Finding an unAPI Medium

May 10, 2014

You may be forgiven for thinking that a ruling by three judges sitting in Washington DC as the US Court of Appeals for the Federal Circuit late on a Friday afternoon (our time) could be safely ignored. When I point out that the appeal from the US District Court for the Northern District of California involved Oracle and Google, you might begin to show an interest. But it is not just because this fight is between these big boys in the IT schoolyard that the case matters nor because the Oracle claim against Google is said to be worth $1 billion (although that’s hard to ignore); it matters because the ruling on APIs, which you can read {here}, might fundamentally affect software development across the globe. The Federal Court has suggested that ‘the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection’.

Having started with a little scare-mongering, let me backtrack a little. This decision is appealable. Even if it is not appealed (and it will be), the Federal Court has referred the case back to the District Court in California so all the issues remain to be resolved. Moreover, and forgive me for stating the obvious, this is US law.

As regards the last point, while I would love to say that nobody in the EU should care, it is not a tenable position. Whilst we have had a clear ruling from the Court of Justice of the European Union to the effect that APIs are not protected, this latest suggestion that action might be taken by those using Java API packages programs can only be ignored by those developing apps and programs that are never going to stray beyond the EU’s borders. Hands up all those developers to whom that applies. Not many it seems – and all of those left with their hands up are working in a bedroom in their parents’ house.

The effect of the latest ruling is to create a divide in approach between the USA and the EU. This is not good news for the EU software industry, as I see Joren De Wachter tweeted yesterday, it is bad news for the software industry generally.

The Federal Court may have got this wrong. As the Court reminded itself, ‘Applying copyright law to computer programs is like assembling a jigsaw puzzle whose pieces do not quite fit’ and my gut feeling is that they have not paid enough attention to the picture on the front of the jigsaw box. But I will put aside the legal arguments in the hope that others with much greater expertise will provide analysis (please feel free to e-mail me with views). Right or wrong, the obvious effect of Friday’s ruling is to create a climate of uncertainty that will stifle growth and innovation. At the very least, time better spent on innovation will be devoted to checks on the ways (if any) in which Java API packages have been referred to. That period of uncertainty will last many months (at best) and will costs millions. There is room for an extra-judicial solution here, but no real hope of one.

On the bright side, UK lawyers, indeed lawyers across the world, can look forward to putting the fear God into their software clients (well, fear of US sanctions is close). Enjoy.