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Google warned the Supreme Court this week it must act now to reverse a bombshell court decision from this summer that could stunt the technology sector “by granting unwarranted, 95-year (or longer) monopolies on the basic building blocks of innovation.”
The case turns on a claim by Oracle that it owns 37 Java-related application protocol interfaces (APIs) that are used in Google’s Android operating system. If [company]Oracle[/company] prevails, it could seek millions from [company]Google[/company] and from thousands of Android developers around the world, and inspire other companies to make similar API-based claims.
The Google-Oracle fight dates from 2012 when a federal judge in California concluded that the APIs, which consist of short lines of code known as “Java method headers” and are used to call up basic instructions, did not qualify for copyright. An appeals court, however, overruled him and stated that the APIs are subject to the same copyright protection as works of literature or software programs as a whole.
Even though the appeals court send the case back to California to see if Google is eligible for a “fair use” defense, the company this week told the Supreme Court to take up the case right away because so much is at stake:
“This Court’s review is needed now, before tomorrow’s innovation falls victim to the decision below,” states Google’s 49-page petition (embedded below), which also cites “disarray” in the law.
In Google’s view, a newfound copyright on Java APIs is akin to granting a company a monopoly over the QWERTY keyboard, or on the familiar automobile arrangement of “steeling wheel, accelerator and brake pedal.”
The company also pointed out that the courts agree that, in regard to the 37 APIs in dispute, only three percent of the lines of code are the same — and that Google’s use of the-preexisting Java headers was in the interest of permitting developers to use a programming lingua franca, not to infringe on Oracle’s technology.
“Programmers have invested significant time and effort in learning the Java language, including the shorthand commands. But now, long after Sun lured computer programmers into the Java community… Sun’s successor Oracle is attempting to build a wall around use of Java’s method headers,” Google wrote.
Google’s filing also points to examples in the history of the technology industry, like Microsoft’s use of the WordPerfect interface, to make its case that standard operating methods are essential to building a common user base, and should not be subject to copyright.
An “end-run” around patent law
If the Supreme Court accepts the petition, it will have an opportunity to provide more clarity on the muddled topic of how intellectual property laws apply to software.
As Google noted, appeals courts across the country are split on whether copyright — which protects creative expressions but not basic ideas or methods — should apply to APIs.
Google argues that copyright should not apply, in part because methods and operations are already protected by patent law, which awards separate 20 year monopolies. Accepting Oracle’s argument, it says, would “thus allow copyright to be used as an end-run around the limits on patent protection.”
The ultimate legal issue in the case is likely to turn on whether the appeals court, known as the Federal Circuit, erred in how it interpreted a section of the Copyright Act called section 102(b), which excludes basic ideas and processes from copyright protection.
For now, though, it will be weeks or months before the Supreme Court announces if it will take the case.
Google’s petition appears to stand a better chance of being heard than most of the other cases landing on the court’s door (the Justices decide to hear only a very small percentage of all the petitions it receives). That’s because not only are important technology issues at stake, but because the Supreme Court has recently shown a keen interest in intellectual property issues. In particular, the top court has singled out the Federal Circuit for bungling patent law cases, rebuking it in a series of 9-0 reversals last term.
The Federal Circuit, which is held in low regard by many legal scholars, does not normally hear copyright cases, but did in this instance because when Oracle first sued Google it invoked both patent and copyright claims. If the Supreme Court decides to accept the petition, arguments would likely take place in early 2015.
Here’s Google’s petition with relevant parts underlined:
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