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Google software disputes and privacy: one step forward two back.

Posted on May 19, 2014 by Andy Harris  | Tags: copyright API privacy  | 0 Comments

By Andy Harris

It’s been a busy few weeks for Google’s legal team. Within the last fortnight we have seen settlement of Google’s long running patent litigation with Apple, a surprising defeat to Oracle in its API copyright infringement battle, and then the European Union’s Court of Justice decision on the ‘right to be forgotten.’  The first event was obviously something Google were involved in arranging. The second and third are ones they will be working furiously to overturn.

Copyright in an API...worth a try?

Google has been battling with Oracle in the US for years over Oracle’s patent and copyright claims in relation to Google’s Android operating system.  Two years ago a jury found that Google had not infringed Oracle’s patents and the trial judge ruled that there was no copyright infringement either. 

Oracle had accused Google of copying some of its Java computer code when it wrote Android. As Google wanted developers who worked with Java to like Android, it incorporated Java’s application programming interfaces (APIs). This would allow developers to quickly convert their apps to Android and would mean that the millions of programmers who were trained on Java would immediately be familiar with Android.

APIs exist to allow two computer programmes to take to each other. They are the tool which encourages developers to write apps for a company’s products and are normally given away freely. However Oracle claimed that APIs were copyrightable and that Google were in breach of copyright by using them.

The trial judge had ruled that there was no copyright infringement as the specific code used by Google was different. It may have copied the function and methods of the Java API but those elements were not protected by copyright.

A  Federal Court last week disagreed. It held that the “structure, sequence and organization” of an API were protectable by copyright.  The case has now been sent back to the original court to decide if the use of the APIs by Google is allowed under the US ‘fair use’ exemptions.

The decision has come in for a lot of criticism. It also puts the US out of synch with the EU where it was held (in the SAS Institute v World Programming  case in 2012) that the way a computer programme functions is not copyrightable.

Be careful what you wish for...

The ‘right to be forgotten’ decision of the Court of Justice of the EU arose from the complaint from a Spaniard, one Mario Costeja Gonzalez.  Senor Gonzalez had been in financial difficulties 16 years ago and put a property up for auction as a consequence.  This fact was still prominent when an online search was done against his name.  His financial woes being very much a thing of the past, Senor Gonzalez felt that Google and other search engines were continuing to damage his reputation by having this information in their search results.

The Court of Justice agreed with Senor Gonzalez that he has a ‘right to be forgotten’ in relation to online searches.

This is something the EU has been pushing for within its proposed guidelines for improved data privacy laws. What this means in practice is that information would need to be removed from search results (where requested) if the impact on the person’s privacy is greater than the public interest in finding it.  However it is not necessarily the articles containing the information which are to be deleted from the internet, it is simply their inclusion in search results.

Nonetheless this is a potentially huge decision for search engines and how privacy can be protected on the internet. Google may well be facing a flood of similar requests.

 In the meantime there is a certain irony with the position of Senor Gonzalez.  It was quite understandable that he didn’t want his previous impecunious state to be so easily discovered online.  Unfortunately, far from being ‘forgotten’ his name and this fact are now known to far more people than were ever likely to discover it had he not taken this action.

Not forgotten...

Both cases raise far reaching issues and it is unlikely that we have heard the last of either the online ‘right to be forgotten’ or the issue of what copyright, if any, can be claimed in an API.  Google are not the only ones who stand to be significantly affected if the current positions are confirmed. So it won’t just be the Google legal team who are going to be busy...

Andy Harris

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