Supreme Court Ends Crucial Software Copyright Fight

The U.S. Supreme Court ended a litigation war tagged the “copyright lawsuit of the decade” last week, giving tech giant Google a win against a claim that it committed a breach by copying lines from an application programming interface. The 6-2 decision clarifies that the widespread practice in the technology industry of using limited amounts of API code to develop new products is not likely to be deemed unlawful.


An API is an array of rules that determine how computers or software programs communicate with each other and is instrumental in processing the transfer of data from a server to a software program. They function, in effect, as building blocks for computer programs.

Justice Steven Breyer’s majority opinion avoided answering whether API code is copyrightable but instead focused on whether Google’s use of it was a “fair use.” Breyer found that it was, concluding that duplication of needed API code facilitates innovation. “Here Google’s use of the Sun Java API seeks to create new products,” wrote the appointee of President Bill Clinton.

The Supreme Court’s ruling is seen as an important protector of industry practice that drives interoperability, or the capacity of computers and the software that runs on them to exchange information. “This is going to affect all kinds of cloud services and all kinds of high-tech products,” said James Grimmelmann, a professor of digital and information law at Cornell Law School and Cornell Tech. “This provides a lot more clarity for tens of billions of dollars’ worth of software that people are building.”

Software developers heavily depend on APIs provided by large tech companies to create software for those platforms, he said. “There are so many important products that use APIs now — the APIs in Mac OS or the APIs in Amazon Web Services or the Stripe APIs for payments,” Grimmelmann said. “The case continues the practice of building an ecosystem of products linked together by APIs.”

Jonathan Band, a copyright law expert in Washington, D.C., and an adjunct professor at Georgetown University Law Center who has authored three books exploring questions of copyright and competition in the software industry, said the decision also sets a bulwark against further monopolization in the technology sector. “If it had gone the other way, it would have meant that the established firms would have been in a much better position to set the terms for competition and really would have been able to lock in both programmers and users into their programming environments,” he said. “It definitely would have led to even more consolidation in technology industries.”

The genesis of the long court fight occurred in 2005, when Google purchased Android, Inc., a then-tiny software company first focused on building operating systems for digital cameras and then for mobile devices. Google continued the focus on constructing a platform that would allow for the use of numerous software programs on a smartphone and determined that the Java platform, which was familiar to many developers, would be a practical choice because it facilitated interoperability. Sun had pushed this advantage in its marketing, including through the “write once, run anywhere” slogan.

Google sought to license the Java system from Sun, but negotiations failed after Sun insisted that all programs running on the Android smartphone operating system be interoperable with one another. Instead, Google set out to build its own platform and included about 11,500 lines of Java API code, less than .5% of all the code in the Java API library.

“This pattern of reimplementing interfaces, which is sort of what happened here, has been done throughout the course of the history of the computer industry,” Band said. “In fact, Sun reimplemented existing interfaces when it developed Java.”

Oracle, which had acquired Sun by then, sued in 2010, alleging Google had violated both its copyright and a patent on the Java API. The patent infringement claim was rejected by a jury; U.S. District Judge William Alsup then found that API is not copyrightable. The U.S. Federal Circuit Court of Appeals disagreed, holding that the code was protected by the copyright law, and sent the case back to Alsup to determine whether a fair use had occurred. The district judge ruled, after a second trial, that it had, but the Washington, D.C.-based specialty appellate court, which addresses some kinds of intellectual property cases, again went the other way and found no fair use. That is the ruling reversed by the Supreme Court in its April 5 decision.

Grimmelmann said the fair use question is important because it clarifies that users, by investing effort in the implementation of an API, can legitimately use a copyrighted work. “I think this is very important, not just for software developers, but for things like fandom and fan art,” he said. “This also will have effects on things like billing codes and can you get a copyright on a coding system. The answer is going to be, you can probably get a copyright, but it will be fair use for people to use the code system.”

Fair use is a right specified by the nation’s copyright act but can be established only if a court decides that four considerations support it. Those considerations — the purpose and character of the use, 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 on the potential market for or value of the copyrighted work — were each addressed in Breyer’s opinion. He concluded that each weighed in favor of Google’s use of the small amount of Sun Java API code that had been copied.

Citing precedent dictating that the fair use right is “flexible” and that a court has to decide how and whether to invoke it “in light of the sometimes-conflicting aims of copyright law,” Breyer emphasized that the “context” of the case supported Google’s view. “We reach the conclusion that in this case, where Google reimplemented a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, Google’s copying of the Sun Java API was a fair use of that material as a matter of law.”

Google had also argued that the API code it had copied was not covered by the copyright law at all. The company compared the code to an “idea,” or at least a “merger of idea and expression,” which would not be protectible, Band said. Breyer declined the opportunity to address the argument. “Given the rapidly changing technological, economic, and business-related circumstances, we believe we should not answer more than is necessary to resolve the parties’ dispute,” he wrote. “We shall assume, but purely for argument’s sake, that the entire Sun Java API falls within the definition of that which can be copyrighted.”

That conclusion was criticized by dissenting justices Clarence Thomas and Samuel Alito, who also thought that Google had no fair use right to the Sun Java API code. Justice Amy Barrett did not participate in the decision.

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