Opinion by Steven J. Vaughan-Nichols

Oracle v. Google, and the end of programming as we know it

The courts ruled that APIs can be copyrighted. That was bad. Now, if APIs can’t be used with fair use, that will be even worse.

Opinion by Steven J. Vaughan-Nichols

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I thought we were done with Oracle’s frantic attempts to monetize its failed Sun purchase by suing profits out of Google’s use of Java in Android. I was wrong. In 2015, the Supreme Court upheld an idiotic decision by a U.S. Court of Appeals that Java’s application programming interface (API) was subject to copyright. So here we go again.

In the first go-round between Oracle and Google, in 2012, a clueless jury found that Google had infringed Oracle’s copyright by copying into Android the “structure, sequence and organization” of 37 Java APIs.

U.S. District Court of Northern California judge William Alsup, a programmer in his own right, tossed out the jury’s verdict, writing that an API is merely “a long hierarchy of over six thousand commands to carry out pre-assigned functions. For that reason, it cannot receive copyright protection — patent protection perhaps — but not copyright protection.” Oracle, by the by, lost its patent lawsuit. All it had left was its copyright case.

So we’re back to court, with Oracle now wanting a mere $9.3 billion for Google’s use of the Java APIs in Android.

Can Oracle win? I hope not.

In fact, I hope it doesn’t win a thin dime, never mind billions.

You see, as the Electronic Frontier Foundation (EFF) observed, the Court of Appeals decision showed a complete “misunderstanding of both computer science and copyright law. APIs are, generally speaking, specifications that allow programs to communicate with each other, and are different than the code that implements a program. Treating APIs as copyrightable would have a profound negative impact on interoperability, and, therefore, innovation.”

You think?

For over 30 years, we’ve used open APIs for almost every program you can imagine. Open APIs, along with open source, revolutionized the software industry. They’ve enabled developers to easily create applications on top of both open-source and proprietary programs. Today’s software economy lives and dies on open APIs.

In the current case, the explicit question isn’t whether APIs can be copyrighted. According to the Supreme Court, they can. The question is: “Are APIs covered by the fair-use doctrine?”

The original 2012 jury didn’t see it that way. Greg Thompson, that jury’s foreman, reported that most of the jurors thought Google’s use of Java’s APIs was covered by fair use. This jury? Who knows?

Former Sun CEO Jonathan Schwartz said at the trial that Java’s APIs were open, as indeed was Java. Schwartz said, “It was in our interest to do so. If you were using Java, then everything else that Sun sold, we could sell to you. If you were using Microsoft Windows, the dominant operating system, then we had nothing to sell you.”

Oracle, of course, doesn’t have a smartphone operating system. What it does have are lawyers.

Legally, deciding fair use involves four equally weighted factors. These are: whether the use was commercial; the kind of work that was copied; how much was copied and how substantive it was; and the impact that the copying had on the market for the original. I don’t think much of Oracle’s chances. Oracle’s only hope is that Android’s commercial success will persuade the jury that Google is in the wrong.

If programmers made up the jury, Oracle wouldn’t stand a chance. They know that APIs should be open or at least freely usable under fair use. But instead of programmers, clueless users who can’t tell an API from an Apple iPhone will be making the decision.

Software development’s present and future lie in the hands of the ignorant. As the tech writer Sarah Jeong put it, “The problem with Oracle v. Google is that everyone actually affected by the case knows what an API is, but the whole affair is being decided by people who don’t.”

Exactly. And that’s scary as hell.

Let’s hope they get it right. If they don’t, the world of software development is in for a world of hurt.

Copyright © 2016 IDG Communications, Inc.

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