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Here’s The Scariest Thing About The Oracle-Google Software Copyright Battle

Tech pundits have called the case a catastrophe for innovation, but we may never know what the actual damages are.

Here’s The Scariest Thing About The Oracle-Google Software Copyright Battle
[Photo: Westend61, Getty Images]

The software industry was surprisingly calm in the face of apparent disaster last week.

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On June 29, the U.S. Supreme Court decided not to review Oracle’s copyright infringement case against Google. Software copyright cases are typically dull affairs, where lawyers get rich, licensing fees change hands, and business continues as usual. But when the Supreme Court passed on hearing Google’s appeal of an earlier Federal Circuit decision in Oracle’s favor, pundits and advocacy groups warned of deep, disturbing implications.

Vox‘s Timothy B. Lee said the news was “a disaster for the software industry,” warning of “more compatibility problems and less innovation.” The Electronic Frontier Foundation drew a similar conclusion, saying the case would have a “profound negative impact on interoperability, and, therefore, innovation.” InfoWorld‘s Simon Phipps declared the Supreme Court’s denial a “sad day for developers,” at least in the United States.

They’re probably right. And yet, I’ve had trouble finding actual developers who are lamenting this case. There just haven’t been a lot of app makers screaming about it, and the tech advocacy groups I spoke with provided few examples of industry nervousness. The truth is that many of the apps and services we enjoy today won’t be directly affected by Oracle vs. Google. What’s more frightening is that we don’t know about tomorrow.

Java, owned by Oracle, spurred the court battle with Google.

Freedom To Tinker

The heart of the case involves application programming interfaces, or APIs. These are the sets of tools that allow developers to create apps on various platforms, or connect their apps with other services. An iPhone fitness app, for instance, might use Apple’s APIs to send and retrieve data from the Health app. Any app that lets you log in with your Facebook credentials is doing it via an API.

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In Google’s instance, part of creating the Android operating system involved rewriting its own version of Java, a programming language that is now owned by Oracle. This in turn allowed Google to repurpose Java’s APIs, so that Java developers could easily build Android apps. The rewriting of Java isn’t a problem as far as copyright is concerned (that’s a whole other story), but Oracle maintains that Java’s APIs are copyrighted, and repurposing them for Android app development was infringement.

For a time, it seemed that Google was going to win the copyright case, having earned a favorable District Court decision in 2012. But last year, the Federal Circuit Court of Appeals reversed that decision, leading to this week’s denial of appeal by the Supreme Court. While Google hasn’t lost yet–the case now returns to the District Court to consider a Fair Use defense–technology rights groups were hoping the Supreme Court would put the matter of copyrightable APIs to rest. Thus, the claims of disaster and reduced innovation have gained new life.

Given the distressing messages from groups like the Electronic Frontier Foundation and Public Knowledge, I thought they’d know lots of developers who could talk about the imminent threat to innovation. But that hasn’t been the case.

The EFF, for instance, referred me to a 2013 court brief that mentions Feedly, a popular RSS reader for phones, tablets, and web browsers. The brief notes that Feedly built its audience after the demise of Google Reader, in large part by repurposing Google’s APIs to support stranded Reader users. If that API was copyrighted, Feedly might have failed to take off. I figured Feedly would love to speak about this, but so far the company hasn’t answered my requests for a comment.

Feedly app

Another EFF brief from last year mentions Instagram, and an unofficial API that emerged about five years ago. The brief argues that if Instagram’s API wasn’t excluded from copyright protection, the developer behind the unofficial version might never have released it, and Instagram itself may never have realized the value of opening up its service to third-party apps.

But when I emailed the developer, Mislav Marohnić, he said he wasn’t even aware of the EFF’s brief, and probably wouldn’t have worried about getting sued as a small-time developer. He also doubts that his unofficial release is what prompted an official API. “It might have hurried their efforts, because people using the private API put additional pressure on them to deliver,” Marohnić says. “But they would have released anyway. Having only three people at that time, they were likely limited in their bandwidth when developing parts of their platform.”

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I also spoke with Charles Duan, the director of patent reform at Public Knowledge, and while he’s worried about the long-term implications, he couldn’t think of any well-known apps or developers being at risk due to Oracle vs. Google either. “We’re not going to see 50 lawsuits filed tomorrow,” he says, arguing that “most computer programmers are reasonable” and don’t view APIs as something to be copyrighted.

Future Liberties

None of this is to say that the doom-and-gloom predictions are wrong. They’re just hard to quantify when most of the apps and services we love use APIs in the way they were intended.

It’s only when you look back in time that you realize the potential danger. An EFF court brief from last year gives several examples of non-copyrighted APIs that led to major software advancements. For instance, the Unix API–developed by AT&T’s Bell Laboratories in the 1970s–was utilized by the Unix-like operating system Linux, which now powers more than a third of the world’s web servers and provides the underpinnings for Android. The programming language C has an API that’s been re-implemented countless times, making it easier for developers to target multiple platforms.

The fear, then, might be that widespread copyrightable APIs might prevent similar scenarios in the future, as copyright concerns would prevent developers from repurposing old things into new and unexpected forms. “[F]or many individual developers, the effect will be profound but indirect,” says Parker Higgins, an activist for the EFF. “It’s harder to measure the effect of languages or programs that could forgo interoperability under a cloud of legal uncertainty.” (The EFF has now put out a call for developers /url] who’ve been directly threatened over re-implementation of an API.)

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Public Knowledge’s Duan says developers will be much more inclined to reinvent the wheel instead of reusing APIs for compatibility purposes. “I don’t think that the world is going to collapse because of these decisions, but it does open the door to a lot of bad practices, and that’s the thing that I’m worrying about,” he says.

This might not be a perfect analogy, but it’s tempting to draw a parallel to the locks that companies put on their hardware, preventing hackers from coming up with modifications. Most people don’t care about jailbreaking their iPhones, for instance, but few would argue for outlawing the practice. Having that ability to tinker has prompted [url=http://www.businessinsider.com/apple-steal-jailbreak-2011-6]many innovations, even if we don’t realize it right away.

“The judgment has a chilling effect rather than foreshadowing immediate litigation,” InfoWorld‘s Phipps says. “It means that the mashup-style culture of modern development has to tread that little bit more cautiously.”

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About the author

Jared Newman covers apps and technology for Fast Company from his remote outpost in Cincinnati. He also writes for PCWorld and TechHive, and previously wrote for Time.com.

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