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Supreme Court Applies Fair Use Doctrine to APIs

on Thursday, 1 July 2021 in Technology & Intellectual Property Update: Arianna C. Goldstein, Editor

Earlier this term, in Google LLC v. Oracle America, Inc. the Supreme Court issued an impactful ruling holding that Google’s use of Oracle’s application programming interfaces (APIs) did not constitute copyright infringement under the fair use doctrine.  Importantly, the Supreme Court did not decide whether such APIs were copyrightable –leaving this an open question.  Oracle owns a copyright in Java SE, a computer platform utilizing Java as its programming language.  Google copied approximately 11,500 lines of code from the Java SE platform to allow its developers familiar with Java to work on its new Android platform.  In particular, Google copied Oracle’s APIs to facilitate development of its own Android platform.

In applying the doctrine of fair use, the Court considered the four fair use factors, determining that all four elements weighted in favor of fair use.

  1. Nature of the Work. This first element considers the primary purpose of the copied work as to whether it is of a commercial nature or for educational purposes.  Interesting, the Court held that this element favors fair use, as the copied portions of code are APIs rather than code that executes a task.
  2. Purpose and Character of the Use. The consideration under the element is whether the use transforms the copyrighted work to add something new with a different character or purpose.  Here Google’s copying is transformative as it only copied the APIs necessary to allow its developers to work on its new Android platform.
  3. Amount and Substantiality of Copyrighted Work Used. This element considers the amount of the copyrighted work used, where use of a substantial portion of the whole weights against fair use. While Google used 11,500 lines of code, this constitutes only 0.4% of the entire API at issue. The low amount of use of the whole and the transformative nature of the use, leads to this factor weighting in favor of fair use.
  4. Effect of Copying on the Market for Copyright Work. This element considers whether the new work is a substitute for the copyrighted work or diminishes the value of the market for the copyrighted work. The record showed that Google’s Android platform was not a substitute for Java SE, and that Oracle would benefit from the reimplementation into a different market, which all weighs in favor of fair use.

It is important to remember that while fair use is a question of law it is also very fact specific.  As such, this decision does not provide that all uses of copyrighted APIs are permitted under fair use, rather use must be analyzed within the fair use framework to determine its permissibility.

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