Academic journal article Harvard Journal of Law & Technology

Platforms and Interoperability in Oracle V. Google

Academic journal article Harvard Journal of Law & Technology

Platforms and Interoperability in Oracle V. Google

Article excerpt

TABLE OF CONTENTS    I. INTRODUCTION                                 603  II. COPYRIGHT LAW ENCOURAGES INTEROPERABILITY    604 III. INTEROPERABILITY PROMOTES INNOVATION         609  IV. CONCLUSION                                   613 

I. INTRODUCTION

Copyright exists to promote creativity. As a result, the copyright laws strike a series of delicate balances in order to protect different groups of creators. Too much protection for one group thwarts the creative innovation of others. Achieving the right balance is particularly important when it comes to software because software's interactive nature makes the risks of overprotecting existing software particularly great.

Oracle v. Google presents a useful lens to see how this balance is struck. As Peter Menell has documented in detail, (1) the case concerns the extent and limits of interoperability between platforms. In particular, the ultimate outcome of the case will help decide whether the future of phone platforms is open or closed. That in turn has significant implications for innovations written for those platforms.

The Ninth Circuit, like others, has emphasized the importance of interoperability in computer software copyright cases. It has repeatedly held that parties are free to copy the elements of a computer interface necessary to write new and different programs that work with the plaintiff's existing program. (2) The Federal Circuit will nominally apply Ninth Circuit law in Oracle v. Google. How it does so will affect the future of software innovation not just on the Android platform but in "walled gardens" throughout the Internet. (3)

Software companies, and startups in particular, rely on interoperability to build new and innovative products. Without it, developers would be at the mercy of proprietary platforms written in specific, rapidly obsolete computer languages and without the ability to create new and innovative products that are broadly accessible to consumers. (4) The result of such a balkanized regime would be significantly less creativity--the very opposite of what copyright law is designed to achieve. The freedom to interoperate is particularly important in software copyright because copyright in software is more likely than other copyrights to confer control over a market.

II. COPYRIGHT LAW ENCOURAGES INTEROPERABILITY

Debates over interoperability have a long history in software copyright law. The basic contours of that law were established a quarter century ago. At that time, both Oracle and its predecessor Sun lauded the benefits of interoperability. In a brief filed by the American Committee for Interoperable Systems, a trade association that claimed both Sun and Oracle as members in the 1990s, both companies argued that copyrights over application program interfaces (APIs) should not be used to prevent the creation of interoperable programs. They wrote:

If the developer of one part of the environment can use copyright law to prevent other developers from writing programs that conform to the system of rules governing interaction with the environment--interface specifications, in computer parlance--the first developer could gain a patent-like monopoly over the system without ever subjecting it to the rigorous scrutiny of a patent examination. (5) 

Things have changed, as one of the authors worried they might. (6) Oracle's effort to prevent interoperability in Oracle v. Google is particularly ironic because Java was itself developed as a way of creating interoperability across platforms. But because Java was not released as open source software, Lemley & McGowan worried in 1998 about the possibility that Sun would try to close the Java standard to others to reap the benefits of widespread adoption. (7) And indeed that is what happened after oracle bought Sun.

Whether Oracle can close the standard is another matter--a legal one. To some extent those issues are a function of the history of Java, which might create contract or estoppel rights to continued access to Java APIs on behalf of existing users or perhaps even the public. …

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