DPP's Blog

Oracle v. Google granted Certiorari November 16, 2019

On Friday, November 15th, the Supreme Court of the United States agreed to hear the appeal of the Oracle v. Google case.

tl;dr

APIs are to software development as precedent is to litigation.

APIs provide the abstraction the software engineers needs to understand in order to interface with or implement a functioning system.

Precedent provides the abstraction that allows litigators to convey the meaning of a common law ruling such that the litigators can assemble an argument in a given case.

From the dawn of computing until the May, 2014 ruling in Oracle v. Google, APIs were the "idea" in the idea/expression dichotomy from Baker.

Imagine if, after 95% of the time that common law was a thing, courts required royalty payments to prevailing lawyers when those lawyers' cases were cited as precedent. What would this look like?

  • The large law firms would be in a windfall position…​ just like Oracle is arguing it should be.

  • The practice of law would be skewed to avoiding precedent and making up new stuff in order to avoid paying royalties.

  • Law schools would change the way they teach: threading precedents from days of yore to the modern day…​ and instead teach lawyers how to make "new, whole cloth" arguments.

The effect of Oracle v. Google will decimate the software profession just as a tectonic shift in the price of precedent would destroy the legal profession.

But, let me chat a little about why copyrighting APIs is such a deeply horrible thing to do…​ well a bit of a side discussion first.

Professional Disagreements

The folks representing Oracle include one of the smartest, most passionate, and generally awesome people I’ve ever had the pleasure to know.

I am all for zealous advocacy. And I do not really care if Google pays Oracle or not…​ basically both companies are evil. Oracle is more of the Snidely Whiplash brand of evil. Where are Google is more the Brett Kavanaugh brand of evil.

So, as folks representing Oracle read this post, please understand that I’m disagreeing with your position, despite my deep regard and respect.

Some of my writings on the subject

I have written a fair number of posts on the subject:

Also, these tweet streams cover the business and social impact of OvG:

So, yes, on Twitter, Oracle’s lawyers are arguing "nothing bad has happened, yet…​ so nothing bad isn’t going to happen."

Sorry…​ but it’s going to take a decade for the change to play out. And keep in mind, this case has been bouncing around the courts for nearly a decade…​ it will take that long for lawyers to figure out how to harness the toxicity of the change in law.

I did some further writing on the topic:

Up to date thinking

The above tweet streams were written 18 months ago.

Yes, none of the doomsday stuff has manifest. And yes, Cisco failed with a similar claim…​ although Cisco’s claim seems a lot more like Lotus v. Borland.[1]

But, the Redmonk folks seem to understand the import:

So…​ what do we do?

Well…​ to be very blunt, the non-Oracle lawyers I’ve discussed this issue with are someplace between focusing on the tactical issue and being complete idiots (the EFF lawyers…​).

I am a lawyer. I have briefly practiced, mostly in intellectual property-related areas (not litigation, but transactional stuff) as well as doing the civil defense of Eugene Kashpureff in the AlterNIC DNS hijacking case.

I have also been writing software professionally since 1978.

And the way intellectual property is dealt with/allocated in the law was a dinner-time conversation for well over a decade.

I am a rare lawyer who does APIs for a living.

Sadly, over the last 5 years, none of the geeks could speak lawyer and none of the lawyers (with the exception of the a few of the folks on Oracle’s team) could speak geek.

So, we wind up with stipulations that the JVM byte-code meta data that describes the APIs is executable and stuff like that.

We also wind up with what appears to be a reasonable to lawyers allocation of revenue to work that was done by Sun on Java…​ yep Sun worked on the APIs and getting good APIs is not easy (hi Ted and Hari).

Yes, maybe Google does own Oracle $. Once again, it’s a Snidely vs. Brett issue…​ there’s evilness on both sides.

But, the long term damage of creating more entrenchment for existing players, diminishing labor mobility, and radically reducing the ability for systems to interoperate is, in my opinion, creating a hellscape for future engineers and future startups. A hellscape that will entrench the existing owners of IP like Google and Oracle and IBM and Facebook and Apple and Amazon at the expense of all other players. It’s a conservative’s wet dream…​ keep the wealth concentrated where it is.

The right analogy

Let’s look at Jones for a minute. If the issue is brought to the Supremes as something that they understand, viscerally, they are far more likely to make the right decision.

Unlike Judge Alsup it’s unlikely that the Supreme Court justices will learn to code for this case. So, let’s bring the right analogy to the court.

The right analogy is APIs are to coding as precedent is to litigation. This is something that the Supreme Court Justices will understand. It’s something that will help them understand that the software industry, just like the legal profession, is built in increments…​ each of us standing on the shoulders of those that came before.

It’s critical that both be freely shareable.

Both represent shareable abstractions over a more complex underlying system.

Both represent the ways that practitioners learn and share and evolve.

If I can be of service

If folks who are battling API copyright want to engage with me, y’all know where to find me.

Let’s fix the issue. Let’s get software engineering back to what it used to be…​ what it should be.

1. I am a Cisco employee. My blog does not represent Cisco policy. These views are my own. I also had no knowledge of the Arista case until the ruling was pointed out to me.