On Friday the US Court of Appeals for the Federal Circuit issued its much awaited decision in the Oracle v Google case. The case concerned copyright in APIs (Application Programming Interfaces) written by Oracle in the Java programming language. The APIs were licensed by Oracle and used by software developers in apps for smartphones, PCs and other devices.
Oracle discovered that Google was using 37 of its APIs without permission and filed a lawsuit claiming that Google’s Android mobile operating system infringed Oracle’s patents and copyrights. The jury in the original case found no patent infringement (which was not challenged on appeal) and found that Google had infringed Oracle’s copyright in the 37 Java packages but deadlocked on the issue of Google’s ‘fair use’ defence. However, the District Court denied Oracle’s motion for judgment as a matter of law (“JMOL”) and, following further consideration, ruled in favour of Google (except in respect of a specific computer routine known as “rangeCheck” and eight decompiled security files) finding that of the 37 Java API packages at issue, “97 percent of the Android lines were new from Google and the remaining…..elements replicated by Google were free for all to use under the Copyright Act.”
Both Google and Oracle appealed and at the end of last week the Court of Appeals reversed the decision of the District Court and held that the declaring code and the structure, sequence, and organisation of the 37 API packages were entitled to copyright protection. In coming to this decision, the Court considered whether the work was original (originality being a fundamental requirement for copyright protection) and whether the APIs constituted ideas or the expression of an idea. Under both US and EU law, copyright protection is not available for a mere idea but is available for the ‘expression’ of an idea.
In this case Oracle claimed copyright protection with respect to both: (1) the literal elements of its API packages (being the lines of source code); and (2) the non-literal elements (being the structure, sequence, and organization of each of the API packages). Both parties agreed that the APIs met the originality requirement. However, they disagreed upon whether they were an expression of an idea or just an idea itself. The Court found in Oracle’s favour in respect of both elements, finding that that the non-literal elements of the APIs were more than a mere idea and that Oracle had made a choice in how to express those ideas noting that “there were myriad ways in which the API packages could have been organized”.
The US decision has created an even greater divergence of US and EU copyright law. In 2012, the Court of Justice of the EU ruled that whilst source code itself can be afforded copyright protection, APIs and other functional characteristics (such as data formats and function names) cannot be. In reaching this finding the Court stated that “to accept that the functionality of a computer program can be protected by copyright would amount to making it possible to monopolise ideas, to the detriment of technological progress and industrial development”. For software businesses looking to operate on a global scale, this divide is not good news.
This isn’t the end of the story. The Court of Appeals has referred the case back to the District Court for further consideration of Google’s ‘fair use’ defence and even after the ‘fair use’ issue has been decided, it is likely that the case will be subject to further appeals.