Copyrighting Code: When Oracle Took on Google, and (Mostly) Lost

Federal copyright law has existed in largely-unchanged form since October 1976, the last time Congress undertook a massive reform of our copyright system. To put that in a bit of techno-historical perspective, Microsoft was a mere eighteen months old at the time, having been incorporated in April 1975. Apple was a year younger, with an April 1976 incorporation date. The past forty years have brought more than a few technological changes, and it is debatable whether copyright law, as currently written, is capable of addressing the issues presented by modern computer technology. A years-long legal fight between Oracle and Google, which recently resulted in a jury verdict in Google’s favor, demonstrates some of the difficulties applying copyright law to computer software.

app-1013616_1280Oracle’s lawsuit accused Google of infringing its copyright in application programming interfaces (APIs) used with the Java programming language. Google had taken the framework of these APIs and modified them for its Android mobile operating system. A federal judge had ruled in 2012 that the APIs were not entitled to copyright protection, but an appellate court reversed that ruling. The case went to trial again in May 2016, and the jury found that Google’s use of the APIs was protected by the Fair Use Doctrine. Whether this is good news or bad news depends on your point of view, but given how important APIs are to digital technology, the ruling is important to freelancers, entrepreneurs, business owners, and just about anyone who uses the web.

What Is Copyrightable?

Copyright protection is available for “original works of authorship fixed in any tangible medium of expression,” including written materials like books or music, audio recordings of musical performances, visual recordings such as films and videos, and visual media like photographs and paintings. After the 1976 overhaul of the Copyright Act, Congress amended it again in 1980 to address computer technology more specifically.

The 1980 amendments define a “computer program” as “a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result.” Congress also enacted provisions regarding authorized uses of computer programs by consumers and other users. The extent to which software is copyrightable remains somewhat in doubt, however.

Copyright protection does not extend to ideas, as opposed to a specific expression of those ideas. For example, a concept for a story about an alien stranded on Earth who befriends a young boy is a non-copyrightable idea. This is how Mac and Me is able to coexist with E.T. the Extraterrestrial without violating copyright law.

The Copyright Act also states that a “procedure, process, system, [or] method of operation” is not subject to copyright protection. The question, then, is when software is merely a “process,” and when it is a “work of authorship.”

What Is an API?

I am not a tech person, so I am not going to attempt a thorough definition of an API here. The best I can offer is that an API is a protocol or process that enables different software applications to communicate with one another. I have heard it compared to a series of hitches for railroad cars, but I prefer to think of it as a virtual C-3PO.


APIs are essential for integrating different applications or systems. This blog post probably has “sharing” buttons for social media services like Twitter or Facebook. This is possible because of APIs that allow this blog to communicate with those services.

APIs as Non-Copyrightable Processes

The judge who presided over the first trial in the Oracle case ruled in 2012 that the Java APIs were not subject to copyright protection. He largely based this ruling on his conclusion that they are non-copyrightable processes, not copyrightable computer programs.

The similarities between the Java APIs and the Android APIs, the court found, were too general to be covered by copyright. Google was using the same file names and general structures as Oracle, but the details were different. Anyone trying to accomplish the same task would have to write something very similar. “So long as the specific code used to implement a method is different,” the court held, “anyone is free under the Copyright Act to write his or her own code to carry out exactly the same function or specification of any methods used in the Java API.”

The court also noted that its ruling did not mean that anyone was free to use the Java APIs for any purpose. It held that, “on the specific facts of this case, the particular elements replicated by Google were free for all to use under the Copyright Act.”

APIs as Original Copyrightable Works

This was a short-lived victory for Google. The U.S. Court of Appeals for the Federal Circuit, which sits in Washington D.C. and hears appeals from around the country relating to intellectual property and other matters, reversed the ruling in 2014. It found that the “structure, sequence, and organization” of the Java APIs met the originality standard for copyright protection.

The court ruled that Google could have achieved the same objectives without any copying: “Google did not need to copy the structure, sequence, and organization of the Java API packages to write programs in the Java language.” It further held that precedent cases from the Ninth Circuit, where the case originated, held that “the structure, sequence, and organization of a computer program is eligible for copyright protection where it qualifies as an expression of an idea, rather than the idea itself.”

APIs as Copyrightable Materials Covered by Fair Use

The Federal Circuit remanded the case to the district court in California for trial on the single question of whether Google’s use of the Java APIs was protected by the Fair Use Doctrine. On May 26, 2016, a jury returned a verdict in Google’s favor. The full impact of this result has yet to be determined, but it is likely to mean that software developers and others must use caution when working with other companies’ APIs.

Photo credits: Camwilliams96 (Own work) [CC BY-SA 4.0], via Wikimedia Commons; Peggy_Marco [Public domain, CC0 1.0], via Pixabay.

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