Google LLC v. Oracle America, Inc., No. 18-956, Supreme Court of the United States
On October 7, 2020, the Supreme Court will hear argument in a case with potential to resolve two far-reaching questions about the application of copyright law to the packages of computer code known as application programming interface (“API”). Google has described API as the “isolated instructions” from a copyrighted program that “create an interface connecting the operating system to commands in applications written by software developers.” Google’s Principal Brief, at 1-2.
The case arises out of Google’s development of the Android operating system used in many smartphone brands. Android is an open-source system designed to encourage independent software developers to create applications fully compatible with Android. Google anticipated, correctly, that demand for Android would be enhanced by the prospect that consumers would have access to more compatible applications than would be the case with competing smartphones using closed-source operating platforms, or open-source platforms unfamiliar to developers.
To achieve its goal, Google developed Android in the Java programming language, one long used by and widely known to programmers throughout the world. Google’s calculation was that by targeting the large, existing pool of Java-proficient developers it would ensure prompt development of compatible software for Android. But the plan was not perfect. As an initial matter, when it came time to write original API for Android, Google found that its engineers were unsuccessful. Oracle Am., Inc. v. Google LLC, 886 F.3d. 1179, 1187 (Fed. Cir. 2018). In addition, Sun Microsystems and, later, Oracle claimed copyright protection for Java.
When its efforts to reach a negotiated accommodation with Sun failed (Oracle acquired Sun in 2010), Google decided to use 37 API packages (11,500 lines of Sun’s copyrighted code) to complete the Android operating system. Id. The first Android smartphones went on sale in 2008. Id. By 2018, Google had generated over $42 billion in revenue from advertising related to Android. Id., at 1187-1188.
The appeal before the Court presents two questions. The first is whether copyright protection extends to API at all. Google contends that, while Oracle’s API is an original work of authorship, it is nonetheless excluded from copyright protection because it is work constituting an “idea, procedure, process, system, method of operation, concept, principle, or discovery” within the meaning of the Copyright Act’s exclusion for such work. 17 U.S.C. §102(b). But even if Oracle’s API enjoys copyright protection, there is the related question as to whether Google made only fair use of Oracle’s work. See 17 U.S.C. §107.
Much is at stake both for the parties and the wider software industry. For the parties, there is the matter of Oracle’s untested claim for $8 billion in damages, say nothing of the prospective use and profitability of the Android operating system. For the developers of open-source software and the applications that build upon it, almost any outcome will substantially resolve the uncertain copyright status of API, and, in some cases, reorder the allocation of development costs going forward.
– Anthony F. Muri, October 5, 2020