Google is on the Wrong Side of the 'Copyright Case of the Century'

On January 6, 2020, Google submitted its brief in the case of Google v. Oracle, kicking off the Supreme Court case that many are calling the “copyright case of the decade.” The suit pits the search engine platform controlling 93 percent of the worldwide search market against Oracle, the owner of the ubiquitous Java program. After attempting and failing to secure the rights to Java, Google decided to cease negotiating and instead replicated 37 API packages from the copyrighted program, a decision that precipitated the years-long lawsuit. 

An API, or application programming interface, is what allows different parts of a computer program to communicate with one another seamlessly. APIs are like the turbocharger in a car engine. They speed up the process of retrieving Google’s search results and enhance the user’s experience. To users of a search engine, speed and accuracy of search results are the most important factors affecting their choice. Oracle’s APIs essentially make Google’s search engine hum.

Essentially, Google wants to drive on Oracle’s eight-lane, super-expressway instead of utilizing the slower side roads — and it wants to do so without compensating Oracle, the creator and maintainer of the expressway, for the privilege.

Google claims that, because of the “fair use” doctrine, it shouldn’t have to — APIs shouldn’t be copyrightable, and requiring programmers to pay for the APIs they use would “harm innovation.”  This argument is like stating Uber users should not have to pay for their rides because if Uber were free, people would travel more.

Currently, fair use only permits replication of a copyrighted work if the result is transformative in nature—in other words, the original work has been changed so drastically that it no longer functions as the original creator intended. But Google’s verbatim copy clearly wasn’t transformative at all.

To make up for this fact, Google argues that APIs aren’t individual, creative expressions, but are instead more akin to essential roads one has no choice but to take to reach a destination and thus cannot be subjected to federal copyright law. The Federal Circuit Court objected, however, hence the appeal to the Supreme Court. 

In their ruling, the court found that there were “unlimited” creative ways the code could have been constructed to perform the same function. For Google, the APIs it took from Oracle weren’t the only highway into town. Rather, they were individualized creations, unique to Java — precisely the sort of thing that digital copyright is designed to protect. As such, the Federal Circuit Court ruled that Google cannot drive its Rolls Royce for free on Oracle’s highway and must either abide by its licensing terms or take the side roads instead.

There are plenty of examples that undermine Google’s claim that APIs are meant to be open source. In the airline industry, for example, airlines utilize proprietary APIs to allow their reservation systems to function. These companies have sometimes permitted chosen third-party agencies to copy and reuse their APIs so the airlines’ systems can operate more efficiently, just as Oracle has always allowed app producers and non-competing platform developers to utilize its APIs without a license. But at the end of the day, the creators of these API get to decide who gets access (and who does not).

Ultimately, copyrights are essential; without them, programmers would lack the drive to innovate. If they are neutered, companies who rely upon these copyright protections, either for competitive or security purposes, would no longer have the protections they need to justify spending on innovation. Without copyright to protect their proprietary APIs from poachers, software companies would essentially be forced to give away their work. In the case of Google v. Oracle, Oracle would be giving its proprietary APIs to a company eight times larger — one that can afford to pay a reasonable price for it.

Any programmers who dream of working for themselves (or a smaller company) to create something instead of being a cog in a trillion-dollar monopoly machine need to sit up and take notice. A ruling for Google could expand the exceptions to copyright beyond all reasonable measures, swallowing the rules of the road that have made the United States one of the most innovative countries Earth has ever seen.

Michael W. Shore is a Partner at Shore Chan DePumpo LLP, an intellectual property practice specializing in IP commercialization, business litigation, and other select litigation matters. Currently representing a range of Fortune 500 companies, Shore previously headed the Intellectual Property Licensing and Litigation Practice Group.