SCOTUS move fuels uncertainty for tech, groups say

The Supreme Court’s decision to not weigh in on a copyright fight between Google and Oracle could have severe implications for future software development, say public interest groups.

The court late last month declined to hear Google’s appeal of a ruling favorable to Oracle.

{mosads}Google mimicked commands that are a part of the Oracle-owned Java language program’s application programming interface (API) — a system developers use to connect two pieces of software — when it developed its Android operating system for smartphones. Oracle says it should be able to copyright the commands.

Google didn’t get prior permission to use the commands, but says they aren’t protected by copyright law.

A district court found for Google, but that ruling was overturned by the U.S. Court of Appeals for the Federal Circuit. Google appealed to the Supreme Court — which declined to hear the case.

The court asked the White House to weigh in on the case because it involved copyrights, which could involve the administration. The White House, in its filing, told the justices not to hear the case and instead send it back to the lower courts.

The recommendation was reportedly a matter of heated debate within the administration. Reuters reported in May that some of the White House’s technology advisers were supportive of Google, while other elements of the administration seemed to favor Oracle’s position. Briefings from the companies on the case had to be moved to a different conference room because of how many people wanted to attend, according to the news agency.

A lower court will now consider whether Google had a fair use justification to copy the elements. But the high court’s decision has created uncertainty for programmers, said some advocates who hoped the Supreme Court would hear the case.

“It’s difficult for copyright lawyers to understand sort of the boundaries of what is copyrightable,” said Evan Engstrom, the policy director at startup advocacy group Engine, which filed a brief supporting Google. He said it is even harder “for programmers to understand what you’re allow to repurpose and use,” and that the Supreme Court has added to the uncertainty.

Others argue that the effects are overstated, in part because Federal Circuit court rulings lack significant power as precedents. Software developers, they say, also appreciate being able to build on other people’s work and would be unlikely to enforce copyright protection en masse against their peers.

Still, it is possible that the decision to let the Federal Circuit’s ruling stand could trigger new copyright infringement lawsuits related to APIs.

“We are concerned … that the ruling might encourage a wave of ‘API copyright’ lawsuits, especially in the 9th Circuit which is the home for so many technology companies,” said the Open Source Initiative (OSI), which also submitted a brief supporting Google, in an email. “Any atmosphere in which there is a significant amount of litigation directed against fundamental programming activity cannot be good for open source or the software industry as a whole, as we’ve seen in the software patent sphere.”

Charles Duan, the Director of Public Knowledge’s Patent Reform Project, said he worried that uncertainty in the courts — where there are some older rulings that conflict with the Federal Circuit’s decision — might lead to a fractured software landscape.

He compared it to the biblical parable of the Tower of Babble, saying that “when everybody spoke the same language they were able to create a great big tower, and then when people were dispersed into lots of different languages they weren’t able to collaborate and construct that sort of thing.”

“Uniform languages are really important to a lot of different industries — not just computer science,” he said.

Moreover, engineers could be wary of using APIs without permission, potentially slowing the development process.

“This would obviously be a blow to innovation across the sector, especially as much of that innovation — and speed of innovation — is made possible through the principles of collaboration and sharing like we’ve seen in free and open source software,” said OSI.

Oracle argues that the ruling in its favor will support, not hinder, development.

“Today’s Supreme Court decision is a win for innovation and for the technology industry that relies on copyright protection to fuel innovation,” Oracle’s General Counsel Dorian Daley said in a statement after the Supreme Court’s decision was announced.

More clarity could come for both sides of the debate when the court hears Google’s fair use claim. But Engstrom cautioned against viewing a ruling in favor of Google as equal to a definitive statement from the Supreme Court on the topic.

Without that certainty the foundation of growth in the high-profile software industry is a little shakier, he said.

“So even if you do get a positive fair use ruling in the a lower court, and such a fair use ruling is upheld on any potential appeal,” he said, “it still doesn’t provide the type of certainty that we’d like to see for programmers to freely experiment and repurpose APIs to build upon the creativity of others which is sort of the driving force of software development, historically.”