Nine billion dollars. That’s what Oracle wanted from Google for the unauthorized use of 37 Java APIs in Android, which runs most of the world’s smartphones.
Zero. That’s what Oracle has been awarded by a California jury, which decided on May 26, 2016, that Google’s use of the APIs is “fair use” and thus permitted under copyright law.
If your company develops proprietary software and sells or uses it for a profit, how can you prevent a competitor from copying it (or the best parts of it)? If you want to skip ahead, the answer, in the form of 5 tips, is at the end of this short article.
More on Google’s rough ride over Oracle
No infringement. That’s the verdict, based on the jury’s finding that Google’s use of the Java APIs is “fair use.” Oracle will appeal, again, to the U.S. Court of Appeals for the Federal Circuit, which has already held that the APIs are protectable under copyright and that their copying is not de minimis.
Java changed the world when Sun Microsystems released it in 1995. Sun did its best to protect Java with copyrights and patents. In 2010, Oracle acquired Sun and thus Java.
Google’s Android imitates Java, and it interacts more or less seamlessly with Java code through use of the 37 Java application program interfaces (or APIs). The 37 APIs are expressed in 11,000 lines of code, all of which are copied by Google, so far with impunity.
The lawsuit: Oracle sued Google for patent and copyright infringement. In the first trial, the jury found no infringement of the patents. The district court held that copyright did not protect the APIs, but, as noted above, the Federal Circuit held that the APIs are protectable.
Google: The No. 1 user of Java APIs
Google’s argument is that 11,000 lines of code comprise only 0.1% of Android’s 15 million lines of code. It argues that as a competitor of Oracle it needs to be free to use the Java APIs without any obligation to obtain permission from Oracle, that is, without any obligation to pay for use of the APIs.
So far, Google has succeeded in running roughshod over Oracle. Whether the Federal Circuit will give Google a pass remains to be seen.
Which leads us to the question suggested by the title of this article: How can you best protect your proprietary software now?
5 tips to protect your software
Here are 5 ways to protect your proprietary software:
- Patent. The Federal Circuit’s recent opinion in Enfish and the related Patent Office guidance provide rays of hope for patent protection of software.
- Copyright. The Java show isn’t over ’til the Federal Circuit sings, and most of your competitors, unlike Google, will not be willing to write 99.9% new code.
- Trade secrets. If you can keep your code confidential, it may never get to your competitors, and if it does, it may be through an actionable misappropriation.
- License agreement. Under contract law, you may be able to bind your licensees to the terms you set, including the obligation to pay you for the use of your software.
- Carve out your niche. If your program is as big as Java, it will be imitated, and if the imitator has deep pockets, you’re in for a rough time.
In sum, it is still possible for you to protect—and to profit from—your proprietary software. It takes business and legal smarts.