October 6, 2020
On October 7, 2020, the U.S. Supreme Court will hear arguments in Google LLC v. Oracle America, Inc., one of the most anticipated copyright cases in recent memory. At issue: (1) whether software application programming interfaces (APIs) can be copyrighted, and (2) if so, whether Google’s use of Oracle’s Java API qualified as fair use. The Court’s decision could have significant consequences for a wide range of software products that replicate existing APIs.
Sun Microsystems, since acquired by Oracle, first released the Java programming language in 1995. Java is a cross-platform programming language, in that any computing platform with a Java virtual machine (JVM) can run Java applications. Programmers don’t need to know the details of how each JVM operates “under the hood,” because the Java APIs (i.e., the code that third-party applications use to access Java programming libraries) are the same across JVMs.
In the mid-2000s, as Google set out to compete with Apple in the emerging smartphone market, it wanted to make Java applications available on Android smartphones. Google’s efforts to negotiate a license from Oracle for the Java APIs for Android failed, however, so Google skirted the licensing issue by developing its own versions of Java libraries and a virtual machine that could run programs compiled from Java source code.
In 2010, Oracle sued Google for copyright infringement in district court, based on Google’s replication of Java APIs without a license. Oracle also sued Google for patent infringement, over software features found in the Android operating system. The patent case was decided separately in Google’s favor, and the current Supreme Court case deals only with the copyright litigation.
In the initial trial, Google did not dispute that it replicated parts of the Java APIs. Instead, it argued that (1) software APIs are not copyrightable and (2) even if they were, its actions qualified as fair use. The district court decided in Google’s favor, holding that software APIs are not copyrightable. Oracle appealed, and the United States Court of Appeals for the Federal Circuit (CAFC) reversed the district court’s decision, finding that software APIs are copyrightable. Therefore, unless Google’s actions qualified as fair use, it would be liable to Oracle for copyright infringement. The CAFC remanded the case to the district court for a new trial to decide the fair-use issue. At that time, the Supreme Court declined Google’s petition to take up the case.
In the second trial, the jury found that Google’s replication of the Java APIs qualified as fair use. The CAFC again reversed the lower court, however, and remanded the case to the district court – this time to decide how much Google should pay to Oracle in damages for copyright infringement. Google successfully petitioned the Supreme Court to review both CAFC decisions.
What’s at Stake
Many in the software world are watching this case closely. If the Supreme Court holds in Oracle’s favor, software companies that develop new APIs will have some protection against copycat competitors. On the other hand, the software industry is trending toward open source and interoperability. If software APIs are copyrightable, then open source projects that replicate commercial APIs could be forced to shut down. As in many Supreme Court cases, the Court will be asked to consider various competing interests in its decision.
What if the Court Splits 4-4?
The passing of Justice Ginsberg raises the possibility of a 4-4 decision. An even split is not unheard of in the Supreme Court; even with nine justices, it can occur if one justice recuses themselves. One recent example is Costco Wholesale Corp. v. Omega (2010) – another copyright case – in which Justice Kagan recused herself. If there is a 4-4 split and the case is not rescheduled to a later term, then the CAFC rulings will stand in Oracle’s favor.
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