US Supreme Court Holds that Copying Application Programming Interface (API) is Fair Use

The US Supreme Court has held that Google’s copying of an application programming interface
(“API”) was fair use under copyright law.

The case involved Java SE, a computer program in the Java programming language. Oracle owns the copyright for the program.

Google uses aspects of Java in its Android operating system, which runs on most of the world’s smartphones.

Lower courts had reached conflicting decisions about whether Google was infringing Oracle’s copyright. The Supreme Court set out to answer two questions:

• Were the 11,000 lines of code copied by Google copyrightable?
• If they were, was Google allowed to copy them under the “fair use” exception to copyright protection?

The Court ended up only answering the second question, simply assuming that the code could be subject to copyright protection. Justices Clarence Thomas and Samuel A. Alito Jr. criticized the majority for simply skipping over the first step. Justice Thomas wrote in a dissent that he could have ruled that the code was protected by copyright law.

(It’s well-established under copyright law that most software – like any other work of authorship fixed in a tangible medium of expression -- can be copyrighted.)

As the Court explained,

To determine whether Google’s limited copying of the API here constitutes fair use, the Court examines the four guiding factors set forth in the Copyright Act’s fair use provision: 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 upon the potential market for or value of the copyrighted work.

The Court noted that

The inquiry into the “the purpose and character” of the use turns in large measure on whether the copying at issue was “transformative,” i.e., whether it “adds something new, with a further purpose or different character.”

As we discussed in this recent blog, what’s “transformative” under copyright law is a tricky philosophical question on which courts can differ.

The Supreme Court found that Google’s use of the code was in fact transformative:

As part of an interface, the copied lines are inherently bound together with uncopyrightable ideas (the overall organization of the API) and the creation of new creative expression (the code independently written by Google).

Google’s use of the Oracle code “offers programmers a highly creative and innovative tool for a smartphone environment,” Justice Breyer wrote in his majority opinion.

As for the “amount and substantiality of the portion used,” 11,000 lines of software code may seem like a lot, but this was only .4% of the 2.86 million total lines of Oracle code. Thus, this factor also weighed in favor of Google.

The “effect of the use upon the potential market” was a point for Google, because “Google’s new smartphone platform is not a market substitute for Java SE.”

Thus, the Court concluded:

Applying the principles of the Court’s precedents and Congress’ codification of the fair use doctrine to the distinct copyrighted work here, the Court concludes that Google’s copying of the API to reimplement a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, constituted a fair use of that material as a matter of law.

The full case can be found here.