Oracle's dangerous claim: APIs can be copyrighted

(credit:Google)

I like being a contrarian, and I had hoped that a morning spent watching the Oracle/Google trial here in San Francisco would convince me that it's been overhyped and not worth the worry. No way.

This case is a big deal, and at best it will cost both sides millions of dollars that could have gone to something productive, like new jobs or product innovation. At worst, the current plague of patent and other intellectual property-related suits will metastasize, as trolls, lawyers, and tech companies looking for a shortcut to competitive advantage file a new breed of legal actions.

In case you missed it: Oracle filed a lawsuit against Google in August 2010, charging that the Android mobile OS infringes Oracle patents and copyrights related to Java, which Oracle acquired when it purchased Sun Microsystems. The trial opened last week and is expected to take at least two months.

Here are a few of the most important realizations from my observation of this trial:

• Much of Oracle's case is not about patents, but about copyrights. The standard for copyrights is much lower, and software, particularly open source, is very vulnerable to challenges on those grounds.
• As many commentators have noted, the key to this case is a complex legal question: Can a company copyright an API? Thankfully, that point will not be decided by the jury, but by U.S. District Judge William Alsup, who appears to be quite savvy about technology and is running the trial with firmness and good humor.
• Oracle's prize piece of evidence, a series of long-ago statements by Andy Rubin indicating that the use of Sun's Java language and APIs would have to be licensed by Google, doesn't stand up.

Copyrights lower the barIt's old news to most of us that the patent system is broken and the technology industry is involved in a seemingly endless and terribly expensive multiplayer fight over patents related to smartphones. Just when you thought intellectual property litigation couldn't get much worse, along comes Oracle and its claim that Google has violated copyrights on 37 Java APIs.

That's an absolutely stunning claim. To begin with, APIs have never been viewed as copyrightable, says Julie Samuels, an attorney with the Electronic Frontier Foundation who has considerable experience litigating intellectual property issues. If Alsup decides that they are, "[i]t could absolutely change the game," she told me.

For all the problems we've seen in the last few years, the legal standards for obtaining and enforcing patents is relatively high. Even so, software patents are nearly five times more likely to be the subject of litigation than other patents. In fact, lawsuits surrounding software patents have more than tripled since 1999. (Samuels made that last point in an opinion piece on Wired.com.)

Copyrights, on the other hand, are much easier to get, says Samuels. If APIs can be copyrighted, we may well see a rash of suits claiming damages. What's more, we can expect a jump in behind-the-scenes demands for royalties as the price of using APIs that have always been in the public domain. Many licensing demands stay private, so we may not know about them, but will feel them when costs increase to reflect those royalties.

Copyrighting APIs is a dangerous step. As Google chairman Eric Schmidt told the jury Tuesday, programming languages and APIs are inseparable: "A language is not useful unless something can happen; without the APIs, nothing can happen."

InfoWorld readers understand that software isn't a widget; it's a series of building blocks, so I won't go on at length about this point. My colleague Neil McAllister explained that very well last week: "Oracle's argument is roughly akin to me claiming that because I own the copyright to a book of commonly used English phrases, publishers of Shakespeare need to pay me royalties. If it holds true for Java, it will hold true for any programming language, from any source. That could radically change the relationship between developers and platform vendors."

Smoking gun or popgun? Oracle has made much of a 2005 email from Andy Rubin, head of the Google Android project, to Google co-founder Larry Page. In the message, Rubin said: "My proposal is that we take a license that specifically grants the right for us to open-source our product. We'll pay Sun for the license and the TCK. Before we release our product to the open source community, we'll make sure our JVM passes all TCK certification tests so that we don't create fragmentation."

Schmidt, who headed Java development as Sun's CTO, thought otherwise. Languages are in the public domain, and "[a license] was never an issue," he said. (In testimony on Wednesday, Rubin appeared to contradict himself, saying that at the time he didn't think a license for the APIs was necessary, according to reports.)

In so far as a license was needed, it would have covered only the familiar steaming coffee cup logo that symbolizes Java, he said. It's also worth noting that Sun's then-CEO Jonathan Schwartz in a blog post shown in the courtroom congratulated Google on the publication of an Android SDK, saying Google has "strapped another set of rockets to the community's momentum."

It's hard to know what Rubin was actually thinking at the time, but as a Google representative said to me, "He's not a lawyer." Neither is Schmidt, but given his position at Sun, where he worked for 14 years, you have to believe the man knows what he's talking about.

It's worth noting, that unlike Oracle CEO Larry Ellison, who appeared somewhat tentative when he testified last week, Schmidt struck me as absolutely calm and certain of his ground. I suspect the jury noticed that as well.

I'm certainly not predicting the outcome of this trial. But I am predicting that an Oracle win on the grounds that Google violated copyrightable APIs is a potential disaster for open source and the software industry as a whole.

Oracle could win the suit on other grounds; a number of patents are at issue as well as the copyrights. If that happens and it wins the $1 billion it is suing for, that's a huge waste of resources and could be another sign the tech bubble is about to burst.

(courtesy:infoworld.com)