The long-running court fight between Google and Oracle over Android's unlicensed use of Java API code is coming to a final battle.  The ultimate appeal will be heard by the U.S. Supreme Court on October 7, 2020, albeit no longer with keen copyright jurist Ruth Bader Ginsburg on the panel.

The importance of the final decision in this case to software developers cannot be understated.  At issue, most broadly, is whether the mere API (Application Programming Interface) of a software package or library is copyrighted or can be copied as a fair use exception to the copyright of the software package. 

Over the course of about the last decade, this dispute has been up and down between the trial and appellate courts. Here's a brief overview of that progression:

  • In the original suit, Oracle alleged that Google had violated both patents and copyrights relating to parts of the Java programming language (which was created at Sun Microsystems prior to its acquisition by Oracle).  At the heart of the matter were 11,500 lines of source code, 37 package APIs, and 170 lines of API declarations that Google admits were copied to create its Android operating system.  On the copyright issue, Google asserted a defense of fair use of the API.
  • At trial, a jury determined that Google had infringed Oracle's Java copyright. (No patent infringement was found.)  On the fair use defense, which the jury was unable to decide, the trial judge determined that copyright law permits developers to code their own implementations of the functionality behind an API and that the API itself is not protected.
  • However, the appellate court disagreed with the trial judge, deciding that an API is protected as an original literary work. Specifically, the Structure Sequence and Organization (SSO) of an API is copyrightable as an original "taxonomy." The case was returned to the trial court on the issue of fair use, which the jury had previously not decided.
  • Back in trial court, the jury determined that Google’s use of the Java API code constituted a fair use.
  • Undeterred, Oracle next appealed the jury’s decision.  The Federal Circuit overturned that decision too, noting that the doctrine of fair use requires the user to transform the work in some way, not just copy it verbatim.  The facts were that some of Oracle's source code had been copied and then used for the same purpose and function as the original.
  • Finally, Google appealed the appellate decision to the Supreme Court.

The U.S. Supreme Court has granted review of two questions, for which arguments will be heard next week.  First, the court will consider whether the Java API is copyright protected. Computer programs have long been protected as “literary works” under the Copyright Act. Google argues though that, under the merger doctrine, the API of Java's libraries cannot be copyrightable because the API can be written and organized in just one way. In other words, the API portion is not a creative endeavor because its expression merges with the underlying ideas. Oracle counters that API coding is a creative endeavor and, had the idea and the manner in which it was written merged (as Google contends), then the copyright would never have been granted in the first place.

Additionally, the court will consider Google's fair use argument that, even if the API is copyright protected, any copying of that was not an infringement. The Federal Circuit had determined that Google essentially "copy-pasted" the Java API’s declaration code and used it for the same purpose on the Android platform without transforming it in any way. Google’s argument is that it was an “efficient infringement” to simply copy the code, instead of recreating it from whole cloth. The argument is noteworthy for its novelty because there is no “efficient infringement” aspect to the fair use defense that allows developers to copy code because it’s convenient; it is currently understood they must transform the copied code.

An Oracle win would mean that the Java API is copyright protected and could lead to chilling effects on software development and reduced interoperability. A Google win, which is supported by industry heavyweights including Microsoft and IBM, could lead to reduced innovation--as creators of software with APIs can expect their work to have weak protection. In either outcome, consumers pay the ultimate price if the cost of purchasing API licenses is passed along to them or they face frustrating walls between systems that otherwise could connect seamlessly.

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