The Supreme Court’s refusal to review the Federal Circuit’s dangerous decision in Oracle v. Google means that court’s decision will stand for now. EFF, along with leading computer scientists and copyright practitioners, thinks the Federal Circuit got it wrong: the legal precedents that the Federal Circuit refused to follow, as well as the realities of software development, argue against treating application programming interfaces (APIs) as copyrightable. And while the case isn’t over, we’re worried that litigious, well-heeled software companies will begin to threaten innovative developers with lawsuits, or demand license fees, when they create interoperable software by using or re-implementing an API. EFF is interested in hearing from software developers or companies that have received these kinds of threats or demands in the wake of Oracle v. Google.

The Federal Circuit’s decision came as a shock to many in the software community. The free and open use of APIs has been both routine and essential in the computer industry since its beginning, and that use was based on the sensible assumption that APIs and other interfaces could not be copyrighted. Aside from the Oracle decision, the federal courts have uniformly upheld that pro-innovation interpretation of copyright law, ruling that copyright doesn’t cover functional elements of software.1 The European Court of Justice has reached the same conclusions. The Court of Appeals for the Ninth Circuit, which hears appeals from the West Coast states where many software companies are located, ruled that the “functional requirements for compatibility” between computer programs “are not protected by copyright.”2 APIs are, of course, functional requirements for compatibility with existing software.

The Federal Circuit hears appeals in certain cases where the complaint includes a patent claim, as Oracle v. Google did, and on non-patent legal issues it’s supposed to follow the precedents of the circuit court in the geographic region where the case arose—in this case, the Ninth. But the Federal Circuit’s decision in Oracle disregarded the Ninth Circuit’s reasoning, essentially rejecting it outright.

While EFF is worried about software developers, coding projects, and small software companies receiving legal threats based on the Oracle decision, we’re looking into how these innovators can push back, and we could use your input. If you’re a software developer, project leader, or business who’s received a threat or demand based on your use or re-implementation of an API, or if you were pressured to take a license to use an API because of Oracle v. Google, email us at info@eff.org.

• 1. E.g., Lotus Dev. Corp. v. Borland Int’l, Inc., 49 F.3d 807, 815 (1st Cir. 1995), affirmed by an equally divided Court, 516 U.S. 233 (1996); Computer Associates Intern., Inc. v. Altai, Inc., 982 F. 2d 693 (2d Cir. 1992).
• 2. Sega Enters., Ltd., v. Accolade, Inc., 977 F.2d 1510, 1522 (9th Cir. 1992); see also Sony Computer Ent’mt, Inc. v. Connectix Corp., F.3d 596, 599–600 (9th Cir. 2000).