Google v Oracle: court avoids software protection question

After more than a decade of litigation regarding copyright in application programming interfaces (API), the US Supreme Court, in a 6-2 decision, decided what many believe is one of the most important copyright lawsuits in recent memory.

The court was facing two issues: (1) are APIs copyrightable subject matter, and (2) if so, did Google infringe Oracle’s copyright in its API when if copied portions of the declaring code.

Overturning the lower court’s ruling, the majority avoided answering the first and issued a narrow ruling that held that Google had made a fair use of a small portion of Oracle's code (versus copying of to create a new product that was “consistent with that creative 'progress' that is the basic constitutional objective of copyright itself”.

The Supreme Court‘s decision is significant for a couple of reasons. First, it leaves open the question of whether software code directed to methods of operation for computers is entitled to copyright protection in the first place.

While Google wrote its own APIs when it created its Android system, it copied a small part of Oracle's API code, the declaring code, so that programmers fluent in Java could more easily use the new system Google created.

Google argued that declaring code is just a functional system of basic computer commands that cannot be copyrighted. Oracle argued that software code has been recognised as copyrightable for years and allowing Google’s copying would upend the law. By ruing that Google made a fair use of the declaring code, the Supreme Court left open this question for another day.

Second, the Supreme Court’s fair use analysis brings heightened attention to the function use factor. Historically, courts have given little weight to the “nature” of the work when analysing the fair use factors.

However, the Supreme Court’s fair use analysis gives the most weight to this factor. As a result, courts and litigants in future software cases will pay special attention to the nature of the copied software at issue and its functional use.

In cases like this, where the software at issue is bound together with uncopyrightable ideas (eg, the idea of organising tasks into cabinets, drawers, and files), analysis of this functional use factor will likely be highly decisive of a fair use determination.