This story was written by Keith Dawson for UBM DeusM’s community Web site Business Agility, sponsored by IBM. It is archived here for informational purposes only because the Business Agility site is no more. This material is Copyright 2012 by UBM DeusM.

Oracle v. Google: Are APIs Copyrightable?

The jury punted on the critical issue of fair use; and the judge needs to rule on the more central question of whether APIs are copyrightable in the first place.

The jury is back after the big trial's copyright phase, but resolution of the question of API coyrightability will take years. Intellectual property lawsuits are hardly an agile business practice.

Most intellectual-property disputes that come anywhere near the legal system get resolved before the stage of a jury trial. Oracle, however, was not to be deterred from ramming its case through the courts after it accused Google in 2010 of infringing its intellectual property, both copyrights and patents, in the Java programming environment. At issue is the use of Java in the Android operating system.

Oracle is desirous of slowing down Google's momentum with Android, which is the most common smartphone OS in use today. So far, there isn't any evidence that the lawsuit is accomplishing that goal. Probably Oracle would like a bit of the revenue that Android brings into Google's coffers. And Oracle might like to exert some control over Android's direction. These latter two goals would be abetted if Google asked Oracle for a license to use Java. Google never did that, dating back to the time when it first began using Java in Android, when Sun Microsystems made Java fully open-source. (Oracle later bought Sun.)

If Oracle should ultimately prevail in court, every programmer in the world will be adversely affected. "Copyrighted APIs raise the possibility of new barriers to entry in a market, new ways businesses can stave off competition, new involvement of lawyers in product development." writes Stephen Shankland at

But this trial, to determine basic questions of the nature of software as intellectual property, is being heard by a jury that includes "a plumber, a nurse, a retired photographer, a store designer for Gap, a city bus driver, and a postal worker," according to Venturebeat. (Two tech workers and two lawyers were dismissed during jury selection.) No matter what the outcome, on any or all of the points of contention, the losing party will appeal, and appeal again, until the Supreme Court either hears the issues or declines to. Many years will pass.

Whoever thought this was an agile way to run a business?

On Monday the jury in Oracle v. Google said that Google, in developing Android, had infringed the copyright of one Java API -- nine lines of code -- out of a total of 37 that Oracle had claimed. (Android comprises 15 million lines of code in total.) But the jury deadlocked on the question of whether Google had made "fair use" of Java APIs.

If that last paragraph made you do a double-take, you're not alone. Since when are APIs covered by copyright? So far they're not, and the jury didn't decide that they are. The judge in the case, William Alsup, will do so later. He had told the jury to proceed as if programmatic interfaces are indeed copyrightable.

But the jury could not come to unanimity over the question of whether Google's use of those APIs constituted "fair use," which is the flip side of infringement: if there is fair use, there is no infringement.

The jury also said that Google had proved that Sun/Oracle had acted in such a way as to convince Google that no license was needed to use Java. But the jury also said that Google had not proved that it relied upon the foregoing in deciding not to seek such a license. All clear?

Google immediately requested a mistrial. The judge will hear arguments about that in a few days.

Meanwhile, he is keeping the trial moving into its second phase, in which this jury of twelve angry consumers will ponder "the intricacies of patent law, the mind-boggling complexities of mobile programming, [and] the quagmire that is open-source software litigation," as Venturebeat puts it.

Pretty much no one in the technology business would be happy in a world in which APIs were copyrightable. (Ponder for a moment the fact that Microsoft now owns Javascript.) But even if the worst should come to pass, many of us will be retired long before copyrightable APIs are the law of the land.