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Can you hear us now? - SCOTUS says app developers needn’t reinvent the wheel

August / September 2021 IP Newsletter

After more than a decade of litigation, the U.S. Supreme Court has resolved a dispute between tech giants in a way that has software developers breathing a sigh of relief. The Court held that the copyright doctrine of fair use permits developers to continue to build off of the work of others in many cases without fear of infringement liability — which, in this case, could have meant billions of dollars in damages.

Case developments

Oracle America Inc. holds a copyright in a computer platform that uses the popular Java computer programming language. In 2005, Google LLC acquired Android Inc., with the intention of building a new software platform for mobile devices. To allow the millions of programmers familiar with Java to work with the Android platform, Google copied about 11,500 lines of code from the Java platform.

The copied lines are part of a tool called an application programming interface (API). An API permits programmers to incorporate prewritten computing tasks into their own programs. Google believed that the success of its platform relied on attracting skilled programmers to develop Android-based applications that would in turn attract consumers.

Oracle sued Google. It alleged that Google infringed its copyright by copying the “structure, sequence, and organization” of the Java API into Android. During the protracted litigation, the U.S. Court of Appeals for the Federal Circuit ruled that the copied lines were subject to copyright protection.

A jury subsequently found that Google’s use of the Java lines constituted permissible fair use. The Federal Circuit reversed that finding. The Supreme Court agreed to review the appellate court’s determinations as to both copyrightability and fair use. But, because the Court chose to decide as little as necessary to resolve the case, the Court assumed the lines could be copyrighted and focused on whether the defendant’s use of them was fair use.

A cellular analysis

To determine whether Google’s copying of the API qualified as fair use, the Supreme Court analyzed the four guiding factors outlined in the Copyright Act’s fair use provision:

  1. The purpose and character of the use. This element turns largely on whether the copying was “transformative.” The Court found the defendant’s use of the API was indeed a transformative use. Its purpose was to create a different task-related system for a different computing environment (smartphones) and to create a platform (Android) that would help achieve that objective. In other words, its use was consistent with the basic objective of copyright law — creative progress.
  2. The nature of the copyrighted work. The Court found that the copied lines are inherently bound with uncopyrightable ideas (the organization of the API), as well as the creation of new creative expression (code developed independently by the defendant). Unlike other computer programs, the value of the copied lines is derived primarily from the investment of computer programmers who know the API’s system. Thus, this factor favored fair use.
  3. The amount and substantiality of the portion used compared with the work as a whole. The 11,500 lines used represent only 0.4% of the entire API at issue. The defendant copied them not because of their creativity and beauty, but because they would permit programmers to apply their skills to a new smartphone computing environment. The substantiality factor, the Court said, generally favors fair use where, as here, the amount of copying was tethered to a valid and transformative purpose.
  4. The effect on the potential market for or value of the work. The Court pointed out that Android isn’t a market substitute for Java. Moreover, Java’s copyright holder would benefit from the reimplementation of its interface into a different market. And enforcing copyright in these circumstances would risk causing creativity-related harms to the public. These considerations meant this factor also favored fair use.

A ringing victory

It remains to be seen whether APIs truly are copyrightable. But that fact may prove irrelevant considering the high court’s broad reading of fair use in the API context.

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