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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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The trial jury has decided the Google has infringed on Oracle’s copyright, a copyright dispute covered by IP Osgoode last year; however, the court could not decide if the infringement��was within the legal definition of fair use.

At issue in the copyright portion of the case is whether or not Google’s unlicensed use of Java, the base language for its Android mobile operating system, infringes on the Java copyright. The dispute has its origins in 2005 when Google and Sun Microsystems signed an to help spread each other’s software, and when Google started to focus on the creation and launch of its new mobile platform, Android. The relationship soured soon after, with Google’s with the Android mobile operating system, but Sun did not take any action at the time. In 2010 Oracle acquired Sun and the Java platform, opted for a more adversarial approach in protecting their newly acquired intellectual property, and filed suit against Google for infringement.

against the copyright charges is that even if the 37 Java application programming interfaces (APIs), the entities at the core of the dispute, were copyrightable, their use of the coding constructs fall under fair use and are free to use. Fair use, as defined in the US by , relies on the purpose and character of the use, the nature of the work, the amount of the work that has been used, and the effect on the value of the work through the use. Google claims that the functional nature of APIs and the transformative manner that Google is using them in supersedes the original work and therefore qualifies as�� fair use. Also, the very small percentage of material that the alleged infringed works represent out of the entire Java operating system, and Oracle’s goal for the Java platform is akin to monopolistic use and “runs counter to the statutory purpose of promoting creative expression”, is sufficient to prove that their use of the APIs falls within the fair use domain.

against the fair use argument centred on the commercial nature of Google’s use of the copyright work and the pre-existence of a license what would cover Google’s use of their IP. The mobile version of Java, Java ME, offers the license raised by Oracle that would avoid the current issue between the two tech giants. This license “”, a stream of revenue that Oracle undoubtedly wants to protect. Google has not paid for this license and Oracle and, in the event that they lose this dispute or Google is able to avoid damages, may lose a large area of revenue from their if Oracle’s other clients choose to follow Google’s approach.

The jury could not decide between the two arguments and the decision now rests with Judge William Alsup. It should be noted that Google’s argument against the second point of the fair use “test”, that only 37 APIs were used out of hundreds of thousands of lines of code comprising the Java operating system, is not as simple as it is stated. The software engineering practice of can mean that a very small area of code can be exponentially more important and used much more that other areas of code. This is especially true with core APIs that are provided by the language itself, such as those in dispute. Without further evidence on their popularity it would be unjust to base any decision on this argument.

Judge Alsup must ultimately make a decision on the copyrightable nature of APIs and decide first whether APIs are copyrightable, and then whether use of an API is enough to qualify for fair use or whether an existing license encapsulating the use of the APIs is sufficiently commercial to defeat a fair use claim. There is a hint of irony in this argument, as, mentioned in IP Osgoode’s on this case, it can be argued that APIs are designed solely for transformative use, so the decision places the original wishes of the software designer, Java, with the business priorities of the current owner, Oracle. In a related note, the European Court of Justice has that APIs and other functional characteristics of software are not eligible for copyright protection.

The dispute continues, and as we wait for Judge Alsup’s copyright��decision the case now moves through the and damage phases of Oracle’s complaint.

Mark Bowman is a JD candidate at Osgoode Hall Law School.

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