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Monopolizing the Disruptive
The Federal Circuit decisions in the Oracle v. Google copyright case rattled Silicon Valley not simply because the decisions upended software developers' understandings of copyright law, but also because the decisions do not comport with the disruptive ethos of the technology industry. Software development thrives on an open environment defined by creation through iteration. Yet, the Federal Circuit's decisions grant a copyright holder a tremendous amount of control over even a small portion of code, and by extension, developers who use that code to create new products. Such control is especially acute when dealing with a copyright holder known for aggressive litigation tactics, such as Oracle. In the wake of Google's recent petition for certiorari, Petition for Writ of Certiorari, Google LLC v. Oracle Am. Inc., No. __ (Jan. 25, 2019), this article reviews the Federal Circuit decisions and summarizes their legal, economic, and cultural impact. The analysis suggests that much of the innovation of the technology sector now hinges on the U.S. Supreme Court.
Case Background
The underlying facts leading up to the dispute between the two industry titans are well known. Sun Microsystems developed its Java programming language in the 1990s and made this language open and available to the industry sans license. It soon became an industry standard for software development. Part and parcel of this language is the Java application programming interface (API), containing source code for particular tasks (“each package is like a bookshelf in [a] library, each class is like a book on the shelf, and each method is like a how-to chapter in a book.” Oracle v. Google, 750 F.3d 1339, 1349 (Fed. Cir. 2014)). Put simply, Java API allows developers to generate software programs across various software platforms by using shorthand rather than inventing new code for every function. 750 F.3d at 1349. In 2005, when licensing negotiations with Sun fell through, Google decided instead to develop its own implementing code and incorporated freely available Java language via 37 API packages. 750 F.3d at 1350-51. These APIs allowed software developers to draw from their familiarity with Java to create applications in the smartphone context.
Sun Microsystems initially embraced Google's use of the 37 API packages in its Android platform. See, Jay Green, “Scoop: Oracle scrubs site of embarrassing Java blog” CNET.com, July 22, 2011 (quoting Sun CEO Jonathan Schwartz's Nov. 5, 2007 blog entry as follows: “Today is an incredible day for the open source community, and a massive endorsement of two of the industry's most prolific free software communities, Java and Linux”).
The celebration of “free software communities” came to an abrupt halt when Oracle purchased Sun in 2010. Oracle sued Google in the Northern District of California that same year, alleging various now-defunct patent claims and one claim for copyright infringement. The patent claims, however, are the reason why the Federal Circuit — rather than the Ninth Circuit — ended up opining on copyright law, 28 U.S.C. §1295(a)(1), an area for which it does not have expertise.
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