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Code of Conduct: Oracle v. Google

What is copyrightable code? Google and Oracle are in a battle to answer this question.  The issue is over Google’s use of Oracle’s Application-programming interface (API).  An API is a software-to-software interface that allows different applications to communicate with one another.1 The fact that users can copy text from a Mozilla browser to a Microsoft Word document is made possible because interfaces like API.

In this case, after not reaching a licensing agreement with Oracle in its design of the Android operating system, Google decided to write its own source code and used some of Java APIs—taking 7000 lines of code. As such, Oracle, the copyright holder of Java APIs, sued Google in the Northern District of California, arguing that Google’s use of the Java APIs constituted copyright infringement. Google argued that APIs could not be copyrightable because they are a technique used to perform a task, rather than an actual product itself.2 The district court held that Google’s use of the Java APIs did not infringe Oracle’s copyright because APIs are a command structures equivalent to a system or method under § 102(b) of the Copyright Act, and are therefore outside the scope of copyright protection.3. On appeal, the Federal Circuit reversed and remanded after finding as a matter of law that each of the Oracle programs making up the Java API was sufficiently original and non-trivial, and was infringed upon by Google’s programs implementing the Java API.4

On October 4, 2014, Google appealed to the Supreme Court5,  arguing that the Federal Circuit misapplied Lotus6., a similar case where the Supreme court, by a 4-4 split, affirmed by default that a Graphic User Interface (another type of interfacing program), were purely mechanical in nature—a “method of operation,” or process that makes a program work without going through a series of complex steps– and was not entitled to copyright protection.7

While the Federal Circuit’s logic in ruling that APIs are entitled to copyright protection is correct, Google should still prevail on fair use.  To reduce 7000 lines of code to a “method of operation,” as Google wants, will only obscure instead of define what a “method of operation” is when it comes to programing code. What about 10,000 lines, or 20,000 lines, or 50,000 lines?  However, Google should prevail on fair use grounds, despite not getting permission to use Oracle’s code.8. Technology entrepreneurs would have no recourse but to go to Oracle to get a license each time they develop an application or program that needs a Java interface. “Much of modern technology has been built around the idea that APIs, which allow programs to communicate across platforms, are openly available. An Oracle victory may set a precedent that opens the door to other lawsuits.”9. Giving Java’s APIs copyright protection will bar all programmers who create links between websites, applications, software from doing so.10 Oracle will serve as a gatekeeper for many programs and applications that use Java. Such a situation will give an already entrenched market players more clout and stifle creativity11, contrary to the intent of copyright law.

While some have consider the defense of fair use as it relates to copyright infringement in claims regarding APIs12, there seems to be no one advocating that some APIs should not have copyright protection under fair use, and more specifically, none have thoroughly applied the fair use doctrine to Google and Oracle’s case. Allowing Google to prevail on fair use affords exactly the amount of copyright protection necessary at this time, while maintaining flexibility in the likely event of future changes.13


  1. Dave Ross, How to Leverage an API for Conferencing, HOWSTUFFWORKS.COM, http://money.howstuffworks.com/business-communications/how-to-leverage-an-api-for-conferencing1.htm (last visited November 1, 2014 10:04 P.M.); see L. J. Kutten; Frederic M. Wilf, Computer Software Protection-Liability-Law-Forms § 9:79 (2014) (“APIs are essentially programming libraries that software developers use to write the functional source code of computer programs. Instead of ‘reinventing the wheel’ and writing every line of source code from scratch, APIs are pre-written ensembles of code that perform certain discrete tasks, such as copying or printing.”). 

  2. See Chris Preimesberger , Java APIs Copyrightable, Court Rules in Oracle vs. Google, EWEEK.COM (May 9, 2014), http://www.eweek.com/news/java-apis-copyrightable-court-rules-in-oracle-v.-google.html. 

  3. Oracle America Inc. v. Google Inc., No. 10-3561, 2012 WL 1964523 (N.D. Cal. May 31, 2012). 

  4. Oracle America, Inc. v. Google Inc., 750 F.3d 1339 (Fed. Cir. 2014). 

  5. Brief for Appellant-Petitioner at 1, Oracle America, Inc. v. Google Inc., No 14-­­­-____, (Fed. Cir. 2014). 

  6. Lotus Development Corp. v. Borland International, 516 U.S. 233 (1996). 

  7. 17 U.S. Code § 102(b); Dr. D’vorah Graeser, Api and the Limits of Copyright Protection for Software, 19 Westlaw Journal Intellectual Property 11 (2012). 

  8. Maxtone-Graham v. Burtchaell, 803 F.2d 1253 (2d Cir. 1986) (Allegedly infringing author’s decision to publish copyrighted material despite copyrighted author’s denial of permission did not deserve characterization of bad faith, for purpose of determining whether to uphold fair use defense.).).  Fair use is an equitable rule of reason, involving the balancing of exclusive right of copyright holder with public’s interest in dissemination of information. Because of the proliferation of APIs, public policy calls that while APIs can be given copyright protection since they are original and creative, others should be able to use Java’s APIs or else competition will be stifled. ((Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 (9th Cir. 1992), as amended (Jan. 6, 1993) (Public benefit resulting from particular use of copyrighted work for finding of fair use need not be direct or tangible, but may arise because challenged use serves a public interest; Attempt to monopolize the market by making it impossible for others to compete runs contrary to the statutory purpose of promoting creative expression contained within the Copyright Act and cannot constitute strong equitable basis for resisting invocation of fair use doctrine.). 

  9. Colin Lecher, The Oracle v. Google case may go to the Supreme Court, THE VERGE (Oct 9, 2014), http://www.theverge.com/2014/10/9/6953215/oracle-v-google-case-supreme-court-hearing/in/2731667. 

  10. Robinson v. Random House, Inc., 877 F. Supp. 830, 834 (S.D.N.Y. 1995) modified, (S.D.N.Y. Mar. 26, 1995) (“Fair use” doctrine provides affirmative defense to claims of copyright infringement and recognizes that there are circumstances in which Copyright Act’s goals of encouraging creative and original work are better served by allowing use of copyrighted work than prohibiting such use.). 

  11. Iowa State Univ. Research Found., Inc. v. Am. Broad. Companies, Inc., 621 F.2d 57, 60 (2d Cir. 1980) (The doctrine of fair use, originally created and articulated in case law, permits courts to avoid rigid application of the copyright statute when on occasion, such application would stifle the very creativity which copyright law is designed to foster.). 

  12. Efthimios Parasidis, A Sum Greater Than Its Parts?: Copyright Protection for Application Program Interfaces, 14 Tex. Intell. Prop. L.J. 59, 60 (2005). 

  13. Jonathan Ambrose, Oracle America, Inc. v. Google, Inc.: The Only Nonliteral Aspects of Java APIs Protected Under Copyright Law Are the Ones Nobody Wants to Copy, 14 N.C.J.L. & Tech. On. 1 (2012). 

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Samuel Edandison

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