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Supreme Court’s API ruling puts a cloud over software industry

June 29, 2015, 5:14 PM UTC
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On the last day of its term, the Supreme Court turned aside a crucial question over whether a single company can own application programming interfaces, or APIs. The result means a temporary victory for Oracle and a long-term headache for software developers, who use APIs as a basic building block of their trade.

The dispute turns on APIs, which allow different computer programs to communicate with each other, and are considered a sort of lingua franca for many developers. Oracle (ORCL), however, claimed it can use copyright to own APIs for Java, a widely-used computer language that was developed by its corporate predecessor, Sun Microsystems.

Oracle is in the process of suing Google (GOOG) for using parts of the Java APIs in its Android operating system and, in early 2014, it won a bombshell appeals court ruling that stunned many in the tech community.

Google, supported by dozens of law professors, argued that the appeals court made a critical mistake by conflating APIs with underlying software code, and asked the Supreme Court to take up the case and resolve the copyright question. The high court, however, refused to do so on Monday, rejecting the call for review without reasons on the last day of its term.

The immediate result is that the Oracle case will now go back before a judge to assess whether Google’s use of the APIs amounted to “fair use,” which is a defense to copyright infringement in certain circumstances.

While Google is likely prevail to prevail on the fair use question, this outcome would prove cold consolation. The reason is that Google and its supporters believe that APIs are functional and shouldn’t be covered by copyright at all –that they are akin to a menu or a haiku structure or the words on a street sign. (This is different from the underlying code for a program, which can be copyrighted).

For developers, who have long assumed APIs are outside the scope of copyright, the Oracle ruling adds a new layer of legal risk to their work activities. At worst, some companies could seize on the Oracle finding to threaten copyright litigation against a broad swath of the software industry.

To avoid this risk, developers could create a distinct style of commands each time they wished to implement an API, but doing so would entail enormous duplication of effort. (API’s are rendered as short lines of computer code; to get a better idea of what they do, see the definition at the end of this article).

The upshot of the Supreme Court ruling is a far cry from what transpired at the original intellectual property trial between Oracle and Google in 2011. That trial concluded with Judge William Alsup ruling that the Java APIs at issue fell on the wrong side of copyright law’s “idea/expression dichotomy” and “merger doctrine,” which are legal notions that impose limits on what copyright can cover. (In the course of the trial, it also emerged that Alsup had taught himself Java.)

In 2014, a split panel of the U.S. Court of Appeals Court for the Federal Circuit reversed Alsup, with one of the appeal judges saying APIs deserved the same sort of copyright protection as literary works like those of Charles Dickens. The ruling attracted disbelief and scorn from many legal scholars.

The Supreme Court later invited the Obama Administration to submit a brief as to whether it should hear the case. The Administration suggested it should not, and now it appears the court heeded the advice. As a result, the only option left for opponents of copyright for APIs is a legislative solution. Oracle hailed Monday’s outcome.

“Today’s Supreme Court decision is a win for innovation and for the technology industry that relies on copyright protection to fuel innovation,” said General Counsel Dorian Daley. Meanwhile, a Google spokesperson provided the following statement:

“We will continue to defend the interoperability that has fostered innovation and competition in the software industry.”

*For a better understanding of API’s, here is a useful definition and example that my colleague Mathew Ingram used in a recent Fortune story:

What does that mean exactly? An API is an application programming interface—a series of software instructions and tools for extracting and displaying data from a specific service. Platforms like Twitter and Facebook and Google have public APIs, which in turn allow programmers to build features into their apps and services that pull in data from those platforms and then display it in different ways. So Netflix, for example, can pull in a list of your Facebook friends and let you share the shows you’re watching with them.