Will Oracle Finally Put its Tax On Android

On June 26, the U.S. Supreme Court dumped the whole proverbial can of worms right on the software world by choosing not to take up the case Google v. Oracle, also known as the Application Programming Interface, or API, copyright case. Oracle has looked at this as a victory and last week updated its 5-year-old lawsuit to include six Android updates and a cease and desist order.

Where does this leave the software industry? Squirming in our rolling, adjustable, back-supporting chairs.

First let’s review where this has gone and where it’s going. You can learn the whole history of this case here, but, in as few words as possible:

  • October 2003: Android Inc. releases a mobile phone Platform.
  • July 2005: Google acquires Android Inc.
  • November 2006: Sun Microsystems releases Java as open source.
  • November 2007: Google releases Android platform, built using 37 Java APIs.
  • November 2007: On the same day, Google joins major device manufacturers, wireless carriers and chipset makers in launching the Open Handset Alliance, which works to create open source standards for mobile devices.
  • January 2010: Oracle acquires Sun Microsystems, the assets of which included Java.
  • Oracle and Google never come to any licensing agreement terms, although they were discussed at some level for years, even before Oracle acquired Sun Microsystems, and before Sun open-sourced Java.
  • August 2010: Oracle sues Google for copyright and patent infringement, claiming it got Android to market faster over competitors like BlackBerry by using Java instead of writing their own operating system.
  • April 2012: Case gets split into three parts at the District level: copyright, patent and damages. Jury found that Google had infringed, but couldn’t decide whether it was fair use, since Java was intended at the time to be open source.
  • May 2012: Oracle and Google declare a sort of truce on the patent question.
  • May 2012: The District Court finds that yes, Google had infringed in some ways, but that Oracle’s main claim of the copyright issue of the APIs was not valid because: “So long as the specific code used to implement a method is different, anyone is free under the Copyright Act to write his or her own code to carry out exactly the same Function or specification of any methods used in the Java API. It does not matter that the declaration or method header lines are identical.” In other words, it decided APIs aren’t copyrightable.
  • Both appeal the decisions made against them.
  • May 2014: U.S. Appeals Court reverses the District Court’s decision, stating that the “structure, sequence, and organization” of APIs is fully copyrightable.
  • June 2015: The U.S. Supreme Court rejects Google’s appeal.
  • August 2015: Oracle brings more suits against Google, trying to stop any Android use that involves those 37 APIs that, Oracle claims, Android could not work without.

While I would have loved to have listened to that hourlong debate, I think it is slightly better that SCOTUS did not take the case because I believe Google would have lost with this particular court, which would have found that the intent was obviously for profit. If the high court had taken it, then its ruling would be at a constitutional level, which would mean unequivocally that APIs and software in general are absolutely copyrightable.

In the end, the Supreme Court deciding not to take the case was a smaller victory for Oracle, but not the final battle or blow. Last week, while the final outcome of Oracle’s first lawsuit against Google is still being determined, Oracle decided to keep momentum going by filing another complaint, this time against the six most recent Android version updates, since the platform is still standing on the basis of those same 37 Java API packages.

But Oracle went even further this time to use the headline-dominating word that the Android operating system has effectively “destroyed” Java’s own marketability.

“Android will still not work without these Java API packages,” Oracle wrote, asking for an undisclosed sum of money — that I’d bet is much higher than the more than $7 billion that Oracle bought Sun for — as well as this time for a full stop of all Android infringement on this code, effectively stopping my Android device and yours.

So what could all this mean? Google clearly took a shortcut to market over its competitors by continuing to use the Java APIs. The question, particularly given the open source nature of Java, is whether or not that was “fair use.” The true essence of an API is to encourage interoperability between not only internal software but with external partners as well. The API is what makes our phones smart and will soon be what connects every aspect of our lives as the Internet of Things becomes a bigger deal. When you say an API is copyrightable against fair use, that goes against the core value of the API economy, which stands on compatibility and interoperability across platforms and resources.

Plus, when you tell a company like Oracle or Cisco that it can enforce copyright over products that were previously, at least in some way, open source, as was the original intent behind Java, you allow the big guys to just get bigger, further monopolizing the market. They gain an unfair advantage, which leads to less choice in the marketplace where smaller players would have impossible barriers to entry. In other words, without fair use of APIs, their less innovative legacy becomes a legacy we all have to bear, and the end User Experience will be the biggest loser of them all.

But don’t lose hope yet, my friends, because the concept of fair use is decided completely on a case-by-case basis and may depend on the judge and jury for the outcome. However, this case probably won’t be tried again until mid-2016, so keep on innovating and integrating until told otherwise.

Be sure to read the next Law article: Google Foreshadows Legal Strategy in Epic API Copyright Case Against Oracle