EEF Calls For Supreme Court To Decide If APIs Copyrightable
Written by Sue Gee   
Thursday, 28 February 2019

In the latest development of the Oracle v Google lawsuit over the use of Java APIs, the Electronic Frontier Foundation has filed an amicus brief in support of Google's petition asking for a review by the US Supreme Court.


When Google filed its petition for a writ of certiorai, i.e a judicial review by the Supreme Court, over decisions made by the Federal Circuit Court about whether APIs could be subject to copyright, our report had the title Google Asks The Supreme Court To Decide The Future Of Computing

The ramifications of the court rulings in favour of Oracle in the lawsuit that has been rumbling on since 2012 don't just affect Google and Android, they affect any software developer whose product re-implements pre-existing APIs - i.e. virtually all software developers.

EFF has now submitted a document that urges the Supreme Court to make the review requested by Google.

This may seem like deja vu. This is because its a re-run of a scenario from 2014. After the initial trial court ruled in Google's favor based on the finding that the APIs in question weren’t copyrightable, the US Court of Appeals overturned the decision. At this point Google issued a Petition for A Writ of Certiorari, see Android Copyright Battle Goes To Supreme Court. and the EFF filed an amicus brief signed by 77 high profile computer scientists making the argument that the Federal Cicuit's decision had:

"disrupted decades of settled expectations that APIs are not copyrightable".

It reiterated arguments made in an earlier petition by eminent computer scientists that:

The freedom to reimplement and extend existing APIs has been the key to competition and progress in the computer field—both hardware and software 

and that copyrighting APIs would not only block innovation but would make different systems incompatible.

In July 2015 the Supreme Court declined to consider the issue of copyright. This was after taking advice from the US Solicitor General for the views of the Obama administration which led to the worrying outcome White House advised that APIs are copyrightable.

In the second Oracle v Google trial, Google initially won and then the Federal Circuit reversed the ruling. So Google again asked for judicial review, which as the EEF puts it:

means the Supreme Court now has another chance to fix this mess. 

The reasons the EFF put forward as to why the Supreme Court should take the case are, to quote from Michael Barclay's post:

For one thing, the Federal Circuit was supposed to follow the law of the Ninth Circuit (which it didn’t do). Instead, the court created its own dangerous copyright law for computer software. What is worse, courts around the country are following the Federal Circuit’s opinions, instead of decisions from their local appeals courts (such as the Ninth Circuit) as they’re required to do. And the opinion’s mischief reaches beyond the courts, influencing Copyright Office rulemaking and legal scholarship.

In sum, the Federal Circuit has created a copyright mess that only the Supreme Court can fix. We hope that the Supreme Court will agree to review this case and put computer copyright law back on track.  

Given how much this means to all software developers, we have to hope that the Supreme Court accepts the responsibility and it makes a decision that enables software to continue to be developed in the way that it always has. This is about much more than just Android or Java.


More Information

EFF Amicus Brief ISO Petition for Writ of Certiorari

EFF Asks the Supreme Court to Clean Up the Oracle v. Google Mess

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Last Updated ( Wednesday, 01 May 2019 )