In Oracle v. Google, Judge Holds Fate of Java APIs

On Monday, a jury is set to decide whether Google infringed Oracle's copyrights in cloning the Java APIs on its Android mobile operating system. But that's not the big decision. The big one comes later. Even if the jury decides that Google ran afoul of the law in building a new version of Oracle's Java platform, this won't settle the broader question everyone is waiting for: Can you actually copyright an API?
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On Monday, a jury is set to decide whether Google infringed Oracle's copyrights in cloning the Java APIs on its Android mobile operating system. But that's not the big decision. The big one comes later.

Even if the jury decides that Google ran afoul of the law in building a new version of Oracle's Java platform, this won't settle the broader question everyone is waiting for: Can you actually copyright an API?

An API, or application programming interface, is a way of talking to a piece of software. You can copyright the software code that sits behind an API, but it's unclear whether you can copyright the interface. In the Google case, that question will be answered not by the jury but by Judge William Alsup -- if it's answered at all.

If Alsup does rule, his decision is sure to resonate with software companies and independent developers across the industry. It's not unusual for a software project to clone the APIs of existing platform. Multiple cloud computing platforms, for instance, have mimicked the APIs that Amazon built for its Elastic Compute Cloud and its other Amazon Web Services. Amazon is king in the cloud computing game, and in cloning its APIs, other projects can appeal to an army of developers already familiar with Amazon's platform. If APIs can be copyrighted, these Amazon competitors and countless others may suddenly be as risk of legal action.

In building Android, Google built a new version of the Java platform known as the Dalvik virtual machine. The Java platform runs applications that are written in the Java programming language. Google could have licensed this platform from Sun and put it on Android, but instead, the company decided to rebuild it, cloning the familiar APIs that allow developers to build apps that run on the platform.

In 2010, Oracle purchased Sun Microsystems, the creator of Java, and it soon sued Google, claiming that the search giant infringed its copyrights and patents in building Android. Part of its claims say that Google ran afoul of the law when it cloned 37 of the Java APIs. But Oracle isn't just saying that Google shouldn't be allowed to mimic those interfaces. It's also saying that Google copied at least some of the software code that Sun used to build the APIs.

In other words, the case is complicated. But it does raise the question of whether an API can be copyrighted.

On Thursday, Judge Alsup asked the legal teams for both Oracle and Google to provide additional information on their respective arguments, and this includes how they stand on whether the structure, sequence, and organization of an API can be copyrighted and even whether an entire programming language can be copyrighted. This information is due to the judge by May 14, and sometime after that, he may rule on the matter.

Ronald Abramson, a lawyer with the international firm Hughes, Hubbard, and Reed, believes Alsup is unlikely to rule that APIs can be copyrighted. "I'd be surprised, at the end of the day, if that copyright survives. Functionality has always been the boundary point," he says, referring to the way an API functions, as opposed to the code used to build it.

Throughout the trial, during breaks in official proceeding, Judge Alsup, 66, has asked myriad questions about the nature of APIs, how they work, and the exact meaning of the vocabulary used to describe them. Both sides have quibbled over the nuances of the terminology involved — e.g. is "blueprint" an accurate real-world analog of an API? — and the judge has often stopped the proceedings until they can agree on a meaning.

But he has also sought to understand software code in his own right. At one point, he asked how a Max function — a simple command that takes the highest number from a group — would be written out, how it would work and how this compares to spoken language and literature, for which there's a longer legal history.

"If the Copyright Act is meant to protect expression but not vocabulary, should the vocabulary and grammar of a computer language be copyrightable, as distinct from programs written in the language?" he asked in a brief that seeks to clarify the arguments in the case. This document contains 13 questions — and myriad sub-questions — that cover other aspects of the case.

Alsup also asked the sides to comment on a ruling from the High Court of the European Union on a lawsuit brought by U.S. software company SAS Institute against UK outfit World Programming Limited. On Wednesday, the court ruled that a computer language or the functionality of a computer program cannot be copyrighted. "Europe's has been a little more aggressive about policing this stuff," says Abramson.

Previously, Alsup told the jury to assume that APIs can be copyrighted. And many involved in the case have wondered why Alsup would let a jury reach a verdict before he made a ruling that could invalidate their decision. But according to Abramson, a judge may handle a case in this way because it's more efficient.

If Alsup had ruled that the APIs are not copyrightable from the outset and this affected the jury's decision, an appeals court could later rule that Alsup was wrong and that a retrial is required. But if the jury decides that Google infringed on the APIs and then Alsup rules that APIs can't be copyrighted, an appeals court could overturn his decision, and there would already be a jury decision in place. No retrial would be needed.

Plus, if the jury finds Google didn't infringe on Oracle's copyrights, Alsup doesn't have to take a stand on APIs one way or another. That would be quite an anticlimax. But it seems unlikely.