The most significant software copyright case in a generation

27 Nov 19

On November 15, 2019, the US Supreme Court granted certiorari in (ie, agreed to hear the final appeal of) Oracle v. Google, with dramatic global  implications for interoperability, innovation, and competition. The culmination of nine years of furiously fought litigation between two technology titans, this case concerns nothing less than the scope of copyright protection for software and the freedom to interoperate.

In 2007, Google developed the Android smartphone operating system to be compatible with the Java platform by copying the Java application programming interfaces (APIs) originally developed by Sun Microsystems, the company that invented Java. By leveraging the existing massive Java developer base, Google’s actions made it easy for Java developers to write applications for Android. 

After Oracle acquired Sun in 2010, Oracle sued Google for copyright infringement predicated on Google’s use of the Java APIs. The case has generated two appeals to the US Federal Circuit Court, with the latest ruling, we just learned, now on appeal to the US Supreme Court.

Both Federal Circuit rulings, against Google, have essentially conferred patent-like protection on software interfaces—contrary to the intent of Congress when it updated the US Copyright Act in the late 70s to extend copyright protection to software.

As a former Java technology licensing lawyer (Assistant General Counsel) at Sun, I have been highly critical of the now notorious twin rulings of the Federal Circuit in this case: first, when the Federal Circuit erroneously ruled that the APIs at issue are copyrightable, and again, when the same court erroneously held that Google's use of such APIs was not fair use as a matter of law. Read more about both decisions at epiclaw.

The software industry, and indeed every industry that relies on software, has thrived for decades without the encumbrances of proprietary claims over APIs. Because the Federal Circuit’s decisions destroy the balance between copyrightable expression and uncopyrightable ideas in software, they threaten competition and innovation. The Supreme Court’s entre is a surprising and welcome development.

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