In the end, World Programming was found to not have infringed SAS's copyright by re-implementing its programming environment.

[ Simon Phipps tells it like it is: Why software patents are evil. | Track trends in open source with InfoWorld's Technology: Open Source newsletter. ]

There hadn't been much legal disagreement on the issue, with the U.K. High Court and Court of Appeal, as well as the European Court of Justice all concurring on the ruling -- the devil in the details drew out the lengthy appeals. This was the expected outcome in Europe, since the European Copyright Directive has long protected reverse-engineering of software for interoperability purposes. European companies are free to keep markets competitive this way.

Just 19 months ago, common sense seemed to prevail in the United States as well. In May 2012, Judge William Alsup ruled APIs noncopyrightable as part of the verdict in the epic trial of Oracle's attack on Google's Android platform. Inevitably, Oracle appealed, and this week we've been hearing reports of the progress of that appeal before a three-judge panel on the Federal Circuit. It's not looking good for programmers.

As far as I can tell, there's broad agreement that most APIs are not ordinarily subject to copyright -- they're like a library shelf that the larger (copyrightable) implementations stand on, organizing without themselves being creative. But Oracle argues its shelves for Java are themselves a work of art, like the design of a classical library. Alsup was not persuaded, and I doubt any European court would be either.

Unfortunately for Google, the case's origin as a patent suit means it's being heard by the Federal Circuit. That court is well known as a supporter of more extreme interpretations of intellectual property rights, and if reports are true, it's veering toward the opinion that Oracle's gilded bookshelves are indeed a work of art, deserving of copyright protection as much as the code that sits on them.

Of course, Google was not copying an existing work. Java ME, although a cash cow for Sun (then Oracle), was not good enough for a mobile device market to be based on it. Handset vendors were universally ignoring write-once-run-anywhere and implementing variants of Java ME every time a new handset appeared on the market. Java SE was not suitable for mobile consumption, either.

But the generic Java platform -- the language plus the basic class libraries -- is known to almost every college student and offers a great basis for innovative new uses. Google built on that wide knowledge of the Java language and standard libraries to create a fresh, different environment for mobile device computing, copying neither Java ME's weaknesses nor Java SE's clumsiness and weak GUI. I find it hard to understand how Google's innovation based on this public knowledge is anything but good.

It's highly unlikely Google will fold if it loses the appeal; if Oracle wins, this won't be the last we hear of the case. Either the Supreme Court will be asked to rule on the issue, or the Federal Circuit will decide to gather en banc (with all judges present at once) to consider the issue. A rehearing by the Federal Circuit is unlikely to be good news for programmers. The Federal Circuit is likely to find against Judge Alsup's good sense. A visit to the Supreme Court would be much less predictable. Many cases are appealed there, but few are heard.

Whatever the outcome, both the practice of innovating upon a base of common knowledge and the freedom of programmers everywhere to use APIs with impunity is at stake. A finding against Google would be yet another vote to give the innovation advantage to European companies and to mire the United States in legacy intellectual property law.

This article, "On appeal, Oracle may beat Google and kill innovation," was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.

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