Oracle v. Google ruling shows why cloud players may have steered clear of Amazon APIs

A new appeals court ruling, which found that parts of Oracle’s Java API set are entitled to copyright protection, may show why many cloud providers hesitated to support Amazon(s amzn) Web Services APIs from the get-go.

In theory it made sense for them to adopt AWS APIs because AWS was (and is) the market leader in public cloud, offering some degree of compatibility would be helpful for the newcomers. But that assumed that the use of another company’s APIs is not legally problematic.

Well, guess what? The use of another company’s APIs has become problematic since the Federal Circuit Court in Washington, DC found that Oracle(s orcl) could indeed assert copyright over 37 APIs — reversing a lower-court finding that APIs are not subject to copyright since they are an idea, not a creative expression of that idea.

In that case, now in its fourth year, Oracle claimed that Google infringed on various Java copyrights in building its Android smartphone operating system. Google has not said if it will appeal — although that seems likely.

Given the explosion in the use of APIs by anyone and everyone who builds applications and services in this world of connected devices, the appeals court ruling could have big repercussions. Asked for comment, Sam Ramji, VP of strategy at Apigee, an API management company, didn’t mince words:

“Oh, good lord. It is global thermonuclear war. It’s problematic at every level in the software and hardware stack from devices to cloud.”

The prospect of litigation around use of APIs or other code also explains why some vendors — most recently HP with OpenStack — offer indemnification to customers who implement their technology.

Rule #1: Ask first

So back to Amazon. Eucalyptus raised eyebrows two years ago when it added AWS API support to its private cloud infrastructure. Other cloud competitors — Rackspace(s rax) for example — declined to do so — and some including cloud pundit Simon Wardley attributed this reticence to fear of litigation from Amazon.

I assumed Eucalyptus licensed the requisite IP from Amazon for this deal but wasn’t sure so asked about this on Friday. And, Eucalyptus CEO Marten Mickos reponded via email:

“We did not have to get [a] license, but we did get one. We have belts and suspenders. We built the API compatibility in a way that cannot be contested. But we also got a license from Amazon as part of our business partnership.

Best practices and common sense dictate that if Company B wants to use Company A’s APIs, it should talk with Company A first. “It’s always been a legal grey area whether an API that a company publishes is reusable and I would say it just became more dangerous to use someone’s API design without consulting them first,” said Steve Wilmott, CEO of 3Scale, another API management company.

In the Eucalyptus case, Amazon is likely fine with Eucalyptus using its APIs because Eucalyptus helps AWS work better in a hybrid cloud model– which mixes public cloud and private cloud resources for a given company.

However, if Company B uses Company A’s APIs to replicate the service that Company A built its business on, there could be trouble. “Think of Amazon’s APIs as the front door to its store, configured in a certain way — of course Amazon wants people to use that front door. But if by copying that API [a competitor] sets up their front door the same way, Amazon would be upset,” Wilmott said.

So it makes sense for other cloud companies with designs on AWS public cloud leadership to be wary of using AWS APIs — even if AWS has not telegraphed intention to litigate.

APIs as creative content

Joe Emison, CTO of BuildFax, a big AWS user who has been following the Oracle case, said he understands the complainant’s point of view in that many APIs result from big investment. In the case of the AWS API, Amazon spent considerable time and money devising a way to make calls secure and figure out all the parameters and, that, he said, “should get some legal protection against unauthorized copying/redistributing/etc, unless there’s some exception that should allow it.”

The fair use exception to copyright law could also apply in API-land and, indeed, the appeals court ruling means a jury will decide if it does. But, it gets “much more difficult to prove fair use when you’re using something that someone else made to make money for yourself, and it gets even harder if that’s money you’re taking away from the person who made the thing in the first place,” he said.

In other words: Yikes.