Thursday11 August 2022

US DoJ Says the Supreme Court should not hear Google's Case

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The Google-Oracle fight has been going on for a long time now and has had a few ups and downs in the course of the case. The original premise of the case is that Google was able to speed up development through the reuse of nine (9) lines of code that Oracle claims are protected by copyright. One judge agreed that this was absurd, but his decision was thrown out on appeal. Now, the Department of Justice is throwing their two cents into the mix at the request of the Supreme Court. Their commentary is quite interesting…

The US DoJ is recommending that the Supreme Court not hear the case that Google is presenting. They use the logic that an API is like a book. You cannot copy a book, but you can use the information in the book when you want. That this is not accurate might not be clear to members of the Supreme Court. An API is like a recipe book it gives you a basis for building something, but it contains man steps that are required even if you create your own version of the dish you are making. Take an Apple Pie, there are certain standard ingredients in that dish that you have to use (Apples). If I come up with my own Apple pie, and use a couple of new ingredients, but still the common ones I would be guilty of copyright infringement according to the DoJ if I wrote it down.

Of course this is ignoring the fantasy that nine lines of code can accelerate the completion of an OS even if the code is a commonly used method in how the OS works. It might shave off a few hours, but the overall development of the application is not going to be significantly reduced. The case, which is thin as it is, really seems to be about attacking Google and Android. Oracle’s then CEO Larry Ellison had close ties with Apple and Steve Jobs. He had made statements to the effect that he would like to see Google fail for his friend. Ellison was voted out and replaced by Mark Hurd, but the suit continues despite that.

So why is the DoJ really weighing in on this and asking the Supreme Court not to hear arguments on if APIs and programing languages can be covered by copyright? After all in the EU it was agreed that these could not be protected by copyright: “neither the functionality of a computer program nor the programming language and the format of data files used in a computer program in order to exploit certain of its functions constitute a form of expression. Accordingly, they do not enjoy copyright protection.” In many cases the US will follow the same polices that the EU does for consistency in copyright and patent issues.

In this case the DoJ is clarely trying to state the opposite and is saying that APIs should be protected by copyright. Do they really feel this way or is there another more political reason behind the recommendation. We know that the White House has very close ties to the copyright industry. Vice President Joe Biden is close friends with MPAA Boss Chris Dodd.  Dodd and the MPAA are not fans of Google since they have actively opposed many of the attempts to police the internet. There is even a rumor that the MPAA’s project Goliath is actually a plan to attack Google and prevent them from opposing future regulations. It is possible that Dodd is using his influence in the White House to push the DoJ to recommend against the Supreme Court from hearing arguments against API copyright protection. If they reject Google’s case that is a major blow to them in their defense and could tip the scales in Oracle’s favor. This would have a pretty significant financial impact on Google and could hinder their efforts to support an open internet.

We all know that the DoJ is not above doing things at the request of the MPAA and RIAA after all the case against MegaUpload and Kim Dotcom still has not produced any credible evidence and it is still being kept open by the DoJ and the copyright lobby.

If APIs are protected by copyright it will have a significant impact on the software industry. Independent developers could find themselves at risk of legal action just because they use a certain programing language as their base. I can envision massive compatibility issues simply because no one wants to get sued. It will be interesting to see how this all plays out.

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