Oracle Corp.’s latest victory in its eight-year-old copyright infringement lawsuit against Google LLC could fundamentally rewrite the rules of software development if today’s ruling withstands a possible appeal by the search giant.

The U.S. Court of Appeals for the Federal Circuit earlier today said Google’s use of portions of Oracle’s Java development platform to create the Android operating system isn’t protected by the fair-use provision of copyright law. The ruling reverses a 2016 jury verdict that had found that Google’s actions were covered under the fair use provisions of the copyright code, which permit unlicensed use of copyrighted material in certain situations.

Mark Schonfeld of Burns & Levinson in Boston called the decision “momentous…. I think it’s going to go to the Supreme Court because the Federal Circuit has made a very controversial decision,” he told Bloomberg.

The verdict could have a huge dampening effect on the use of application programming interfaces, which has exploded in recent years as software development has moved to the cloud. It may also stoke even greater interest in open-source software, which must be freely licensed even if the developer retains the copyright. However, open-source advocates have largely sided with Google in the case, saying anything that imposes restrictions on code reuse undermines the fundamental value of open source and free software.

Oracle claims that Google’s use of Java to build the wildly successful Android mobile operating system “irreversibly destroyed Java’s fundamental value proposition as a potential mobile device operating system.” Oracle General Counsel Dorian Daley said in a statement that the Federal Circuit court’s opinion, “protects creators and consumers from the unlawful abuse of their rights.”

Google spokesman Patrick Lenihan countered that the ruling will “make apps and online services more expensive for users.”

The API conundrum

The case centers on Google’s use of application programming interfaces, which are gateways that enable developers to tap into other software programs so they don’t have to recreate the same functionality from the ground up. APIs have been credited with dramatically speeding up the software development process and fueling the popularity of software as a service. ProgrammableWeb lists more than 19,000 APIs in its directory, up from just 300 a decade ago. It lists about 40 new entrants per week.

The APIs in Google’s implantation of Android are functionally identical to those in Java, although they go by different names. The question is whether duplicating the function constitutes copyright infringement.

Oracle, which bought the rights to Java with its 2010 acquisition of Sun Microsystems Inc., has said its APIs may be freely used to build applications, but not to create competing platforms like Android.  Google has said that Oracle is simply jealous of Android’s success and that Google used only a small amount of Java code in Android.

The case has seesawed back and forth for years, with Google initially winning a judgment in 2012 by a federal judge who found that API code couldn’t be copyrighted. That judge’s decision was later overturned by a federal appeals court, which remanded the case back to the original judge, who again found in Google’s favor. In 2014, Oracle successfully had his decision overturned by the Ninth Circuit court.

The case now goes back to a U.S. judge in San Francisco where a jury trial is to determine how much Google’s Alphabet Inc. parent must pay Oracle damages. Oracle has asked for $8.8 billion. Google said it’s weighing its options, which may include an appeal to the U.S. Supreme Court, which earlier rejected the case.

The biggest fallout from the case would be if developers could copyright APIs and charge licensing fees for others to use them, or file copyright infringement suits whenever their APIs were accessed. “Either scenario could negatively impact the value developers offer and the roles they play in their organizations,” said Charles King, president and principal analyst at Pund-IT Inc.

Open-source dividend?

The decision could also stoke further interest in open-source software “by driving future platform decisions toward ‘truly open’ alternatives,” said Eric Bloom, a former chief information officer and executive director of the IT Management and Leadership Institute. The ruling also “has the real potential to move future software development away from Java toward other development languages,” he said.

King agreed. “I expect the ruling will help accelerate the steady growth of interest in open source,” he said. “If Google is ordered to pay a significant settlement by the jury trial ordered by the Federal Circuit, that steady growth could turn into a torrent.”

But that isn’t going to make the decision popular with open-source advocates, who fear that the ruling will give programmers additional incentive to copyright their creations rather than giving them back to the community. Mozilla Corp., which developed the open-source Firefox browser, filed an amicus brief on Google’s behalf, arguing that without the ability to use APIs freely, “open source programs lose much of their value as creative and competitive alternatives to proprietary – or ‘closed source ‘– programs.”

The possibility that APIs could be covered by copyright would have a chilling effect on the entire software development industry, advocates say. “The final issue in this case — whether or not the use of the APIs are a fair use — is a last-ditch effort to save a common industry practice: writing independent implementations of an existing API,” Sarah Jeong wrote in a Motherboard post just before the ruling was handed down.

Techdirt editor Mike Masnick was even more blunt in his post summing up the impact of the ruling: “The Court of Appeals for the Federal Circuit has spent decades f***ing up patent law, and now they’re doing their damndest to f*** up copyright law as well,” he wrote.

Image: Oracle