The Supreme Court recently granted certiorari to Google in its ongoing litigation with Oracle over the former’s use of the latter’s application programming interface (API). In light of this development in a decade-long legal battle with significant implications for copyright law and innovation, Niskanen Center is proud to join R Street Institute and Public Knowledge in an amicus brief in support of the petitioner, Google.

The current case hinges on a claim of alleged copyright infringement by Google (for a full timeline of the litigation, read this page from the Disruptive Competition Project). In 2010, Oracle claimed copyright infringement by Google for the latter’s use of 11,500 lines of code from the API of the Java SE system. The most recent decisions have dealt with whether or not Google’s use of the code was protected by fair use.  

We are, however,  taking a different approach: namely, we maintain that the APIs themselves should not be protected by copyright.

Due to the highly incremental nature of innovation in software development and the ubiquitous borrowing inherent to the creative process in this industry, the ability to copyright thousands of lines of code that, in isolation, enable the performance of common functions is contrary to the Constitution’s stated goal of “promot[ing] the Progress of Science and useful Arts.”

This sort of reimplementation is ubiquitous, predates this case (and computing in general) by centuries, and is beneficial for the free flow of information. Naval flag signals, floriography, telegraphic codes, hospital codes, and countless other systems that translate ideas, phrases, and commands into symbols have been reimplemented throughout history to the benefit of communication. Progress would be severely limited if such reimplementation were restricted or not possible.

APIs are designed to be “shortcuts” that could, in fact, be re-written by any programmer in a different language. Avoiding the shortcut by using different names to perform the same functions–as Oracle has argued–would allow Google to escape any claims of infringement. But it would also break compatibility for millions of lines of existing Java software and thousands of skilled Java programmers. Writ large across the many industries that depend on APIs in the form of Internet standards and communications technology, it cannot be the case that copyright serves its constitutional purpose by eradicating the tremendous economic value of compatibility and interoperability, as Oracle would have copyright law do.

Though this litigation is a battle between billion-dollar tech companies, a ruling in Oracle’s favor would have detrimental effects on competition in the software industry. A ruling that the use of Oracle’s APIs is protectable by copyright would allow Oracle and other firms to demand licensing fees to collect rents on computer code that the firm would have created without the promise of monopoly rents in the first place. Google may be able to afford such fees–but a new, promising startup may not.

In addition to promoting competition and eliminating anti-competitive barriers in the software market for firms both large and small, we believe that the arguments presented in the brief will further shift the discussion of intellectual property–in this case copyright–from a debate over property rights to one over the most effective way to design a subsidy to promote innovation.

We hope the Supreme Court recognizes that the very nature of the APIs in question, and the precedent of non-infringing reimplementation throughout history–in the software industry, by the federal government, and even by Oracle itself–makes them uncopyrightable.