Supreme Court: Copying APIs in Software Can Be Fair Use
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Supreme Court: Copying APIs in Software Can Be Fair Use

Brownstein Client Alert, May 12, 2021

Intellectual property protection for software has long been a concern, both for innovators seeking to protect their work as well as innovators seeking to make use of existing works for further development. The shifting landscape of such available protection has involved questions regarding the extent to which functional aspects of software are patentable, the extent to which the creative expression in software is protectable by copyright, and so on. The recent Supreme Court decision in Google LLC v. Oracle America, Inc. provides the guidance that copying of application programming interfaces (APIs) may be treated differently than other portions of software for the purposes of fair use defense to copyright infringement.

APIs are interfaces that allows programmers to call upon prewritten computing tasks, or implementing code. In this case, Google copied portions of the API of Java SE as part of building the Android platform. Google did not copy the implementing code and had copied the portion of the API in order to leverage the experience developers had with Java when creating software for the Android platform.

The court did not squarely address whether or not APIs could be copyrighted, taking that as assumed and instead addressing whether or not Google’s copying of the API constituted permissible fair use. In addressing such, the court evaluated the nature of the work copied, the purpose and character of the use, the amount of the copying and the effect on the market for the copyrighted work. After evaluating these factors, the court determined that Google’s copying constituted permissible fair use.

In doing so, the court noted that the copyright protection for software was limited due to the heavily functional nature of the software. Regarding APIs specifically, the court noted that the APIs were merely interfaces to implementing code and that Google copied them to leverage the time that programmers had already invested as opposed to any inherent value in the structure of the APIs. This combined with the fact that Google only copied 4% of the API, Google transformed the API as part of creating the new Android platform and that Google’s Android platform was not a market substitute for Java SE resulted in a finding of fair use.

The decision in this case is certainly fact specific. However, Google LLC v. Oracle America, Inc. does indicate that copying of portions of software may be more likely to constitute fair use when the value of the copied portions relates to aspects other than any creative expression contained therein. This may be particularly so for portions of code like APIs. Beyond that, Google LLC v. Oracle America, Inc. evidences the need for developers to seek the advice of counsel in order to analyze protections available for their innovations as well as the extent to which they may be able to make use of the innovations of others. The legal landscape of intellectual property software protections shifts over time and is likely to continue to do so.

This document is intended to provide you with general information about case law related to copyrighting software. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.

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