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Tianchu��Gao is an��IPilogue��Writer and a 1L JD Candidate at��Osgoode��Hall Law School.��

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The decade-long dispute between Google and Oracle over computer code’s copyrightability finally came to an end on April 5, 2021. It started out in 2010 when Oracle sued Google for copying the ��of��Java, a programming language developed and licensed by Sun Microsystems��and��later��acquired by Oracle, in��Google’s��development of��the����operating system. The fight between the two tech giants, with��billions of��dollars at stake,��attracted��significant����and��.��Many��academics, businesses,��and computer professionals����for��Google before the case was heard at the��U.S.��Supreme Court��on��October 7, 2020.��The����bears great weight in shaping the development of the IT industry and��U.S.��copyright law. It is arguably, as Stanford law professor Mark Lemley coined it, “”����

The case��meandered��through��constant reversals of judicial judgements.��It is composed of two phases centering on two legal issues that were trialed separately—the��copyrightability of APIs��and��the��.��In the first phase, the�� that Oracle’s APIs functioned somewhat like a “system or method of operation” which could be implemented in various ways and, on the facts of the case, Google’s use of them was permitted under the��Copyright Act.��The����and claimed that��“the overall��structure of Oracle's API packages is creative, original, and��‘resembles a taxonomy’.”��It also��ordered��a second��trial��to determine��whether Google’s use of Java��API��was��acceptable under the fair use��doctrine. In��the��, the jury voted��in��favour��of��non-infringement��on the ground that��Google’s use��was��fair.��Oracle appealed successfully. The�� that Google’s use of Java API is a non-transformative use, with transformativeness being a requirement for finding fair use, and that it has profited commercially from Android. As expected, Google was unhappy with the outcome and appealed again. ��

Finally, with the support of��s from the Solicitor General of the United States and numerous other professionals,��the Supreme Court��made a�� that is more in tune with the context of programming and the IT industry. The majority opinion held that, although API is copyrightable, Google’s use of Java API is within the bounds of fair use. It highlighted the distinction between declaring code and implementing code—the former proposes a hypothetical function that serves a particular objective, and the latter is the actual realization of that hypothesis. According to the Supreme Court, Java API is essentially a set of declaring code that resolves general task division and organization. It enables programmers to “ The very creativity that contributes to technological breakthroughs lies in implementation rather than merely declaring code. It is in Google’s interest to use Java APIs, rather than developing its own, because programmers have already invested time and effort to learn them. Google wanted to attract as many programmers as possible to develop smartphone apps on Android, thereby furthering copyright’s creativity objectives. In addition, Breyer J. ruled that Google’s use is “minimal,” about 0.4 percent of the total Java source code, and it does not diminish Java’s marketability since Android is used in different platforms (i.e., smartphones).����

While��some��are����about the chilling effect��that��the decision��may have on programming innovations,��professionals have�� it. It accords with the�� that programmers rely on to pursue innovations. It also marks an important accommodation made in copyright law to face the new challenges posed by the booming IT industry.����

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a) What are APIs?

APIs are prewritten combinations of , method calls and codes having different functionality tools which programmers use for their software as a prerequisite template to invoke certain common regular functionalities and further advances on their innovation software. Programmers can use APIs to save their time and energy in formulating codes for each function as, per the need of the program, from scratch. .

b) Are APIs protected under US Copyright Law?

Prior to Oracle’s copyright infringement claim, no one claimed monopoly over APIs. When Google used 37 API calls similar to Oracle’s Java SE computer program and copied 11,500 lines of code from it (which made up only 0.4 percent of the entire code), Oracle raised a claim of copyright infringement against Google. While copyright exclusivity is based on an author reaping its benefits for a certain period of time, the courts and Copyright Act also prevent this monopoly from hampering the public interest at large. Keeping that in mind, the SCOTUS appears to have based their decision on two Copyright Act limitations as they envisioned the consequence of their judgment. Primarily, as per United States Code Unannotated Title 17 - Section. 102 (b) of Copyright Act, copyright protection cannot extend to “any idea, procedure, process, system, method of operation, concept, principle, or discovery . . . .” Secondly, the author or the copyright holder cannot prevent another person from making a “fair use” of a copyrighted work. In view of this, the Google’s petition was entirely based on the defence of “fair use”, as they undisputedly copied Oracle’s copyrighted API code ��verbatim. Accordingly, the bench was to decide whether Google’s use copyrighted code ��for its Android operating system constituted “fair use” . However, the scope of this defence is far-reaching.

c) Applicability of the Fair Use Doctrine in Google LLC v Oracle America Inc.

In order to understand the fair use doctrine codified under Section. 107 of United States Copyright Act., the SCOTUS comprehended the use in four factors, which included:

1. The purpose, nature and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes”. It was interpreted that such use was in nature and to provide the programmers a different setup without eliminating the similar features for their Android platform. They added something new, with a further purpose to create distinct parallel environment for different computing environment (smartphones).
2. The amount and substantiality of the portion used in relation to the copyrighted work as a whole. The copied code was 0.4 percent of the entire API at issue, which consists of 2.86 million total lines. Hence, the code needs to be interpreted on entirety and its functionality as a whole.
3. And the effect of the use upon the potential market for or value of the copyrighted work – the showed that the Android platform which was developed was not a market substitute of the Java SE, hence the reimplementation of the similar functionality codes into a different environment was under the scope of fair use applicability.

The SCOTUS applies the fair use doctrine on a case-by-case basis based on mixed facts and laws . Hence, ��copyright protection for APIs remains ambiguous and software developers and investors in the market remain uneasy. Further, it is imperative to note that Canada does not recognize the doctrine of fair use. However, Canada’s Copyright Act includes the similar principle of “fair dealing”, a narrower version of the former doctrine which may not excuse this type of copying, as Canadian courts do not recognise transformative use under fair dealing.

In conclusion, have noted that if copyright in APIs were exclusive to their author, many programmers would be in a vulnerable position, which would lead to a and hamper innovation. With this being said, the existence of such an exclusive right promotes licensing and royalties in the technology sector at a large scale.����

Written by Aishwerya Kansal, IPilogue Contributor. Aishwerya has completed her Masters in Law in International Business Laws at Osgoode Hall Law School, and she is currently working as an IP Law Clerk with Bereskin & Parr and is also an IP Innovation Clinic Fellow.

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