Google’s petition for appeal last October of a May 2014 Federal Circuit decision in favor of Oracle tried to make its case about more than it truly was: the copyrightability of the use of application programming interfaces. 

The US Supreme Court’s denial of Google’s petition leaves the issue where the Federal Circuit left it:  The code that describes an API is the intellectual property of its creator.

The confusion has been over the extent of “use” in this context. Google has made a public issue about copyrightability limiting the extent to which ordinary people could use an API, and another public issue about whether a business method built around an API should be subject to patent law rather than copyright law.

The Use of ‘Use’

“Domestic and international laws also reflect the importance of protecting the public’s right to use interfaces freely, without risking copyright liability,” wrote Google’s counsel in their appeal to the high court. “Those laws make sense because, after identifying and analyzing the computer code that is necessary to achieve interoperability, developers are free to use it, as Google did here.”

But in an amicus brief filed last May, the US Solicitor General argued that, when Google implemented a Java compiler called Dalvik in its original implementation of Android, it was not required to copy Sun Microsystems’ Java code in order to replicate its methods. It did so anyway, and that’s the problem.

“Petitioner [Google] does not dispute the court of appeals’ statement that there were ‘unlimited’ ways that respondent [Oracle, on Sun’s behalf] could have named and structured its methods... and nothing logically required petitioner to copy respondent’s declaring code with it created the Android platform.”

Use of an API and copying of it, are somewhat different things. In the emerging realm of microservices architecture, APIs form the bridge between otherwise secluded services in the cloud, and the rest of the world. The only way for code to address a microservice is through an API function, and in architectures such as Docker’s, the way to address that API function is through an HTTP directive.

“Methods of Operation”

So it would appear the express purpose of an API is to be used in this particular way. If an API is an interoperable concept, then if someone else produces an API that does essentially the same thing, it may perhaps violate patent but not copyright, argued Google.

The Android maker cited the famous case of Lotus 1-2-3, whose command structure many software makers including Borland International (Quattro) replicated for their own spreadsheets. A command structure in this case, ruled the First Circuit Court of Appeals in 1995, constituted a “method of operation” that falls outside the scope of copyright.

Google tried slipping the Dalvik API into the same “method of operation” context. That attempt backfired with the Solicitor General, whose counter-argument is difficult to dispute.

“Petitioner does not and could not plausibly assert, however, that interoperability with the Java platform is a prerequisite to Android’s proper functioning,” wrote Donald B. Verrilli, Jr. Citing an appeals court document, Verrilli continued, “To the contrary, petitioner ‘designed Android so that it would not be compatible with the Java platform.’”

Google tried to argue that an API falls under the scope of patent law rather than copyright law because APIs are methods that are intended for interoperability. It simultaneously argued that Google had to copy the source code for Sun’s API directly (even leaving in the comments written by Sun’s developers) in order for Java functionality to appear in Android. Verrilli’s skillful positioning of those arguments within his amicus brief revealed Google could not have it both ways.

Separate Issues

So where does this leave you? Contrary to what you may have read, you cannot be held liable for your programs placing function calls, via HTTP or any other method, to any server’s APIs.

If your organization runs a server that hosts custom APIs produced by your own development team, then those APIs may be protected by copyright. Conceivably, the business method represented in those APIs may be patentable, but the patent does not extend to the specific code of the API.

If some other firm copies your patented business method in the course of its business, and refuses to pay you royalties, you may have a case. But whether the business method was copied and whether the code was copied are separate issues. And if the code really was copied, then you may have another case too.

As the Federal Circuit cited last year, in a decision the Supreme Court effectively upheld this morning, patentability and copyrightability are separate issues. Google copied Sun’s code, and apparently did not need permission to do so at the time. But there was never an express agreement between the two parties to that effect.

That’s why, argued the Solicitor General, this case actually did not have major precedent in the software industry. And that may have been the final straw in the Supreme Court’s denial of Google’s appeal.

In a statement this morning, Oracle General Counsel Dorian Daley wrote, “Today's Supreme Court decision is a win for innovation and for the technology industry that relies on copyright protection to fuel innovation.”