Copying an API can be protected by fair use. GOOGLE V. ORACLE

Copyright law and software are like oil and water. If you shake them up, they will mix for a while, but over time they will separate. The fundamental problem is software runs on computers, computers are functional objects, copyright law specifically excludes functional things from copyright protection, except for software.

In 1980, the United States Congress added the definition of computer program to the list of works protected by copyright in 17 U.S.C. § 101. Computer programs are treated like a literary work for copyright purposes in the United States. A computer program is granted copyright protection in a similar ways as books and other written material.

Reproducing a copyrighted computer program without authorization of the copyright owner can be considered copyright infringement. However, computer software is typically intended to interact with other pieces of computer software written by other programmers. Communication between different pieces of computer software is typically accomplished through an Application Programming Interface (API). Different functions in an API are given unique names and rewriting a piece of software because the API names have changed can be burdensome.

The question then becomes, is it copyright infringement to reproduce the API function names of one piece of software in another piece of software?

In the case GOOGLE LLC v. ORACLE AMERICA, INC., 18–956 (U.S.S.C. 2021) the United States Supreme Court held that in certain circumstances the copying of an API can be considered a fair use.

Oracle owns a copyright in Java SE, a computer platform that uses the popular Java computer programming language. In 2005, Google acquired Android and sought to build a new software platform for mobile devices. To allow the millions of programmers familiar with the Java programming language to work with its new Android platform, Google copied roughly 11,500 lines of code from the Java SE program. The copied lines are part of a tool called an Application Programming Interface (API).

After years of protracted litigation and appeals, the case finally reached the Supreme Court. To determine whether Google’s limited copying of the API constituted fair use, the Court examined 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 found that the the purpose and character of Google’s use favored a finding of fair use. Google’s purpose was to create a different task-related system for a different computing environment. Only what was needed to give programmers familiar tools to work in a different computing environment was copied. Because of these findings, the court found the limited copying of the API was a transformative use.

The nature of the work was found to favor fair use. The copied lines of code are part of a “user interface” that provides a way for programmers to access prewritten computer code through the use of simple commands. The lines of code copied by Google are inherently bound together with uncopyrightable ideas.

The amount and substantiality of the portion used was found to favor fair use because only 11,500 lines of code from 2.86 million total lines. The copied code was not creative, it was linked to the functions programmers used to make other programs.

Finally, the effect upon the market for or value of the copyrighted work, was found to favor fair use because Google’s Android was not a substitute for Java SE. Also the Supreme Court noted that while the copyright holder would benefit from having their API licensed on a new platform, enforcing that copyright would harm the public.

Weighting all the fair use factors together the Supreme Court held that Google’s copying of the Java SE API, which included only those lines of code that were needed to allow programmers to put their accrued talents to work in a new and transformative program, was a fair use of that material as a matter of law.

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