On Wednesday the U.S. Supreme Court will hear oral arguments in the long-running case of Oracle v. Google. We’ll be following closely, and looking for signs that the Court will reverse the Federal Circuit’s dangerous decisions in this ground-breaking litigation. And then we’ll be waiting and hoping the Court will issue an opinion explaining that giving copyright protection to Application Programming Interfaces (APIs) is a bad idea or, if that protection exists, that reimplementing them is a lawful fair use.

To summarize the last nine years: Oracle claims a copyright on the Java APIs, and that Google infringed that copyright by using certain Java APIs in the Android OS. When it created the Android OS, Google wrote its own version of Java. But in order to allow developers to write their own programs for Android, Google used certain specifications of the Java APIs. Since APIs are, generally speaking, specifications that let programs talk to each other, it would strike at the heart of innovation and collaboration in technology to declare them copyrightable.

EFF has filed numerous amicus briefs supporting Google and, more importantly, the pro-innovation stance it is taking in this case. As we’ve explained before, the two Federal Circuit opinions are a disaster for innovation in computer software. Its first decision--that APIs are entitled to copyright protection--ran contrary to the views of most other courts and the long-held expectations of computer scientists. Indeed, excluding APIs from copyright protection was essential to the development of modern computers and the Internet.

Then the second decision made things worse. The Federal Circuit's first opinion had at least held that a jury should decide whether Google’s use of the Java APIs was fair, and in fact a jury did just that. But Oracle appealed again, and in 2018 the same three Federal Circuit judges reversed the jury's verdict and held that Google had not engaged in fair use as a matter of law. Having gone to the trouble of sending this case to trial, at enormous expense to the parties and the court system, you might think the Federal Circuit would respect the jury’s decision. It did not. In the court’s view, the jury’s finding was simply advisory.

That ruling created enormous legal uncertainty for any software developer thinking about reimplementing pre-existing APIs. If the first Federal Circuit opinion means that APIs are copyrightable, and the second opinion means that a jury isn’t allowed to decide that using a competitor’s APIs is a fair use, then there are few, if any, ways that a second competitor can enter a market with an API-compatible product. 

Much of the argument Wednesday may be focused on a more procedural question: whether the Federal Circuit overstepped when it substituted its judgment for that of the jury on the second round. The Supreme Court asked for additional briefing on the standard of review, i.e., whether the Federal Circuit should have simply considered whether the jury’s conclusion was reasonable and, if it was, allowed the verdict to stand.

But we are hoping the final ruling takes a bolder step, and clarifies, once and for all, that the APIs at issue simply weren’t copyrightable in the first place. A ruling for Google on fair use grounds would set a good precedent for the next developer of API-compatible software to argue that their use is also fair. But those arguments take time, money, lawyers, and, thanks to the outrageous penalties associated with copyright infringement, come with a substantial risk. And beyond all those knowable costs, wedging a layer of copyright permissions culture into API compatibility comes with serious unknowable costs: how many developers will abandon ideas for competitive software because the legal risks are too great? Huge corporations like Google can take those chances. Small startups – and their investors – will not.

The Federal Circuit created a dangerous precedent that will only discourage competition and innovation just when we need it most. The Supreme Court can and should fix this mess.








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