U.S. Supreme Court No Help to Google in API Copying Case

Back in October 2014, the U.S. Supreme Court was asked to take up the appeal for Oracle v. Google (Oracle America, Inc. v. Google Inc.). This case offered the Supreme Court a chance to weigh in on the IP protections afforded software. After receiving the requested input from the Solicitor General, the Supreme Court opted to follow the Solicitor General’s suggestion and denied the writ of certiorari. This leaves standing the Federal Circuit Court’s decision that the “declaring code and the structure, sequence, and organization of the 37 Java API packages” were entitled to copyright protection.

The Solicitor General’s recommendation was premised on several factors included a rejection of a distinction between declaring code and implementing code and an assertion that many of the anti-copyright arguments presented would be better handled as a matter of fair use.

Many of the arguments presented in support of the notion that APIs should not be covered by copyright included an implicit distinction between declaring code and other elements of the software. The Solicitor General’s brief did away with this idea by using a statutory interpretation of ‘computer program’ to include both declaring code and implementing code. The brief goes as far as to state: “Nothing about the declaring code at issue here materially distinguishes it from other computer code”.

The argument for denying copyright for declaring code asserted that declaring code was a functional aspect of the program designed to perform a process and that copyright protections could not extend to cover such aspects. By doing away with the distinction between declaring code and other parts of the program, the Solicitor General’s brief relies on the express intent of the statute to provide copyright protection for computer programs despite their functional aspects. This bolsters the proposition that APIs are copyright eligible as they are simply another piece of the program. Thus, even though the declaring code may have functional aspects it is still entitled to copyright protection like any other computer program or portion thereof.

The Solicitor General’s brief provides some guidance as to further consideration of APIs. The brief notes that arguments directed to interoperability should be directed to a fair use defense rather than attempting to carve an exclusion from copyright protection. However, the discussion notes that in this case the copying was not done so that the Android platform was interoperable with the Java platform or programs. Instead, the copying was done “so that programmers familiar with the Java platform would be able to switch over to the Android platform without having to learn entirely new commands for invoking commonly used methods” which would appear to undermine any fair use claim based on interoperability.

The Supreme Court in refusing the appeal has provided the opportunity for a more suitable case to come before it which may allow the Court to better address the underlying distinctions between copyright and patent protections available to software. While some would have preferred a clear signal from the Court at this time, the lessons learned from the Solicitor General’s brief may provide a potential roadmap as to how to avoid some of the pitfalls from Oracle v. Google. Although Google still has the chance to argue their fair use defenses in the lower courts this case will likely be focused on copyright issues from here on out.