API Copyrightability - A Technical and Legal Debate
Test and Monitor | Posted May 29, 2014

A few weeks ago you may have noticed the increased buzz around the appellate court's reversal in the years-long Oracle v. Google case. And while this all may seem like a bit of rubbish stirred up by industry publications simply looking to squeeze some big names into their headlines, the hard truth is that this debate is not just about the two tech giants who are listed in the case. The decisions that come down from the court's in this dispute will have an immediate and long-lasting impact on the future of the Internet and the software industry as a whole.

Whether the precedent being set will be beneficial or harmful to the API and mobile industries is yet to be seen, but one thing is perfectly clear: If your organization has plans of ever making a public API a valuable part of its business model, you are doing yourself a great disservice if you aren't paying close attention to the details of this case.

Let's take a quick look at how actual attorneys, rather than thought leaders in the API industry, believe this case could potentially affect the business of software in coming years.

Pros to API Copyrightability

Copyrightability has been pivotal in keeping software businesses alive since the dawn of software. And you know what, that hasn't been a bad thing.

As Joel Rothman, partner at Schneider Rothman IP Law Group, states in his blog post on this case, this reversal is good for software developers who are looking to gain recognition and make a living off of the work they've done. The ruling does not mean that all APIs are inherently copywritable, and it doesn't mean that all companies will instantly decide to copyright their APIs. The appellate court's decision simply allows companies to stop others from blatantly copying their APIs and profiting off of them.

To quote Rothman:

Remember, you can always choose to open source your code if you like.  That is what Google did with Android, and now look at how critical mobile revenue has become for Google as a result.  Should Oracle just shrug its shoulders and say, fine, pay us nothing?

On the other hand, imagine if suddenly software was not copyrightable.  Would there have even been a Java?  iOS?  Windows?  Would coding still go on, sure.  But would we be where we are today?  I say, no.

The problem in this case, really, is about after-the-fact copyrightability. Had the Java APIs been copyrighted years ago, Google simply could have argued fair use and the court could have decided on the issue long before the APIs in question were being used in more than 800 million smartphones.

Moving forward, companies will simply be forced to make a decision early on whether they want to make their APIs open and available for public use or to copyright and directly profit from their use. For API lovers, this is just another step toward making business people view APIs as a valuable product that must be built into their strategies and business plans. It adds clarity and structure to a maturing industry.

Cons to API Copyrightability

As a number of well-known bloggers in this space have argued, this decision is counter-productive to the very basic principles of the API world. Leaders in this industry have worked together to create self-policing standards that allow for a level balance of stability and openness where innovation can thrive.

Those efforts have been diminished as a result of this recent decision, according to Corynne McSherry, Intellectual Property Direct at the Electronic Frontier Foundation (EFF).

 The implications of this decision are significant, and dangerous. As we and others tried to explain to the court, the freedom to reimplement and extend existing APIs has been the key to competition and progress in both hardware and software development. It made possible the emergence and success of many robust industries we now take for granted—for mainframes, PCs, workstations/servers, and so on—by ensuring that competitors could challenge established players and advance the state of the art.

Essentially, the fact that APIs had been excluded from copyright protection in the past is precisely what lifted them to their current value in the software industry. It had protected creative developers from having to pay licensing fees or face lawsuits. It stopped companies, like Oracle, from suddenly deciding it wanted people to pay royalties years after their APIs had already been implemented into a piece of business-critical software.

Sure, it was a bit like the Wild West, but innovative sharing had thrived in that atmosphere of self-policing for years until two tech giants started their billion dollar lawsuit.

Continuing the Debate

Regardless of which side you stand, it's important to recognize that this case will likely have a direct impact on your business - whether it be today, tomorrow, or a few years down the road. It's important that young developers and entrepreneurs don't brush this off as a battle between two industry heavyweights. It's going to be meaningful to everyone -- for better or worse.

If you're interested in understanding more about the legal background and potential impact the Oracle v. Google case will have on the future of APIs, please sign up for our live webinar, The API Copyright Debate, on June 4. This free online event pits Joel Rothman, partner at Schneider Rothman IP Law Group, against Mitch Stoltz, staff attorney at the EFF, in a legal and technical debate about the legal and industry-wide ramifications of this case.

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