WARSHAVSKY_Oren_CAM_1_2007On July 1, 2015, Law360 queried the Supreme Court decision not to review Google Inc. v. Oracle America Inc. in their Voices on the Bar column.  Oren Warshavsky, head of BakerHostetler’s national Copyright, Content, and Platforms team and one of Law360’s Voices on the Bar commented:

 “In a vacuum, the Federal Circuit’s holding could well disrupt interoperability. APIs are the specifications permitting programs to communicate and operate together across a single or multiple platforms, and thus are critical to, among other things, local networks, mobile computing, cloud computing and the Internet of Things. APIs are openly used throughout the computer industry; developers write programs for one platform and then use APIs to make the application operable across other platforms. The industry trend has been toward universal applications that are “platform agnostic” — the same application is written for a desktop computer, iPhone, Android phone, etc. If all APIs are protected copyrights, and enforced by the copyright owners, the Federal Circuit’s ruling would require developers to rewrite applications for each platform and interoperability certainly would be chilled.

But the Federal Circuit was interpreting Ninth Circuit law, and many predict the Ninth Circuit — and other circuits — will decline to follow this ruling. Moreover, the decision can be limited because it focuses on the creative choices when these APIs were created; other APIs are created differently and many result from an iterative, purely utilitarian (and therefore not creative) process. Finally, the ruling specifically notes that interoperability will be considered in the fair use analysis in this case — which convinced the solicitor general that the Supreme Court should refrain from taking the case. The Federal Circuit’s decision clearly deals a blow to certainty — for now there is no longer a bright line copyrightability test — but its impact on interoperability and innovation may not be felt as significantly as some fear.”

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