Chilling Effects Watch: Oracle v. Google
A lawsuit between Oracle and Google that went to the jury this week has been called the “end of programming as we know it” and the case that “will decide the future of software.” The media is probably hyperventilating again, says one legal expert, but real chilling effects could still stem from this strange but important legal dispute.
On Monday, lawyers for Google and Oracle presented closing arguments to a jury in San Francisco in the latest installment of a lawsuit that’s been in and out of courtrooms since 2010. At issue is Oracle’s claim that Google’s Android mobile operating system, purchased by Google in 2005, infringed Oracle’s copyright on the Java programming language, 37 of whose application programming interfaces (APIs) Android undisputedly uses.
Google says Sun Microsystems (Java’s creator and the copyright’s owner when Android was being developed) touted Java’s open APIs at the time. But Oracle, who acquired Sun in 2010, clearly doesn’t see Java as open to outside developers as its creator did. It’s only, Google says, after Java’s owners failed to develop their own line of Java smartphones that Oracle is now trying to elbow in on Android’s success.
“Oracle took none of the risk but wants all the credit and a lot of the money,” Google attorney Robert Van Nest said in his closing argument.
On the other hand, Oracle argued that copyright protection of Java APIs is not in question. Instead, Oracle lawyer Peter Bicks said the key point is whether Google enjoyed “Fair Use” protection of Java’s API. And on that score, he said, there was a “mountain of evidence” that Fair Use simply did not apply to Android’s use of the Java API. So, he said, the jury must find that Google violated Oracle’s copyright. And if the jury does side with Bicks, Google could face fines of as much as US $9 billion.
For everyone in software development—not just Google and Oracle watchers—this case could be significant, says Pamela Samuelson, Richard M. Sherman Distinguished Professor of Law at the University of California, Berkeley. Depending on the outcome, she says, it could alter how tech companies write, develop, and market their code.
APIs pervade software development today, she explains. From Amazon Web Services to Facebook to Apple to Google to countless interfaces between one software or hardware platform and another. Imagine a world in which big companies could descend on successful software products and reap rewards after the fact from a portfolio of claimed API copyrights.
A lot, Samuelson says, hinges on Bicks’ assertion that Java’s APIs are protected by copyright law. That appears to be technically true in this lawsuit, she says. But it is arguably not true in other courtrooms around the country. And that crucial legal distinction could make a difference both in the outcome of this lawsuit and its applicability to other lawsuits down the line.
“The judge instructed the jury that it doesn’t make any difference if they think an API is copyrightable; the line in this courtroom is that they are copyrightable,” she says. Yet, she says, other courts such as the U.S. Ninth Circuit and U.S. Second Circuit have longstanding case law (including Computer Associates v. Altai and Sega v. Accolade, both from 1992 that Samuelson has elsewhere detailed) that knocks down copyright claims on APIs.
Of course if APIs can’t be copyrighted, then Oracle doesn’t have much on which to rest its claim of copyright infringement. Google’s lawyer Van Nest likened the situation to putting the word “hamburger” on a menu and then claiming copyright on the word. “The API is ‘hamburger’ there, it’s the menu,” he said in closing arguments on Monday. Whereas, he argued, the creative expression (and, in this analogy, the copyrightable expression) comes in how the hamburger is sourced, developed, made, cooked, and served.
“If you’re a small startup and you’re reimplementing somebody’s API, the half-million dollars that a litigation might cost is a chilling effect,” Samuelson says. “Big companies can fight like this, but smaller companies have a tougher time.”
There’s a wrinkle in the Oracle v. Google case that enabled the judge and Oracle’s lawyers to simply claim APIs are copyrightable. That is, Oracle’s original complaint against Google involved alleged patent infringement as well as alleged copyright infringement. The patent infringement claim has since been disqualified, but its legacy remains.
Normally, Samuelson says, a copyright claim like Oracle’s would put it in line for a courtroom in the Second or Ninth District, which being the home districts of New York City, Los Angeles, and Silicon Valley, have the deepest copyright case law tradition to draw upon. These are the circuits in which, she says, any API copyright claim would face the hardest uphill climb.
However, because Oracle’s suit involved patents, she says, the case was instead routed to the court specializing in patent claims, the so-called Federal District Court. And so in a 2014 appeal, Oracle v. Google was argued in Federal Circuit court. This court, with its comparatively thin docket of legal precedents concerning software copyrights, ruled Java’s APIs were copyrightable.
So on one hand, it’s possible that even a strong finding for Oracle against Google could still have limited knock-on effects for other cases. Samuelson said the Second and Ninth Circuits’ caselaw disputing the copyrightability of APIs would remain in place regardless of the Oracle v. Google outcome. So even if Oracle prevails, a judge in the Second or Ninth Circuit might still be persuaded to treat the Oracle finding as an outlier.
On the other hand, savvy litigants might also add patent claims to any API copyright claim—which could then put the new claimant back in line for the same Federal District Court that ruled in favor of the copyrightability of Java’s API.
Thus even if the Second or Ninth Circuit would be friendly waters for a defendant in an API copyright suit, it also might not matter if it could be heard instead in the Federal District Court.
“This is the strangest Fair Use case I’ve ever seen,” Samuelson notes. Stay tuned, she adds, because whether Oracle or Google prevails, the decision will be worth hearing out.