What’s in a Copyright? Java API Case Before U.S. Supreme Court

qwertyInnovation is threatened by certain of the legal systems that were created to incentivize it. It is threatened because there are intellectual-property claims everywhere one turns, and if new innovations are not allowed to build upon older work, innovation will become impossible. Whatever is fenced in, the fencing in the plains cannot become so predominate a fact that there is no common intellectual grazing ground.

Nobody owns the standard arrangement of keys on a keyboard, an arrangement known as QWERTY, and one that has been in place since the early days of typewriting. It is likely for the best that nobody owns such systemic facts, because they underlie so much else. But it isn’t always clear where the line is to be drawn between QWERTY and IP. When aggressive litigants expand the fencing … well, one worries.

So now the world gets to watch Google square off against Oracle for very high stakes. In contrast to much recent litigation over software, the key issues here arise under copyright law, not patent.

Back and Forth Over Java APIs

About a year ago, Judge Kathleen O’Malley on behalf of a three judge panel issued a decision reversing a trial court judge. The decision has drawn a great deal of commentary over the intervening months, and the story by now has the twists and turns of a good airport-book-store novel: the jury verdict had gone for Oracle; the district court judge had eviscerated that ruling, adopting Google’s arguments; O’Malley supported Oracle; Google has now in reaction brought the matter before the U.S. Supreme Court.

Oracle claims that Google is misusing its Java APIs. [An API is an “application programming interface,” and the APIs in question are written in the popular Java programming language developed by Sun Microsystems in the mid-1990s.]

Google responds that the programming language Java is publicly available (that point is not in dispute) and that the Java APIs are really just a set of “basic shorthand commands” within the Java language, so the latter is as public as the former (that, of course, is the dispute.)

This isn’t simply a matter of what investments to make. Taking a position on the expected outcome of litigation is always a tricky proposition. But the underlying issues in Google v. Oracle go to how one makes investments at all, what are and will be the mechanics of trading. Parties have claimed intellectual property in such basic ideas as the hedging of energy commodities, or the management of settlement risk through a third-party intermediary. Yes, those were patentability issues, but any of them could without much strain have been framed in copyright terms.

Late in the Term

The Court of Appeals, in its sweeping ruling for Oracle, said that all elements of an original work, including a JAVA API, are entitled to copyright protection “so long as the author had multiple ways to express the underlying idea.” Google employed Java, and its APIs, in the development of its Android smartphone operating system.

What brings all of this to the fore just now is an impending deadline. The Supreme Court will likely issue its own opinion by the end of the term, that is, by late June. The Solicitor General, Donald Verrilli Jr., has not as of yet presented the administration’s view on this controversy to the Court via an amicus brief. Such briefs are often persuasive to the Justices, and the Obama administration has weighed in on the other big IP disputes at SCOTUS during its tenure. So it is likely to weigh in on this one. But on whose side?

It seems likely Verrilli wants to weigh in by the end of this month, to give the Justices a month to digest his views before formulating their own.

Consider this blog post a curtain opener. I hope to comment on the show as it unfolds.

 

 

Be Sociable, Share!

Leave A Reply

← Copper Prices: Why the Downslope? Lies, Damned Lies and Alpha →