Two weeks ago, the Department of Justice’s top Supreme Court lawyers filed a brief in an extremely important case that concerns … whether API interfaces should be copyrightable. I know the copyrightability of API interfaces (to be explained below) sounds pretty nerdy, but, before you threaten to give me an atomic wedgie, you should know two things. One, the case will affect all your friends with Android phones. Two, it will also affect anyone who uses the Internet, now or years from now.
Unfortunately, the Department of Justice’s brief reflected that agency’s apparently usual tilt towards expansive copyright, regardless of the real consequences. The DOJ asked the Supreme Court not to review a lower court decision that said API interfaces are copyrightable. But that decision threatens new and existing websites and devices that we all rely on. Hopefully, the Supreme Court will ignore the DOJ’s recommendation and eventually reverses the lower court.
“But what’s an API?” you ask. API stands for “application programming interface” and is essentially a way for software developers to interact with information on other sites or on their own sites. When you go to a restaurant’s website and see an embedded map of the location, the restaurant’s developers didn’t create the map from scratch. They merely used an API—perhaps the Google Maps or Mapbox API—to get a map for the location. An API lets one company build on another’s innovation; we don’t all have to create a global mapping company merely to give directions to our restaurants. An API obviously has two parts: the interface and the code behind it. The interface is essentially a shortcut available to others (imagine “1899 M St. NW location” or some other shortcut that probably every map developer already knows) and the code behind it is all the complicated computer lines that create the visual map.
The case at issue involves whether the interfaces—just the shortcuts, not the code behind it—are copyrightable. It arises out of a lawsuit between Oracle and Google concerning the Java programming language. Computer programmers use a variety of “languages” to create websites and apps—they’re called Ruby on Rails, Python, Erlang, C+, Basic, and so on. Some languages are more popular than others, the same way English is more popular than Icelandic or Dutch. In 1996, a company called Sun Microsystems created an extremely popular language called Java. To make it popular, Sun offered the language “free for all to use.” (Apple just made Swift, the programming language it created for iPhone apps, free to use earlier this week, for the same purpose.)
When Sun made Java free for all, it created an API that included shortcuts to creating blocks of code in Java. To use an analogy for those of us who can write in English not code, Sun was letting people write “Our Father” instead of typing out the whole prayer or write “First Corinthians” instead of typing every word in Paul’s first letter to the Corinthians. As a result, Java programmers could more quickly create programs by using shortcuts.
When Google released the Android operating system in 2008, it chose Java as the programming language for outside developers to create Android apps. Because millions of developers used Java, Google could build on the know-how that developers had and the learning-investments they’d made in Java and those developers could create businesses based on existing skills.
But, because developers were accustomed to Sun’s Java shortcuts, Google copied 6,000 of them from 37 packages. It rewrote all the code behind them. To continue our book analogy, Google re-translated the Our Father from Aramaic and First Corinthians from Greek, but still titled them “Our Father” and “First Corinthians” so people didn’t have to learn new titles for every prayer or book.
Oracle asserted a copyright in the shortcuts—in the actual interface language used to call the new code Google had written. And Oracle sued Google for a billion dollars.
It even won, at the Federal Circuit—a lower court known for expanding intellectual property, mainly in patents, before the Supreme Court eventually unanimously and aggressively reverses that court’s decisions on a semi-monthly basis. Some analysts have proposed simply eliminating that court, considering all the patent trolls it has created and all the damage it has done to our economy and innovation.
The Federal Circuit decision in the API case is already harming innovation in software for a simple reason: APIs are a big deal. The case obviously would impact the Android operating system at issue in the case, and Android is the most popular mobile operating system, used on hundreds of millions of devices. So that’s a big deal.
The case would also impact other technologies. According to a legal brief by 70 top computer scientists, uncopyrighted API interfaces have been essential to software innovation since at least the early 1980s. That brief provides example after example, including operating systems, computer languages, Internet protocols, and cloud computing, all of which have benefited from the assumption of uncopyrighted interfaces.
The DOJ Supreme Court lawyers are wrong. The Federal Circuit decision shouldn’t stand, and the Supreme Court hopefully will see to that.
Disclosure: I advise Google on a range of Internet freedom and access issues, but these views are entirely my own.
