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.

Fintech

Can crypto regulate itself? The Lummis-Gillibrand bill hopes so.

Creating the equivalent of the stock markets’ FINRA for crypto is the ideal, but experts doubt that it will be easy.

The idea of creating a government-sanctioned private regulatory association has been drawing more attention in the debate over how to rein in a fast-growing industry whose technological quirks have baffled policymakers.

Illustration: Christopher T. Fong/Protocol

Regulating crypto is complicated. That’s why Sens. Cynthia Lummis and Kirsten Gillibrand want to explore the creation of a private sector group to help federal regulators do their job.

The bipartisan bill introduced by Lummis and Gillibrand would require the CFTC and the SEC to work with the crypto industry to look into setting up a self-regulatory organization to “facilitate innovative, efficient and orderly markets for digital assets.”

Keep Reading Show less
Benjamin Pimentel

Benjamin Pimentel ( @benpimentel) covers crypto and fintech from San Francisco. He has reported on many of the biggest tech stories over the past 20 years for the San Francisco Chronicle, Dow Jones MarketWatch and Business Insider, from the dot-com crash, the rise of cloud computing, social networking and AI to the impact of the Great Recession and the COVID crisis on Silicon Valley and beyond. He can be reached at bpimentel@protocol.com or via Google Voice at (925) 307-9342.

Every day, millions of us press the “order” button on our favorite coffee store's mobile application: Our chosen brew will be on the counter when we arrive. It’s a personalized, seamless experience that we have all come to expect. What we don’t know is what’s happening behind the scenes. The mobile application is sourcing data from a database that stores information about each customer and what their favorite coffee drinks are. It is also leveraging event-streaming data in real time to ensure the ingredients for your personal coffee are in supply at your local store.

Applications like this power our daily lives, and if they can’t access massive amounts of data stored in a database as well as stream data “in motion” instantaneously, you — and millions of customers — won’t have these in-the-moment experiences.

Keep Reading Show less
Jennifer Goforth Gregory
Jennifer Goforth Gregory has worked in the B2B technology industry for over 20 years. As a freelance writer she writes for top technology brands, including IBM, HPE, Adobe, AT&T, Verizon, Epson, Oracle, Intel and Square. She specializes in a wide range of technology, such as AI, IoT, cloud, cybersecurity, and CX. Jennifer also wrote a bestselling book The Freelance Content Marketing Writer to help other writers launch a high earning freelance business.
Enterprise

Alperovitch: Cybersecurity defenders can’t be on high alert every day

With the continued threat of Russian cyber escalation, cybersecurity and geopolitics expert Dmitri Alperovitch says it’s not ideal for the U.S. to oscillate between moments of high alert and lesser states of cyber readiness.

Dmitri Alperovitch (the co-founder and former CTO of CrowdStrike) speaks at RSA Conference 2022.

Photo: RSA Conference

When it comes to cybersecurity vigilance, Dmitri Alperovitch wants to see more focus on resiliency of IT systems — and less on doing "surges" around particular dates or events.

For instance, whatever Russia is doing at the moment.

Keep Reading Show less
Kyle Alspach

Kyle Alspach ( @KyleAlspach) is a senior reporter at Protocol, focused on cybersecurity. He has covered the tech industry since 2010 for outlets including VentureBeat, CRN and the Boston Globe. He lives in Portland, Oregon, and can be reached at kalspach@protocol.com.

Policy

How the internet got privatized and how the government could fix it

Author Ben Tarnoff discusses municipal broadband, Web3 and why closing the “digital divide” isn’t enough.

The Biden administration’s Internet for All initiative, which kicked off in May, will roll out grant programs to expand and improve broadband infrastructure, teach digital skills and improve internet access for “everyone in America by the end of the decade.”

Decisions about who is eligible for these grants will be made based on the Federal Communications Commission’s broken, outdated and incorrect broadband maps — maps the FCC plans to update only after funding has been allocated. Inaccurate broadband maps are just one of many barriers to getting everyone in the country successfully online. Internet service providers that use government funds to connect rural and low-income areas have historically provided those regions with slow speeds and poor service, forcing community residents to find reliable internet outside of their homes.

Keep Reading Show less
Aditi Mukund
Aditi Mukund is Protocol’s Data Analyst. Prior to joining Protocol, she was an analyst at The Daily Beast and NPR where she wrangled data into actionable insights for editorial, audience, commerce, subscription, and product teams. She holds a B.S in Cognitive Science, Human Computer Interaction from The University of California, San Diego.
Fintech

How I decided to exit my startup’s original business

Bluevine got its start in factoring invoices for small businesses. CEO Eyal Lifshitz explains why it dropped that business in favor of “end-to-end banking.”

"[I]t was a realization that we can't be successful at both at the same time: You've got to choose."

Photo: Bluevine

Click banner image for more How I decided series

Bluevine got its start in fintech by offering a modern version of invoice factoring, the centuries-old practice where businesses sell off their accounts receivable for up-front cash. It’s raised $240 million in venture capital and about $700 million in total financing since its founding in 2013 by serving small businesses. But along the way, it realized it was better to focus on the checking accounts and lines of credit it provided customers than its original product. It now manages some $500 million in checking-account deposits.

Keep Reading Show less
Ryan Deffenbaugh
Ryan Deffenbaugh is a reporter at Protocol focused on fintech. Before joining Protocol, he reported on New York's technology industry for Crain's New York Business. He is based in New York and can be reached at rdeffenbaugh@protocol.com.
Latest Stories
Bulletins