About 10 years ago, Oracle made its first move to sue Google for infringement of its IP rights of certain application programming interfaces (APIs) within its Java open-source programming language. Now, a decade later, the case - which has ping-ponged around the American civil court system in the interim, being ruled on in various ways favorable and unfavorable to either party - will meet its definitive end in the U.S. Supreme Court sometime in 2020, likely in July.
Whichever way it goes, the case is sure to have significant repercussions. Several distinct factors at play here will be most relevant to the case's present circumstances and future implications:
Gray areas of fair use
Java, created by Sun Microsystems in 1995 and still in use today, has been an open-source platform for much of its existence: As such, anyone with the ability to do so can, theoretically, use it to build any software or applications they want.
Readers unfamiliar with this case may be saying, "Wait a minute!" and we would not blame you, so let us rewind just a little bit. Oracle acquired Sun in 2010 together with all of that brand's IP, and almost immediately sued Google for using Java APIs in its Android mobile operating system. The search giant countered by saying Java's open-source status means its borrowing of the code is protected by fair use. Oracle and its lawyers maintain that Java APIs are open source, but the use of said APIs in a competing platform or on mobile devices requires licensure.
The last court to weigh in on this matter, the Federal Circuit, took Oracle's side in a 2018 decision. If the Supreme Court rules similarly, it effectively means that fair use is not a get-out-of-jail-free card for disputes regarding specific IPRs. It could establish a precedent that might be applied to other fair-use cases far beyond the tech world.
Broader issues of open-source IP
Software, interfaces and code falling under the umbrella of open source have historically been considered available for use by anyone with the gumption and creativity to do so. However, that freedom could be at risk based on the argument with which Oracle won over the Federal Circuit and intends to present to the U.S.'s highest court.
Software, interfaces and code have always been considered available for use by anyone with the gumption and creativity to do so. However, that might change following the argument with which Oracle won over the Federal Circuit.
In Google's petition for certiorari to the Court's justices, the company noted that Oracle's argument (which the Federal Circuit accepted) rested mostly on the software developer's desire, at one time, to compete in the smartphone market. Anyone who knows tech is well-aware that Oracle is not a player in that industry and never got off the ground with any plans to enter it. Nevertheless, the Circuit judges, in a 3-0 decision, declared Google's use of the Java APIs in the Android OS was detrimental enough in spirit to constitute a violation of Oracle's IP rights.
Compounding the complicated nature of this case is the fact that Android itself is open-source. This is why so many different smartphone brands use it within their devices, as opposed to iOS, which is limited to Apple smartphones and tablets. They are all taking Google's source code and adjusting it for unique product needs. If the idea of open-source freedom does not hold water with the Supreme Court in this instance, other developers of open-source assets might change their tune and start claiming certain users of the work are engaging in IP infringements.
It is worth noting that Google was in negotiations to license Java on multiple occasions: in 2005 when the coding language was still directly overseen by Sun Microsystems, and later in 2010, just after Oracle had acquired Sun. Thousands of developers and tech creators have entered into license agreements with Oracle or Sun to use Java - why would Google not follow suit?
Thousands of developers and tech creators have entered into license agreements with Oracle or Sun to use Java, but Google proponents maintain the specific Java content was not patent- or copyright-eligible, rendering the licensing question moot.
Those on Oracle's side would contend Google hoped to establish a market advantage Oracle could not match or overcome by avoiding a licensing agreement. Google proponents maintain the specific Java content was not patent- or copyright-eligible, rendering the licensing question moot. The outcome of this case in July will almost certainly dictate how much credence parties in similar matters grant to the need for licensure going forward.
Relevance to global IP law
While the Google-Oracle dispute is being decided for the last time in the highest U.S. court, numerous other countries have fair use laws - and more to the point, the tech market is all but borderless in many ways. Thus, the case's result will have global implications. For example, it could affect how other countries view U.S. IP protections or, depending on how they see a pro-Google case outcome, the perceived lack thereof.
The authors contribute to this blog in their personal capacity. The views expressed are their own and do not necessarily represent the views of Dennemeyer IP Solutions, Dennemeyer & Associates, or Dennemeyer Consulting.