Reed Smith Client Alert

Authors: Gregor Pryor

On 31 May 2012, U.S. District Judge William Alsup delivered a detailed judgement upholding the principle that APIs are not protected by copyright in the Oracle v Google case. Oracle filed an appeal to the ruling in October 2012 and the approaching appeal date has fuelled debate in the software and intellectual property sectors, with a number of interested parties submitting amicus briefs to the U.S. Court of Appeals for the Federal Circuit detailing their position and stressing the impact of the eventual appeal decision.


  • The structure, sequence, and organisation of the 37 Java APIs at the centre of the Oracle v Google case were found not to be protected by copyright by the District Court.
  • Copyright law in the US, UK and EU does not protect the functional aspects of software on the basis that computer languages are essentially mediums of communication.
  • Interoperability is intrinsic to the further development and end user enjoyment of modern technology.

The Oracle v Google case

For the past forty years, a common and accepted principle in the software industry has been that the code used to define interfaces and APIs is functional and thus not protected by copyright. In contrast, the code needed to provide the software’s capabilities is an expression of ideas and may attract copyright protection. Oracle filed a claim against Google for copyright infringement related to Google's use of 37 Java APIs in the Android mobile operating system and the case went to trial in May 2012.

Oracle argued that Google knowingly used the Java APIs without a licence from its subsidiary, Sun Microsystems. Conversely, Google argued that the use of Java APIs were necessary in order to use Java programming language, which is open source and free to use. It is worth noting that Google’s use of the Java APIs prevented interoperability with other Java software. The jury gave a partial verdict in the case and found that Google had infringed the structure, sequence and organisation of the Java programming language. However, Judge Alsup found that the APIs in question were not protected by copyright, which resulted in the dismissal of the copyright infringement claim. He found that copyright protection could not extend to these particular Java APIs because they were a functional part of the Java platform and anyone is free to write code that implements those functions provided the implementation is original. Judge Alsup went on to say that "under the rules of Java, the names of Java interfaces must be identical to declare a method specifying the name functionality - even when the implementation is different. When there is only one way to express an idea or function, then everyone is free to do so and no one can monopolise that expression". He made it clear that the finding that these APIs did not enjoy copyright protection was based on the specific details of this case and was not intended to create a broad legal precedent. However, his reasoning about the functional nature of APIs could clearly affect subsequent cases, hence the software industry’s interest in the subsequent appeal.

The appeal

Oracle’s appeal has not yet been heard, but amicus briefs have been filed in support of both parties. These briefs form the basis of the debate within the software and intellectual property communities about whether or not copyright protection should be extended to include APIs.

The debate

Software developers depend on the free exchange and use of API codes. These codes are analogous to building blocks and provide a standard interface so that different software can operate and be used together. The importance of API code is central to understanding the potential impact that Oracle’s appeal, if successful, may have on software innovation and development. The use of APIs is an inherent aspect of communication between devices and servers. The crux of the debate is whether copyright protection is the best way to ensure future innovation and collaboration in the industry, and how this protection should be balanced with the concept of interoperability.

The latest amicus filing is by the Electronic Frontier Foundation, a group that represent 32 notable computer scientists, including the author of MS-DOS Tim Patterson, whose amicus brief is in support of Google. The central message is that affording copyright protection to APIs would operate as a hindrance to software development. All software developers use APIs to achieve interoperability, so that their software can work with other software. If the appeal is successful, developers will be able to control who can make interoperable software and may use this as a means to block competition. The end result of this could be lower-quality and less innovative software. The freedom to use and extend existing APIs has been essential to modern computing, and in particular, the development of UNIX, internet network protocols, content sharing on social media platforms and cloud computing. The central view held by those supporting Google is that extending copyright protection to APIs will act as a barrier to entry and competition in the software development sector.

Oracle too is not short of industry support. The signatories of amicus briefs in support of Oracle include those involved in software research and development, Microsoft, Oracle's competitors, and Ralph Oman the former head of the U.S. Copyright Office. Microsoft’s amicus brief highlighted aspects of the District Court judgement which it believe misconstrued how copyright protection may be afforded to software and failed to recognise the balance that copyright law attempts to achieve between offering protection and enabling freedom to innovate. In particular, it states that software code, which contains more than a slight amount of creativity, satisfies the "modicum of creativity" that the U.S. Supreme Court set as the standard for copyright protection. A similar argument was put forth by Oracle in their appeal. The Microsoft brief also raised the point that copyright protection is not likely to stifle software innovation because the application of the U.S. fair use doctrine will allow for competing products to enter the market. Support for this view centres on achieving balance between allowing developers to protect their intellectual property and ensuring that other legal principles encourage innovation.

Further thoughts

Should Oracle be successful in its appeal, the attribution of copyright protection to APIs is likely to have a significant effect on the industry. While those who have filed amicus briefs in support of Google believe that this could have an overwhelmingly negative impact by reducing competition and hindering innovation, the opposing amicus briefs in support of Oracle suggest that the impact will not be that dire. One undeniable impact of a successful appeal is that businesses and developers are likely to face legal uncertainty over the effect of their use of APIs in software.

In the EU, the importance of interoperability has been recognised. In 2004, the European Commission demanded that Microsoft make interoperability information available to its competitors. The General Court of the European Union upheld this decision. However in SAS Institute Inc. v World Programming Limited [2013] EWHC 69 (Ch) the CJEU found that copyright in a computer program does not protect its programming language nor its interfaces and functionality from being copied because these aspects do not constitute a form of expression. Applying the ruling of Mr Justice Arnold in SAS, it seems unlikely that the EU or UK courts would have decided the Oracle v Google case differently to Judge Alsup. The international software industry will be awaiting the decision in the U.S. appeal because of the potential for it to influence the way that copyright protection is deemed to apply to software and APIs moving forward.

Client Alert 13-168