Technology’s ‘Tower of Babel’

The Supreme Court’s upcoming review of a decade-long software fight between Oracle and Google is poised to be one of its most important copyright decisions ever. The Court is set to decide how broadly copyright applies to software. And that decision will significantly impact future innovators.

To see how, consider: Software affects nearly every facet of modern life, because nearly everything runs on software. Your phone, your car, your TV, your refrigerator, your thermostat, your doorbell, and more — in this day and age — they are all computing devices that critically depend on software. So how much someone can control use of software through copyright really matters for how — and whether — those devices work.

For example, for those devices to provide many of their desirable features, they have to be able to speak to other technologies. Alexa can’t turn off the light if she doesn’t speak the same language as the software running the light switch. Your smartphone apps won’t work if they can’t communicate with the other technologies on your phone, either. To be able to work together, the distinct products have to share a common vocabulary. 

In other contexts, we call this standardization. Think of electrical outlets. Of course, you’d rather not, and that’s precisely the point — electrical outlets conform to a common set of standards so that any device with a plug also meeting those standards can suck up electricity. Anyone who has experienced the inconvenience of traveling abroad, where the same standards don’t apply, knows that set of bulky, inconvenient converters becomes necessary. Importantly, the converters are necessary not because they improve the products, but only because of arbitrary differences in standards from one jurisdiction to the next. If everyone just adopted the same standards, we could do away with those inefficient converters. And companies could instead focus their efforts on coming up with better products.

That’s where the copyright fight between Oracle and Google comes in. When Google built Android, its mobile operating system, the company included small pieces of Oracle’s Java software in it. The pieces that Google borrowed — technically called application program interfaces (APIs) — are a nomenclature that allows distinct software pieces to understand one another in working together. Google put those pieces into Android because software developers had, over time, adopted them as a common vocabulary for software development. So, including them meant that developers could more easily build apps for Android. And it also meant that developers could focus on innovation rather than finding ways to work around a software “Tower of Babel.”

Oracle claims that Google can’t use those pieces because they are subject to copyright. The underlying court agreed with Oracle, in large part because the court found that coming up with the APIs involved creative choices — and creativity is a touchstone of copyrightability. Yet copyright doesn’t cover all forms of creativity. In fact, it explicitly excludes ideas and other functional elements from the ambit of its protection, regardless of whether their author could have expressed them differently.

The APIs that Oracle wishes to claim as its own are highly functional. Their sole purpose is to identify common computational functions that other technologies then carry out. Think of your favorite streaming device. Sure, “Play” and “Stop” could have been named “Proceed” and “Halt” — But such functionality masquerading as creativity is not the type of creativity copyright is meant to protect. Or at least it shouldn’t be, because if we force subsequent innovators such as Google to deviate from common standards in pursuit of arbitrary distinctions, then copyright has certainly lost its way in promoting creativity that matters.

Indeed, allowing copyright to expand beyond its traditional contours poses risks to innovation and creativity more generally. Should a Yoga guru be able to copyright a functional sequence of Yoga poses, so that nobody else can practice and improve upon that sequence without the guru’s permission? Should J.K. Rowling be able to prevent others from writing books that involve magical beings, good versus evil, and an eventual triumph of the good? If the Supreme Court dispenses with copyright’s purposeful limitations, it could make these types of scenarios a reality. Fortunately, courts have traditionally interpreted copyright law to deny such copyright claims. The Supreme Court would best serve society’s interests, and copyright’s purposes, by following suit.

Clark D. Asay is professor of law at Brigham Young University; his research and teaching interests focus on intellectual property law, technology and innovation. Prior to joining academia, Asay worked at Amazon’s Lab126 and supported the Kindle, Kindle Fire and Amazon Fire teams. He is a graduate of Stanford Law School and holds an M.Phil from the University of Cambridge, England. Follow him on Twitter @cdasay