Power

Google and Oracle are headed to the Supreme Court. The future of software hangs in the balance.

A generation of software built around shared assumptions for interoperability faces an uncertain future depending on the outcome of a yearslong legal fight between Google and Oracle.

The U.S. Supreme Court

A ruling in its favor of Oracle in a case against Google could embolden older tech companies looking for growth to assert copyright over a wide swath of modern software.

Photo: Angel Xavier Viera-Vargas

Software fed upon itself in order to eat the world, digesting the earlier groundbreaking works of the development community in order to evolve into an economic force far more sophisticated than early programmers could have ever dreamed. The Supreme Court is about to decide whether to break that chain.

On Oct. 7, the nation's highest court will hear arguments in the long-running dispute between Oracle and Google over whether or not an important tool in modern software development can be subject to copyright protection, and the verdict could overturn long-standing practices behind modern software development. After Google prevailed in the initial trial related to its use of Java in the Android mobile operating system, two subsequent appeals courts rulings have upheld Oracle's argument that application programming interfaces (APIs) can be considered protected works of expression.

Generations of software has been built upon the premise that it makes little sense to duplicate some of the most basic parts of an application, especially the parts that make it easier for software to interact with other software. But now that it's almost impossible to imagine the modern commercial world without the rich network of software that has reached into every corner of our lives, most often through APIs, those who control those interactions control a large chunk of the world economy.

If Oracle's argument is upheld, software developers fear chilling effects will descend upon their industry. A ruling in its favor could embolden older tech companies looking for growth to assert copyright over a wide swath of modern software, arguing that many of today's applications would not exist without their work.

Leaving the appeals court rulings in place would definitely rattle the open-source software community, which built the blueprint for a generation of collaborative enterprise software development. It could make it that much harder to launch some new startups; it could also provide a legal defensive moat for other startup ideas. And it could further consolidate the power of the modern platform companies that control an increasing portion of this world.

"We're going to see a lot of software we would have seen written, not be written as a result of this," said Nell Shamrell-Harrington, a former senior staff research engineer at Mozilla who is active in open-source software communities. "[APIs] are the building blocks of the web."

Here comes the Sun

This dispute kicked off 10 years ago, following Oracle's acquisition of Sun Microsystems in 2009. Sun created Java, an extremely important programming language and software development platform that was the foundation for an enormous number of internet-connected applications in the late 1990s and early 2000s. More than 25 years later, Java remains the fifth most widely used programming language among professional software developers, according to this year's Stack Overflow survey.

When Google began development of Android, it wanted to use some key parts of Java's APIs as part of the core of Android, but it was unable to work out a licensing deal with Sun. So Google essentially duplicated those parts of Java in Android to implement similar ideas, while also using some code related to Java APIs taken from an open-source version of Java. It believed this action was protected by fair use principles, and a jury later agreed.

APIs are the connective tissue of modern software. If you use software that works in concert with another piece of software — which describes pretty much everything you now use — that interaction is often governed by an API, which sets ground rules for how software programs talk to each other and exchange information.

A brief filed in support of Google's argument signed by 83 prominent computer scientists explained it this way:

"Software interfaces, including those embodied in the Java application programming interface (API) at issue here, are purely functional systems or methods of operating a computer program or platform. They are not computer programs themselves. Interfaces merely describe what functional tasks a computer program will perform without specifying how it does so."

There aren't a lot of novel ways for software programs to exchange this information, so a great number of APIs are functionally alike; they might not use the exact same code, but for all intents and purposes, they accomplish pretty much the same thing.

"There's no reason to reimplement the structure of how software is implemented," Shamrell-Harrington said.

Red alert

Oracle argued, however, that Google's implementation of the Java APIs in Android was too similar to the way Sun engineers had implemented those APIs, and it sued Google in 2010 for copyright and patent infringement. The patent suit was tossed out at the initial trial, but the copyright claims have endured thanks to appeals court rulings that favored Oracle.

Five professors advising the Supreme Court on Oracle's point of view argued that APIs actually can be expressions of creative energy. "As our research demonstrates, even the simplest computer program is capable of being expressed in many ways," they wrote in a report. "As programs become more complex, the number of unique solutions also increases."

This is the aspect of this case that has both enraged and terrified people in the software community, especially those working for small- and medium-size companies, where APIs have rarely been considered more interesting than plumbing. Because so many APIs in use are functionally similar, whoever can claim to have originally developed those API methods would be able to assert copyright protection over those methods across a wide range of software, even software completely unrelated to the original interface.

"I think in a lot of those cases, it would be very easy to trip yourself into a place where you are unintentionally infringing," said Adam Jacob, co-founder and former chief technology officer at Chef and current CEO of stealthy startup The System Initiative.

Kyle Mitchell, an attorney who advises companies on software licensing issues, compared methods for building APIs to the tips and tricks that craftspeople acquire as they gain experience in a certain trade, like carpentry. Those so-called "secrets" are open knowledge among veterans of that trade, but they require some skill or a patient mentor to acquire; yet, no one "owns" the knowledge required to frame a wall, for example.

An Oracle victory would open up the floodgates to a new era of software litigation, said Van Lindberg, an intellectual property attorney with law firm Taylor English and a member of the board of directors for the Python Software Foundation.

"In the short term, it will be a huge windfall to a small number of companies that have interfaces that a lot of people use," he said. "These interfaces will suddenly be new control points that people will be able to use to extract revenue from other companies for the right to use what was previously understood to be free."

The delay to the hearing, which was originally scheduled for March but got pushed back due to the pandemic, has created a bigger challenge for Google. Because of the death of Justice Ruth Bader Ginsburg, there are now just eight justices on the Supreme Court, which means Google must secure a 5-3 verdict in its favor to overturn the appeals courts rulings. In the case of a 4-4 tie, the company could seek to have the case reheard before nine judges at some point in the future.

Silver lining?

Over the long run, a world where APIs are subject to copyright protection could actually be a boon to some startups that develop interesting and useful APIs for their software, Jacob argued.

A decade ago, enterprise software startups found traction by developing and commercializing interesting open-source software projects, which Jacob did successfully with Chef. The cloud era has started to expose the limits of that model, but APIs are even more important in the cloud era.

"In a world where the API is copyrightable, as an entrepreneur that's a brand-new vector of control," Jacob said. All things considered, he would prefer that the Supreme Court rule in favor of the status quo for APIs, but the software business has always forced its participants to adapt quickly to changes in the wind.

A large part of the problem is that two decades of software has been constructed without clear legal direction on how (or whether) APIs should be subject to copyright protection, Mitchell said. A victory for Oracle wouldn't bring immediate clarity to the issue, but it would serve as the beginning of a new round of legal wrangling that will define the parameters of how APIs can be protected.

"Is that bad overall? If you measure good and bad by the involvement of lawyers and paperwork, then yeah, it probably is," Mitchell said. "But were you living in denial?"

The Oracles and Googles of the software industry will be fine, regardless of which way the justices decide to vote. After all, they have billions of dollars in cash and armies of lawyers that will allow them to iron out licensing agreements and preserve interoperability across their key products.

But an Oracle victory could drag software development back into a world of silos, in which only the software built by a single vendor or across a consortium of powerful vendors would be able to enjoy the benefits of interoperability that have made the modern internet so compelling. Such a victory could create a new tax on software development, just as software becomes indispensable to the modern economy.

Climate

This carbon capture startup wants to clean up the worst polluters

The founder and CEO of point-source carbon capture company Carbon Clean discusses what the startup has learned, the future of carbon capture technology, as well as the role of companies like his in battling the climate crisis.

Carbon Clean CEO Aniruddha Sharma told Protocol that fossil fuels are necessary, at least in the near term, to lift the living standards of those who don’t have access to cars and electricity.

Photo: Carbon Clean

Carbon capture and storage has taken on increasing importance as companies with stubborn emissions look for new ways to meet their net zero goals. For hard-to-abate industries like cement and steel production, it’s one of the few options that exist to help them get there.

Yet it’s proven incredibly challenging to scale the technology, which captures carbon pollution at the source. U.K.-based company Carbon Clean is leading the charge to bring down costs. This year, it raised a $150 million series C round, which the startup said is the largest-ever funding round for a point-source carbon capture company.

Keep Reading Show less
Michelle Ma

Michelle Ma (@himichellema) is a reporter at Protocol covering climate. Previously, she was a news editor of live journalism and special coverage for The Wall Street Journal. Prior to that, she worked as a staff writer at Wirecutter. She can be reached at mma@protocol.com.

Sponsored Content

Great products are built on strong patents

Experts say robust intellectual property protection is essential to ensure the long-term R&D required to innovate and maintain America's technology leadership.

Every great tech product that you rely on each day, from the smartphone in your pocket to your music streaming service and navigational system in the car, shares one important thing: part of its innovative design is protected by intellectual property (IP) laws.

From 5G to artificial intelligence, IP protection offers a powerful incentive for researchers to create ground-breaking products, and governmental leaders say its protection is an essential part of maintaining US technology leadership. To quote Secretary of Commerce Gina Raimondo: "intellectual property protection is vital for American innovation and entrepreneurship.”

Keep Reading Show less
James Daly
James Daly has a deep knowledge of creating brand voice identity, including understanding various audiences and targeting messaging accordingly. He enjoys commissioning, editing, writing, and business development, particularly in launching new ventures and building passionate audiences. Daly has led teams large and small to multiple awards and quantifiable success through a strategy built on teamwork, passion, fact-checking, intelligence, analytics, and audience growth while meeting budget goals and production deadlines in fast-paced environments. Daly is the Editorial Director of 2030 Media and a contributor at Wired.
Workplace

Why companies cut staff after raising millions

Are tech firms blowing millions in funding just weeks after getting it? Experts say it's more complicated than that.

Bolt, Trade Republic, HomeLight, and Stord all drew attention from funding announcements that happened just weeks or days before layoffs.

Photo: Pulp Photography/Getty Images

Fintech startup Bolt was one of the first tech companies to slash jobs, cutting 250 employees, or a third of its staff, in May. For some workers, the pain of layoffs was a shock not only because they were the first, but also because the cuts came just four months after Bolt had announced a $355 million series E funding round and achieved a peak valuation of $11 billion.

“Bolt employees were blind sided because the CEO was saying just weeks ago how everything is fine,” an anonymous user wrote on the message board Blind. “It has been an extremely rough day for 1/3 of Bolt employees,” another user posted. “Sadly, I was one of them who was let go after getting a pay-raise just a couple of weeks ago.”

Keep Reading Show less
Nat Rubio-Licht

Nat Rubio-Licht is a Los Angeles-based news writer at Protocol. They graduated from Syracuse University with a degree in newspaper and online journalism in May 2020. Prior to joining the team, they worked at the Los Angeles Business Journal as a technology and aerospace reporter.

Climate

The fight to define the carbon offset market's future

The world’s largest carbon offset issuer is fighting a voluntary effort to standardize the industry. And the fate of the climate could hang in the balance.

It has become increasingly clear that scaling the credit market will first require clear standards and transparency.

Kevin Frayer/Getty Images

There’s a major fight brewing over what kind of standards will govern the carbon offset market.

A group of independent experts looking to clean up the market’s checkered record and the biggest carbon credit issuer on the voluntary market is trying to influence efforts to define what counts as a quality credit. The outcome could make or break an industry increasingly central to tech companies meeting their net zero goals.

Keep Reading Show less
Lisa Martine Jenkins

Lisa Martine Jenkins is a senior reporter at Protocol covering climate. Lisa previously wrote for Morning Consult, Chemical Watch and the Associated Press. Lisa is currently based in Brooklyn, and is originally from the Bay Area. Find her on Twitter ( @l_m_j_) or reach out via email (ljenkins@protocol.com).

Policy

White House AI Bill of Rights lacks specific guidance for AI rules

The document unveiled today by the White House Office of Science and Technology Policy is long on tech guidance, but short on restrictions for AI.

While the document provides extensive suggestions for how to incorporate AI rights in technical design, it does not include any recommendations for restrictions on the use of controversial forms of AI.

Photo: Ana Lanza/Unsplash

It was a year in the making, but people eagerly anticipating the White House Bill of Rights for AI will have to continue waiting for concrete recommendations for future AI policy or restrictions.

Instead, the document unveiled today by the White House Office of Science and Technology Policy is legally non-binding and intended to be used as a handbook and a “guide for society” that could someday inform government AI legislation or regulations.

Blueprint for an AI Bill of Rights features a list of five guidelines for protecting people in relation to AI use:

Keep Reading Show less
Kate Kaye

Kate Kaye is an award-winning multimedia reporter digging deep and telling print, digital and audio stories. She covers AI and data for Protocol. Her reporting on AI and tech ethics issues has been published in OneZero, Fast Company, MIT Technology Review, CityLab, Ad Age and Digiday and heard on NPR. Kate is the creator of RedTailMedia.org and is the author of "Campaign '08: A Turning Point for Digital Media," a book about how the 2008 presidential campaigns used digital media and data.

Latest Stories
Bulletins