Tuesday, May 8, 2012

Rethinking Intellectual Property Protection in a Many-to-Many World

When it comes to the partial verdict in the Oracle vs. Google trial, I am pleased with the jury decisions thus far. This dispute, over whether the reverse engineering of platform APIs amounts to copyright infringement, may prove critical as we seek to reconceive what intellectual property protection means in a world dominated by many-to-many exchanges. Here is where the case is as of today.

  • Oracle has enjoyed a partial verdict. On the first critical issue, whether Google infringed on Java's platform APIs, the jury rules in the affirmative – a resounding victory for Oracle.
  • On the second critical issue, whether the copying of platform APIs can be considered “fair use”, the jury deadlocked – which some feel is a win for Google.

In the past, when vertical one-to-many exchanges were typical, the very nature of efficiency and productivity yielded more centralized authority that was better able to leverage monopoly power in the protection of intellectual property (see this previous blog post for more context). In today’s world of many-to-many exchanges, facilitated through the speed and efficiency of the Internet, power is much more diffuse. When it comes to the protection of intellectual property, the availability of low-cost storage, software for dissembling and removing digital rights protection, and ease of know-how, has rendered traditional barriers to copyright theft less than effective.

In one sense, broadening the definition and applicability of copyright and patent protection is one solution and the partial decision in Oracle vs. Google reflects that approach. Should the judge ultimately find that platform APIs are subject to copyright protection, this decision would allow intellectual property creators to stand on firmer ground when seeking to establish control over the use and distribution of their innovations. In regards to the second key issue – whether the copying of APIs amounts to fair use of intellectual property, the court should stand down for now. Deciding this issue might inevitably tip the scale too far in the favor of either intellectual property creators or those who use or distribute their innovations. The judge in this case would be wise to put the case back in the hands of both parties for a negotiated settlement - under the threat of resolving the remaining issues in an unfavorable way for all parties. Doing so would leave the resolution of this dispute in the hands of free market participants who can best settle their claims through negotiation.

These are critical issues. One thing that has helped Western economies remain the traditional anchors of innovation has been a rich tradition of protecting the rights of intellectual property creators. Absent such protections, the innovative engine powering our economy could be at risk. While the world of many-to-many exchanges is fast eroding traditional notions of power and authority, we would be wise to not let this erosion undermine intellectual property protection. Our economic vibrancy depends on it. 


  1. There is a factual inaccuracy in your report of the verdict. The jury was instructed to assume that APIs are copyrightable, and given that they found that Google had infringed Oracle's copyright. The judge will be deciding the issue of whether APIs are copyrightable himself at a later date. If he determines (as an EU court just did) that APIs are not copyrightable then the jury decisions in that part of the case won't mean anything.

  2. The judge may decide the issue, I don't believe that he is required to do so. Thanks for your post thought I have updated a couple of phrases to be just a bit more precise.