By: Alex Miller

On October 7, 2020, the Supreme Court heard oral arguments for Google v. Oracle to decide 1) whether copyright protection extends to a software interface, and 2) whether Google’s use of Oracle’s Java APIs in Android is a fair use. [1]


At issue here is Google’s copying of Oracle’s Java APIs (application programming interface) when creating Android software. APIs are software interfaces that allow programs to communicate between each other by separating input and output code from processing code. This is important because once programmers learn the interfaces to these programs they can use them without worrying about how the processing code works or changes. Google’s use of Oracle’s APIs allowed programmers who were already familiar with Java to quickly learn how to program for Android because of the copied interfaces.


History of the case:


At the trial court it was determined that 1) Oracle’s API code was copyrightable and 2) the jury found that Google’s copying of the code was a fair use. [2] Then in 2018 the Federal Circuit overturned the fair use finding as a matter of law. [3] For an indepth look at that decision, check out a previous blog post here.

[I’m assuming we can link a previous clinic post on our page]


The argument:


It is conceded that the Android APIs used by Google are copied from Oracle’s Java APIs[4] but they argue they should not be held to be infringing Oracle’s copyright.


Google argued several different points. They emphasized the “merger” doctrine.[5] That is, that the idea of the code and the expression of the idea are so closely related that there is no other way to express the idea. This makes a work uncopyrightable.  In this case the argument is that the APIs are so closely related to the computer processes they invoke, that there is no other way to express them.[6] Google’s separate argument (and the one that won at the trial court) is that they are covered by fair use.[7] In order to get this protection they say that they have substantially transformed the code by moving it from desktop and laptop computers to mobile devices.[8] They even go as far as saying that without fair use Oracle has an essential monopoly similar to a patent right.[9]


Oracle disputes these claims. They say that there can be no merger claim here as there are many ways to express the APIs in code.[10] They point out that Microsoft and Apple both have created their own software for mobile devices and neither have used the same APIs. Oracle claims that just because Google chose not to develop their own APIs, does not mean that they could not have done that when creating Android. They also argue that this cannot be fair use because of the sheer volume of code that Google copied.[11] They also claim that the code was not transformed just by moving it to a new platform.[12] The code serves “the same purpose” in Android as it does in Java.[13]


A less substantive argument, but one that was brought up by multiple justices during oral arguments, is the standard of review used by the Federal Circuit in overturning the jury verdict. If the court finds that the review was in error it could just remand to the Federal Circuit and avoid ruling on the copyright questions all together.


During oral arguments, several justices were unsure how to understand the copyrightability of APIs. They analogized them to a menu at a restaurant or a layout of a keyboard (QWERTY). Justice Breyer seemed concerned that if someone could now claim a copyright on a QWERTY keyboard then everyone would have to relearn how to type.


Why is this important?


Software is everywhere in today’s world and it is only going to increase. If Google loses they  will have to pay licensing fees to Oracle or do a massive rework of the Android system. This is basically impossible at this point because of how established the framework is. More generally, if interfaces are given copyright protection with no fair use to port them to different platforms, developers will have to be sure to license any copyrighted work that they want to use. If this isn’t an option they may have to design around existing interfaces and avoid copyright infringement. This rule ensures that a business that develops a widely adopted set of APIs is compensated for the time and effort in creating a good product.


If the Supreme Court decides that APIs cannot be copyrighted, it is possible that a general set of APIs will be adopted throughout software development. In its brief Google said that the use of familiar APIs allowed developers to “unleash their creativity” on smartphones.[14] Whatever next new technology comes along will benefit from familiar software interfaces so developers can add value instead of learning a new set of APIs for every different platform.


No matter how the court comes out on these questions it will have a big impact on the tech industry and software startups should be aware of any changes in the law that could affect their business.


[1] Google LLC v. Oracle America Inc., Oyez, (last visited Oct. 19, 2020).

[2]Oracle America, Inc. v. Google LLC, 886 F.3d 1179, 1186 (Fed. Cir. 2018)

[3]Id. at 1189-90.

[4]Id. at 1187.

[5]Brief of Petitioner-Appellant at 21, Google LLC v. Oracle America, Inc., No. 18-956.


[7]Id. at 37.

[8]Id. at 42.

[9]Id. at 21.

[10]Brief of Respondent-Appellee at 28, Google LLC v. Oracle America, Inc., No. 18-956.

[11]Id. at 36.

[12]Id. at 40.


[14]Brief of Petitioner-Appellant at 45, Google LLC v. Oracle America, Inc., No. 18-956.