Login | November 26, 2020

Google v. Oracle could change all of the software development business

RICHARD WEINER
Technology for Lawyers

Published: October 23, 2020

The most important court case in the history of potentially copyrightable software was argued at the U.S. Supreme Court in early October. Google v. Oracle will decide whether a fundamental enabling program of all computer programs called API’s are subject to copyright or not. Or, based on several justice’s statements during oral arguments, get sent back to the appellate court for further clarification.
At issue is how to classify application programming interfaces (API’s). An API is, simplistically, a bit of code that allows computer programs to talk to each other and which sets the rules for how that engagement occurs. They are so widespread and ubiquitous in computer programming that they are essentially taken for granted. API’s are a part of every complex computer programming layout. All software developed to date has been based on the premise that API’s are a general use program not subject to copyright. They have always been found to be within the fair use structure of copyright law, including by the 2016 jury which found so in this case.
And then the U.S. Court of Appeals for the Federal Circuit made the decision being appealed, finding that an API was not fair use but was instead tantamount to a new computer program.
If SCOTUS upholds that decision, the entire computer programming industry will be restructured in one move, ensuring an untold number of new copyright lawsuits, destruction of innumerable working agreements among software companies and years of chaos.
The case itself stretches back to Oracle’s 2009 acquisition of Sun Microsystems and its Java operating system. Long story short, Google used Java APIs, although not Java itself, in developing its Android OS. Oracle sued. (Google has made nearly $50 billion from Android since then).
While evincing an understanding of the technology, some of the justices focused on the procedural history of the case, wondering very directly why the appellate court did not take the jury’s holding into consideration while seeming to carve out a completely new take on what an API actually is. If the Justices want to punt this case, they can easily send it back to the lower courts to decide that issue.
In the meantime, the entire software industry is holding its breath to see how this case winds up. Billions and billions of dollars and an entire industry are riding on this decision.


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