On 5 April 2021, the US Supreme Court ruled a new milestone in a 10 years case opposing Oracle and Google.

Google, which had taken over Android in 2005 with the ambition to develop a smartphone system, wanted interoperability with Java Standard Edition libraries (at that time developed by Sun, which was purchased by Oracle in 2010). Google copied 37 APIs (library interfaces) making about 11.500 lines of code (about 0.4% of the total Java source code) that were then available under the GNU/GPL licence.

In 2010, Oracle initiated an 8 billion US$ suit against Google, arguing patent violation first and that the APIs were copyrightable. On its side, Google admitted to using the APIs but claimed this was within fair use.

Two District Court trials found in favour of Google: the initial claim that was based on patent infringement was rejected. But the Federal Circuit court reversed both decisions in 2015, asserting that APIs are copyrightable and that Google's use does not fall under fair use. Google petitioned to the Supreme Court, focusing on the non-copyrightability of APIs and their subsequent fair use.

On 5 April, the Supreme Court ruled that Google's use of the Java APIs fell within four factors of fair use, bypassing the question on the copyrightability of the APIs. The decision reversed the Federal Circuit ruling and remanded the case for further review.

In (very) short, the four conditions for fair use were:

1. The nature of the copied work: APIs having an "organization function";
2. The purpose and character of the use: for interoperability purpose, "as needed to include tasks that would be useful in smartphone programs";
3. The minimal use of 0.4% of the Java code (not the heart of Java);
4. The small market effect at the time of taking the copy (while now, since Android became a world-wide success, a copyright locking would risk harm to the public and go against copyright's basic creativity objectives).

So, while some conditions of fair use are more or less clarified, the case is still pending, sent back to the District Court and, unfortunately, the Supreme Court has not ruled on the copyrightability of APIs. It seems also that Open Source permissions granted by the GPL licence were not considered. The fundamental question stays unanswered.

What would be the position of an European Court in such case? It looks clear that this Court would refer to the GPL licence and to the Directive on the legal protection of computer programs (91/250 EEC or 2009/24/EC), which promotes a copyright exception for APIs, defined as the code that is indispensable to achieve the interoperability of an independently created program with other programs. Recital 15 states that “the reproduction and translation by or on behalf of a person having a right to use a copy of the program is legitimate and compatible with fair practice and must therefore be deemed not to require the authorisation of the right­ holder. An objective of this exception is to make it possible to connect all components of a computer system, including those of different manufacturers, so that they can work together.”

Two conditions of fair use are also defined by the Directive, since “Such an exception to the author's exclusive rights may not be used in a way which prejudices the legitimate interests of the rightholder or which conflicts with a normal exploitation of the program”.

The suit has been of significant interest within the tech and software industries, as numerous computer programs and software libraries, particularly in open source, are developed by recreating the functionality of APIs from commercial or competing products to aid developers in interoperability between different systems or platforms.

A case to follow…