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Summary:

Fear of litigation may have prevented cloud providers from adopting AWS APIs to begin with and today’s Oracle ruling may have proved them prescient.

A new appeals court ruling, which found that parts of Oracle’s Java API set are entitled to copyright protection, may show why many cloud providers hesitated to support Amazon Web Services APIs from the get-go.

In theory it made sense for them to adopt AWS APIs because AWS was (and is) the market leader in public cloud, offering some degree of compatibility would be helpful for the newcomers. But that assumed that the use of another company’s APIs is not legally problematic.

Well, guess what? The use of another company’s APIs has become problematic since the Federal Circuit Court in Washington, DC found that Oracle could indeed assert copyright over 37 APIs — reversing a lower-court finding that APIs are not subject to copyright since they are an idea, not a creative expression of that idea.

In that case, now in its fourth year, Oracle claimed that Google infringed on various Java copyrights in building its Android smartphone operating system. Google has not said if it will appeal — although that seems likely.

Given the explosion in the use of APIs by anyone and everyone who builds applications and services in this world of connected devices, the appeals court ruling could have big repercussions. Asked for comment, Sam Ramji, VP of strategy at Apigee, an API management company, didn’t mince words:

“Oh, good lord. It is global thermonuclear war. It’s problematic at every level in the software and hardware stack from devices to cloud.”

The prospect of litigation around use of APIs or other code also explains why some vendors — most recently HP with OpenStack – offer indemnification to customers who implement their technology.

Rule #1: Ask first

So back to Amazon. Eucalyptus raised eyebrows two years ago when it added AWS API support to its private cloud infrastructure. Other cloud competitors — Rackspace for example — declined to do so — and some including cloud pundit Simon Wardley attributed this reticence to fear of litigation from Amazon.

I assumed Eucalyptus licensed the requisite IP from Amazon for this deal but wasn’t sure so asked about this on Friday. And, Eucalyptus CEO Marten Mickos reponded via email:

“We did not have to get [a] license, but we did get one. We have belts and suspenders. We built the API compatibility in a way that cannot be contested. But we also got a license from Amazon as part of our business partnership.

Best practices and common sense dictate that if Company B wants to use Company A’s APIs, it should talk with Company A first. “It’s always been a legal grey area whether an API that a company publishes is reusable and I would say it just became more dangerous to use someone’s API design without consulting them first,” said Steve Wilmott, CEO of 3Scale, another API management company.

In the Eucalyptus case, Amazon is likely fine with Eucalyptus using its APIs because Eucalyptus helps AWS work better in a hybrid cloud model– which mixes public cloud and private cloud resources for a given company.

However, if Company B uses Company A’s APIs to replicate the service that Company A built its business on, there could be trouble. “Think of Amazon’s APIs as the front door to its store, configured in a certain way — of course Amazon wants people to use that front door. But if by copying that API [a competitor] sets up their front door the same way, Amazon would be upset,” Wilmott said.

So it makes sense for other cloud companies with designs on AWS public cloud leadership to be wary of using AWS APIs — even if AWS has not telegraphed intention to litigate.

APIs as creative content

Joe Emison, CTO of BuildFax, a big AWS user who has been following the Oracle case, said he understands the complainant’s point of view in that many APIs result from big investment. In the case of the AWS API, Amazon spent considerable time and money devising a way to make calls secure and figure out all the parameters and, that, he said, “should get some legal protection against unauthorized copying/redistributing/etc, unless there’s some exception that should allow it.”

The fair use exception to copyright law could also apply in API-land and, indeed, the appeals court ruling means a jury will decide if it does. But, it gets “much more difficult to prove fair use when you’re using something that someone else made to make money for yourself, and it gets even harder if that’s money you’re taking away from the person who made the thing in the first place,” he said.

In other words: Yikes.

 

 

  1. Contrel Walter Friday, May 9, 2014

    “we also got a license” ? Grammar much?

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    1. I don’t see anything wrong with his grammar there.

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  2. Steve Ardire Friday, May 9, 2014

    > In other words: Yikes.

    You can say that again ;-)

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  3. No way in hell fair use applies. Not a chance.

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    1. Joe Masters Emison Friday, May 9, 2014

      For Google, you’re probably right. But generally speaking, both fair use and the merger doctrine should limit the impact of copyrightable APIs.

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  4. Don McCallum Friday, May 9, 2014

    So I guess I should uninstall anything that depends on Java from my computer and find some other way to get my work done. I class Oracle with Microsoft in terms of greed. They did not even develop Java but bought it when they bought the remains of Sun. Too bad Sun didn’t publish it under the GPL before Oracle got their hands on it.

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  5. jamespaulwhite Friday, May 9, 2014

    Before folks get too wound up over this decision (which flies in the face of previous API copyright rulings that focused on the critical issue of whether the expression(s) can be made in another equivalent way – if not then copyright does not apply for the same reason you can’t copyright (most?) mathematical expressions) lets remember OpenJDK.

    Licensing OpenJDK under GPL v2 was one of the few truly good things Sun did for Java. I’ve never understood why Google didn’t just use that license from the start, the Android kernel is Linux after all. I predict that if Google can’t reverse this decision on appeal (which I think is fairly likely considering the history of software copyright), then they will switch to GPL v2.

    Ah, well I did google up Google’s rationale for using Apache. Turns out carriers hate GPL. Too bad for them.

    http://source.android.com/source/licenses.html

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    1. When Google started Android Sun didn’t had changed the license for Oracle.

      The only one available was the Apache Harmony one, the one Google used

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    2. Following on to jamespaulwhite’s comment, if indeed Google switches over to GPLv2, this is going to make Richard Stallman look like a hero and visionary. This would be good because, after all, if you can’t trust copyright law then better to copyleft! http://en.wikipedia.org/wiki/Copyleft

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  6. Nice Article

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  7. Jamie Costello Friday, May 9, 2014

    This is much bigger than AWS compatibility. If this holds, then anyone who uses Java (and that is pretty much everyone significant) can be held liable by Oracle, if Oracle views them as a competitor. Also, any company that has developed an integration to any other company’s product via their APIs could be in legal trouble. I can’t even begin to imagine what the ramifications would be.

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    1. agreed, jeff Roberts’ earlier story linked in the first graph of this story covers the case itself — i was focusing here specifically on potential impact on public cloud/aws ecosystem. Here’s jeff’s story:

      http://gigaom.com/2014/05/09/tech-world-stunned-as-court-rules-oracle-can-own-apis-google-loses-copyright-appeal/

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      1. What does this mean for Java Virtual Machine (non-Java) hosted languages like JRuby and Clojure? Oh boy, I’m not sure I’d want to be in Rich Hickey’s (Clojure creator and founder of Datomic) shoes right about now.

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  8. I wonder who will make the first move here. This ruling really only benefits the incumbents in a particular market, as it will allow them to use their large size to attack competitors who provide API compatibility to help people switch. It puts APIs in the same group as patents where startups generally ignore them (and get ignored by their competitors) until they’re large enough, then litigation begins. So although this is a terrible result, it may well be that in practice few companies are affected.

    I wonder what Amazon will do. They have the most to gain from stopping API compatibility from competitors e.g. Google Cloud Storage’s interoperability with Amazon S3: https://developers.google.com/storage/docs/interoperability

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  9. And now whole hell will break loose: Linux API is based on Unix one. And Unix is copyrighted. And OS X too. And even some parts of Windows – like networking API is also based on Unix APIs.

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  10. brianmccallion Saturday, May 10, 2014

    I just finished reading the the sixty-nine pages of the decision. It’s a good read and goes to considerable effort to clearly separate and address the issues. Rather than cause for panic, I was impressed by how thoroughly and rigorously the issues were considered. When you read the facts you learn that Google admits to copying extensively and that doing so was because it did not wish for Android to be compatible with Java and how this was one of the key license provisions over which Oracle and Google could not come to terms. It’s Scott McNeal, Founder of Sun Microsystems defending the Java language against calculated infringement, not a litigious patent troll at work trying to prevent the use of Java or harass normal users. As I right this on an Android device, I can understand where Google may have felt the urgency to “speed now pay tickets” later. Yet what occurred was out and out theft. For small and large software developers alike copyright law that protects intellectual property is essential. Towards the end of the decision I learned that Google continuously argued that only patent law, not copyright law should apply to software at all–not just to APIs. The way in which Google approached another company’s business and in a culculated and ruthless manner broke the law rather than lawfully license intellectual property is the real story. But I like all the speculation and thoughts specific to Cloud. I highly recommend readers follow the excellent links Barb provided and read the entire decision –it’s fascinating and thoughtful and very well written by a judge who clearly understands intellectual property law and its role in business and society.

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