Multifaceted Interpretation of the Fair Use of API: Defence of Google Upheld

Last month, in the much-anticipated Google LLC v Oracle America Inc decision, the Supreme Court of the United States (SCOTUS) decided the decade-old litigation dispute of copyright infringement in functional software codes . The case has been reversed and overturned multiple times by district courts and courts of appeals since 2010 and the API system’s copyrightability has been a subject of multiple interpretations of the “fair use” doctrine. The SCOTUS has, irreversibly, upheld the judgement in favour of Google (APIs use is a fair use), which has raised many concerns for software companies and the open-source community with regards to the monopoly rights on software codes and its influence as precedence in other jurisdictions. The precise issue of the case is copyrightability in the functional aspect of the software, known as Application Programming Interface (API).

a) What are APIs?

APIs are prewritten combinations of implementing codes, method calls and declaring computing 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. Such codes are open source and have been readily available to the programmers since the 1950s.

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 transformative 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 evidence and statistics 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, scholars 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 dangerous path of suits 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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