United States: When Two Worlds Collide: The Oracle And Google Dispute

Last Updated: October 30 2013
Article by Nick Fiducia and Simon Briskman

The dispute between Google and Oracle, over whether Java application programming interfaces (APIs) can be copyrighted, continues. Many commentators believe that whichever way the case goes, it will have a profound effect on the future of software development.

Global software giant Oracle has refused to accept defeat in its ongoing battle with Google over Java and the fundamental building blocks of Google's hugely successful Android mobile operating system.

The story can be seen as the latest eruption in the battle between software owners and the copyleft movement. But, in a neat twist to the tale, Oracle is also an open source licensor and Google an IPR owner. The case brings home the blurred lines in the software industry between using intellectual property rights as a lever to protect investment while exploiting open source as a baseline for new innovations. Some big players now do both.

The dispute centres on Java, a very popular software platform. Much of the Java source code was released by Sun Microsystems under the GNU General Public Licence ('GPL') before Sun was purchased by Oracle, but not all. The GPL makes the Java core source code available under a free licence to those willing to make any developments to Java open source as well. Java has become very popular in the programming community for web-based applications. However, the Java mobile platform was not licensed under GPL, and Oracle intended to exploit it commercially by licensing Java packages for mobile devices.

Meanwhile, in 2005, Google purchased Android Inc., and completed the development of the Android mobile operating system using the parts of the Java software platform that were licensed under GPL. Instead of paying Oracle to license the elements of Java which were not available under GPL, Google wrote its own software which carried out the same functions and worked with the core Java code. At a stroke, Google had avoided Oracle licensing fees for the mobile platform.

Google needed to ensure that its own mobile software would communicate correctly with the Java software. Software programs communicate using application programming interfaces, or 'APIs,' which are a set of instructions governing the data inputs and outputs of the program. Understanding APIs allows a programmer to give data to a programme in the right format and make sense of the data the programme returns. Therefore, to work with the Java platform, the APIs in Google's software had to carry out exactly the same function as the Java mobile software that Google did not have a licence to use.

Google's software replicated the functions of the implementing code in the Java mobile platform, but did not copy the vast majority of the code, and instead Google wrote new code to carry out the same functions. Google did, however, have to copy directly from the Java mobile platform certain 'header' lines of code which state the specification of the function's source. Google also wanted programmers used to working on Java to recognise the functionality of the new Android operating system, and for code written in the Java language to achieve some degree of interoperability with Android, so it copied the names for its packages of functionality directly from Java.

Oracle has previously attacked Google unsuccessfully on the basis of patent claims relating to Java. Oracle's current claim is that, by replicating certain names, header code, functionality and the organisation of those names and functionality, Google has breached Oracle's copyright in Java.

The Court for the Northern District of California held: (1) that there is no copyright in names, titles or short phrases, so Google could not have breached copyright by copying the names of packages of code in Java, or the short phrases of the header code, (2) that there is no copyright in an idea, and that the organisation of names and functionality in this case is an idea, not the (copyright protectable) expression of an idea, and (3) that the header code must always be identical, so the merger doctrine (which applies to exclude copyright where an idea can only sensibly be expressed in one way) bars anyone from claiming exclusive ownership of it. In other words, Oracle's mobile Java APIs were not copyrighted.

Oracle appealed this decision to the US Federal Court of Appeals earlier this year. Oracle's appeal is (in summary): (1) taken as a whole, the copying of phrases of code and names is so significant (there are over 7,000 lines of copied code) that it is not excluded from copyright protection by virtue of consisting of short phrases and names, (2) the complexity of the structure of the packages of code is sufficiently creative to be protected by copyright, and (3) the header code is effectively a shortcut, and that it is not the case that the idea of the software must always be expressed in that way, so the merger doctrine does not apply to it and it is capable of copyright protection.

The outcome of this appeal will have a real impact on the software industry, and so it has attracted significant attention from leading industry players. Microsoft, EMC, NetApp and the Business Software Alliance have presented an amicus brief to the appeal court supporting Oracle's position, stating that copyright covers non-literal elements of software as well as the code, particularly the structure, sequence and organisation ('SSO') of the software, criticising the court's decision for taking an 'atomistic' approach to assessing copyright in the Oracle software which failed to assess the copied elements in the combination and predicting that upholding the court's decision would destabilise the software industry and harm incentives for innovation.

On the other side of the fence, the Application Developers Alliance, Rackspace, TMSOFT and Stack Exchange have presented their own amicus brief in support of Google's position, arguing that APIs should never be copyrightable, and that to make them subject to copyright would overturn several decades of established industry practice and understanding, and would make almost every player in the software industry subject to claims for copyright infringement.

One challenge with understanding this case and the underlying tension in the software industry is that the term API is a broad concept, and can be used to describe a wide number of things, from very simple input and output instructions to long and complex packages of code.

Oracle has been at pains to explain that a very substantial amount of effort has been invested in the design of the Java APIs and the structure and organisation in which they function, and has argued that to exclude them from copyright protection is a misapplication of previous US software copyright decisions, and fails (among other things) to recognise the creativity expressed in the SSO of the Java platform APIs.

Many businesses use open API models to enhance the value of their own software; for example Microsoft invested in encouraging developers independently to write programs compatible with the Windows operating system. This had the effect of increasing the value of the Windows platform itself: as there are more applications available for a platform, demand and take-up of that platform increases, which in turn encourages developers to write more applications compatible with that platform.

There are strong policy arguments in favour of mandating the free use of APIs to encourage interoperability, as restrictions on interoperability, particularly when applied to positions of market dominance, can be anti-competitive, and can have a chilling effect on software innovation, new market entrants and consumer choice. In Europe, the European Parliament long ago legislated through the Computer Programs Directive to permit decompilation of software and reproduction of code where required to permit interoperability with an independently created program.

The counter argument, which is a species of the core principle behind legal protection for intellectual property, is that developers of software platforms, such as Java, create value and, in licensing their work, in fact reduce costs by providing users with a common platform which helps drive innovation, and rational economic actors will not invest in developing their own platforms for licensing if they are not given sufficient protection against misappropriation of their intellectual property to see returns on that investment.

The reason these arguments are becoming so critical in the software world is because of the vast shift in the software development approach over recent years. Developers are far less likely to code from scratch for an application when they can build from established and reliable open source and proprietary components, leaving them to focus on the innovative elements of the application. However, there is clearly a difference in approach between using open source and proprietary components which, while inconvenient to the programming profession, reflects genuine concern from software owners.

While these two lobbies are hardly new, the issue of software interoperability is gaining in importance. Protecting investment while encouraging mass innovation requires a delicate economic and legal balance. In the US the pendulum has been swinging away from copyright protection for APIs, although it remains some distance behind the position in the European Union. Just how far the pendulum swings, we shall have to wait and see.

Originally published in Ecommerce Law & Policy, July 2013.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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