In Google v. Oracle, SCOTUS Holds That Google’s Copying of Java API for Android Platform Constitutes Fair Use Under Copyright Law
On April 5th, 2021, the Supreme Court of the United States reversed the U.S. Court of Appeals for the Federal Circuit, finding that Google’s copying of 11,500 lines of “declaring” code from the Application Programming Interface of Oracle’s Java SE program constituted fair use under copyright law. The case of Google LLC v. Oracle America, Inc. originated from Google’s development of the Android operating system, upon Google’s purchase of Android in 2005. At the time, Java SE was owned by Sun Microsystems, who had developed the Java programming language.
Google entered into negotiations with Sun Microsystems, attempting to work out a licensing agreement via which Google could incorporate Java SE into the Android platform. However, the negotiations fell apart, and Google decided to proceed without a licensing deal, taking 37 Application Programming Interface packages and about 11,500 lines of “declaring” code from Java SE. An Application Programing Interface, or “API”, is a software interface which allows programs to interact with other computer software applications. Unlike “implementing code”, which instructs a computer to execute a particular task, APIs consist of “declaring code”, which arranges and organizes the implementing code, and allows users to access the pre-written implementing code for purposes of executing software functions. Sun Microsystems was acquired by software giant Oracle in 2010. Oracle, whose CEO Larry Ellison called Java the “single most important software asset we have ever acquired”, promptly sued Google in federal court for copyright and patent infringement due to Google’s use of the Java APIs.
After a circuitous journey through the federal court system, the case reached the U.S. Court of Appeals for the Federal Circuit for the second time in 2017. The Federal Circuit found that the code in question was subject to copyright protection and that Google’s use of the code was not fair use. In order to make the fair use determination, the Federal Circuit reviewed Google’s use of the code in the context of the four fair use factors set forth in Section 107 of the Copyright Act:
- the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
- the nature of the copyrighted work;
- the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
Upon analysis of the relevant factors, the Federal Circuit determined that Google’s use of the Java APIs was not fair use. Focusing on whether Google’s use of the APIs was “transformative” in nature, the Federal Court found that Google had simply taken the code wholesale for its own commercial re-use, harming Oracle in the process. Google appealed the decision, filing a petition for writ of certiorari with the Supreme Court of the United States.
SCOTUS took the case and the opinion, authored by Justice Breyer, revisited the four fair use factors from Section 107 of the Copyright Act. First, the Court finds that the “nature of the copyright work” favors a finding of fair use. Here, the Court distinguishes “declaring” code, which merely allows programmers to access prewritten code, from “implementing” code, which actually instructs the computer to perform a task. The Court notes that the copied lines of code are only bound together by the organization of the API, which is uncopyrightable, since ideas themselves cannot be copyrighted; only particular expressions of ideas are eligible for copyright. Second, when reviewing the “purpose and character” of the use of the copied lines of code, the Court finds Google’s use to be “transformative”, as they took the minimum amount of code necessary to build their own unique Android platform. Third, looking at the amount and substantiality of the portion used in relation to the copyrighted work as a whole, the Court finds that the 11,500 lines of copied code amount to only 0.4 percent of the total API. Fourth, and finally, the Court finds that the potential market for Java SE has not been harmed by the Android smartphone platform; in fact, the Court finds that the copyright holder has in fact benefitted from Google’s use of its interface. With a 6-2 majority (Justice Barrett was not yet confirmed at the time), the Court held that Google’s use of the Java APIs constitutes fair use under copyright law.
Notably, the Court did not issue a decision on whether the 11,500 lines of code were copyrightable, assuming for the sake of argument that the API code was subject to copyright protection. This detail of the case is frustrating to some members of the software industry, and Justice Thomas’s dissent offers the opinion that the code itself is copyrightable, and Google’s use of the code is not fair use. The dissent also notes that, as the holding is limited to “declaring” code, as opposed to “implementing” code, the Court has now drawn a legal distinction between “implementing” and “declaring” code for purposes of copyrightability, with the implication being that the former is eligible for copyright protection while the latter is not.
The implications of Google v. Oracle for the software industry are tremendous. Now, software developers can rely on commonly-used APIs with more confidence, and there is no longer open worry about “copyright trolls” buying the rights to old software code with the intent to profit from litigation. Additionally, the decision is a victory for proponents of “interoperability”, or the principle that software products and services should be designed for compatibility, communication, and integration with each other, since such incentives would be stifled by a decision finding that APIs could not be freely used by third parties. Open-source code developers are also pleased with the result, since a decision finding that APIs are subject to copyright protection could prevent the reverse engineering process necessary to develop open source, interoperable alternatives to proprietary software products. On the flip side, some members of the software industry are concerned that the lack of strong copyright protection for code, including APIs, will result in diminished motivation for start-ups to produce innovative software applications, since their efforts could easily be hijacked by larger companies emboldened by Google v. Oracle. Perhaps this aspect of the Court’s decision will inspire a new golden age of trade secret law in the software business.