April 9, 2021
In a 6-2 decision on Monday, April 5th, the Supreme Court held in Google’s favor in Google LLC. v. Oracle America, Inc., the most anticipated copyright decision in recent memory. As we have previously covered, the case called on the Court to determine whether software APIs are copyrightable, and if so, whether Google’s admitted copying of parts of the Java API constituted fair use. In Monday’s decision, the Court sidestepped the question of copyrightability, finding that Google’s actions constituted fair use regardless of whether the Java API was copyrightable. Still, the Court left clues that could deter future parties seeking to enforce copyrights on software APIs.
In finding fair use, the Court looked to the four factors set out in Section 107 of the Copyright Act, which seek to balance copyright holders’ interests with society’s interest in the reproduction and transformation of scientific and artistic content.
The Nature of the Copyrighted Work
Here, the “work” in question was the “declaring code” that determines the organizational hierarchy of methods and tells calling code how to invoke them. In contrast, “implementing code” provides a method’s core functionality and a “method call” is a particular instance of utilizing or “calling” a method. Google did not copy the implementing code, but wrote new implementing code tailored to the Android smartphone platform. Likening declaring code to a filing system, the Court found that declaring code’s organizational nature is “further than are most computer programs (such as implementing code) from the core of copyright,” thus tilting this factor in favor of fair use.
The Purpose and Character of the Use
Google copied the Java API in order to make the Android platform more readily accessible to Java programmers. Because they were already familiar with Java, programmers could write applications for Android without needing to learn an entirely new API. Copying the Java API to Android thus facilitated the creation of new products that were not available on non-mobile platforms. Bringing that ease of creation to a smartphone platform, the Court found, constituted a “transformative” use. The fact that Google’s endeavor was commercial in nature did not weigh sufficiently against a finding of fair use.
The Amount and Substantiality of the Portion Used
The declaring code that Google copied was a very small portion of the Java programming language: about 11,500 lines of code, constituting 0.4 percent of the total when implementing code is included. In addition, in view of the Court’s analysis of the “nature” of declaring code, the copied lines of code were insubstantial in comparison to the implementing code. Google only copied what was needed to achieve the “transformative” purpose of attracting Java developers to the Android platform. Accordingly, this factor also weighed in favor of fair use.
Here, the Court highlighted trial evidence suggesting that Sun (Oracle’s predecessor) was not competing with Google in the smartphone space. “Google’s Android platform was part of a distinct (and more advanced) market than Java software,” the Court found. In fact, Google presented evidence suggesting that bringing the Java API to Android might have benefitted Sun by encouraging even more developers to learn the Java programming language. Meanwhile, foreclosing Google from porting the Java API to Android would amount to “a lock limiting the future creativity of new programs” by developers who had invested the time in learning the Java API. Because the financial harm to Oracle was questionable and giving Oracle the key to the “lock” would harm those developers’ creative abilities, this factor also weighed in favor of fair use.
Prior to Monday’s decision, many in the software industry were concerned that a finding against copyrightability would discourage companies from developing new APIs that could then be copied by competitors. Others feared that a finding for copyrightability would be the death knell for open source projects that replicate commercial APIs. By avoiding the copyrightability question altogether and deciding the case narrowly on the specific facts of the case, the Court seems to have averted either outcome. However, the Court’s analysis of the “nature” of declaring code suggests a very skeptical view of the copyrightability of software APIs generally. This decision will likely give pause to any companies considering litigation against competitors on the basis of copycat APIs alone.
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