development, and are considering our options," a company spokesperson said in an email.
Michael Risch, a professor at the Villanova University School of Law, in a blog post, characterized the ruling as both right and wrong. APIs are entitled to copyright protection, he argues, and the Federal Circuit got that right. But, he points out, the court does not recognize that the need for interoperability creates an exception to copyright.
The case Sega Enterprises v. Accolade established that copying for the sake of interoperability is lawful. "Sega is crystal clear that we do allow interoperability reuse," he wrote.
Joshua Rosenkranz, who heads Orrick, Herrington & Sutcliffe's Supreme Court and Appellate Litigation practice and represented Oracle in its appeal, disagreed with that assessment. "Sega and its companion case Sony are about [intermediate] copying of a program to figure out how it works, but emphatically not about co-opting and using the exact code in your own commercial product," he told us in a phone interview.
If Google fails to make the case that its use of Java qualifies as fair use -- and Rosenkranz argues it won't -- the company could be liable for well over $1 billion, the amount Oracle sought several years ago when it filed its claim. Since then, Android has only become more popular; Gartner estimates the installed base of Android devices will reach 1.9 billion by the end of 2014.
Google might appeal the case for en banc review by the full Federal Circuit and after that, it could appeal to the Supreme Court. Until the issue is resolved, the copyrightability of APIs could become problematic for software developers.
Corynne McSherry, intellectual property director of the Electronic Frontier Foundation, told us in an email:
The freedom to re-implement and extend existing APIs has been the key to competition and progress in the computer field -- both hardware and software. It made possible the emergence and success of many robust industries we now take for granted -- for mainframes, PCs, workstations/servers, and so on -- by ensuring that competitors could challenge established players and advance the state of the art. In other words, excluding APIs from copyright protection has been essential to the development of modern computers and the Internet. If today's decision is taken as a green light to API litigation, large and small software tech companies are going to have to divert more and more resources away from development, and toward litigation.
Eric Goldman, a law professor at Santa Clara University School of Law and director of the law school's High Tech Law Institute, voiced similar concerns in a phone interview. He argues it's a social imperative that interoperability not be impeded by copyright law. The lower court chose to achieve that by denying Oracle's copyright claim, he said, but the Federal Circuit Court ruled otherwise. That means interoperability shifts to other areas of the law such as fair use, and Goldman argues that if we have to go through a complex fair use analysis to create interoperable code, we all lose. The purpose of copyright law is to incentivize the creation of content, he said. But this ruling might do the opposite.
"One logical consequence of this ruling is that programmers become fearful about creating interoperable code," Goldman said. "This ruling does not make this question any easier."
Could the growing movement toward open-source hardware rewrite the rules for computer and networking hardware the way Linux, Apache, and Android have for software? Also in the Open Source Hardware issue of InformationWeek: Mark Hurd explains his "once-in-a-career opportunity" at Oracle.