In May 2016, a six-year legal tussle between Google and Oracle entered its final phase when the US District Court for Northern California ruled that Google’s use of 37 Oracle Java APIs (application programme interfaces) in Google’s Android mobile operating system was permissible as it amounts to ‘fair use’ under US copyright law.

Oracle’s copyright infringement claim

The complex Oracle v Google litigation began in 2010. Oracle claimed that when Google was developing its Android mobile operating system it infringed Oracle's intellectual property in proprietary Java software by, among other things, directly copying and inserting around 11,500 lines of Java code without sufficient licensing. Oracle claimed that Google’s reuse of 37 of 166 packages of the Java API was an infringement of Oracle’s copyright and patent rights.

Google’s counter-argument was that an API is a series of instructions that allows one computer programme to interact and communicate with another computer programme. As such, Google argued that an API is different from traditional software code as it is more functional in nature, like a street sign guiding traffic, and therefore not copyrightable.

Prior decisions

Google won the first round in 2012 when US District Court Judge William Aslup ruled that APIs cannot be copyrighted. He went on to state “the particular elements replicated by Google were free for all to use under the [US] Copyright Act.”

His decision was reversed by the Court of Appeals of the Federal Court in 2014 who ruled that the declaring code and the structure, sequence, and organization of the API packages are entitled to copyright protection. The general understanding in the industry at the time was that using another company’s API is permissible insofar as the second company re-implements the API through independently written code.

While the jury unanimously held Google to be infringing Oracle’s copyright, the same jury deadlocked on the issue of whether that infringement constituted ‘fair use’.

2016 ‘fair use’ ruling

The US Supreme Court refused to review the Court of Appeal’s decision on copyright infringement so the case returned to the US District Court in 2016 for a new trial that considered whether to uphold Google’s last ditch defence of ‘fair use’ of the APIs. Under US copyright law, ‘fair use’ allows limited use of material without acquiring permission from the rights holder for certain specified purposes. But what actually constitutes ‘fair use’ is often decided on a case-by-case basis. In the May 2016 case, the jury found that Google’s use of the Java APIs in its Android mobile operating system amounts to ‘fair use’.

Cascade of liability to users?

If a jury in the US had found that Google’s use of the Java APIs did not amount to ‘fair use’, other makers of smart phones and devices incorporating Android software could have been liable under US copyright law for infringing the Java API packages. While it is unlikely that Oracle would have pursued every individual Android user it could also have created a cascade of liability for Android users under US copyright law’s strict liability rules.

APIs under Irish law

While a case like this has yet to be decided in Ireland, there is some guidance on the approach an Irish court would take. First, an Irish court would have to consider if an API is, for the purpose of the Copyright and Related Rights Act 2000 (the “Act”), a protectable piece of software. If it is, then the software would be protected as if it were a ‘literary work’ under the Act. On the other hand, if an API was deemed to be a mathematical concept, copyright protection would not extend to it.

If the API was held to be copyright protected software, the Irish court would then have to decide if any defences were available. There is no ‘fair use’ defence in Ireland but we do have a similar defence of ‘fair dealing’ under the Act. The fair dealing defence is more limited in terms of scope than ‘fair use’ in the US. For example, it is only applicable in certain cases: fair dealing concerning literary, dramatic, musical or artistic works, sound recordings, films, broadcasts, cable programmes, or non-electronic original databases for the purposes of research or private study. Further, the fair dealing defence may not apply if the activity unreasonably prejudices the interests of the owner of the copyright.

Given that the fair dealing defence is more limited than the United States’ doctrine of fair use, it would be more difficult for an API developer to mount a successful defence of fair dealing in Ireland should the same facts come before an Irish court. But the actual outcome of any claim remains to be seen, and we will have to wait to see how an Irish court might treat the issue.

Is this the end?

The recent US decision means that Google and users of the Android operating system will be able to mount the ‘fair use’ defence to a copyright infringement claim. However, Oracle’s legal team have stated their intention to appeal the decision, so the saga is not over.

Many in the software industry who rely on free access to APIs to help them program third-party applications and services welcomed the success of Google’s ‘fair use’ defence. However, for others, the ‘fair use’ defence is problematic or unavailable. The underlying 2014 decision of the Court of Appeals that the Java API packages are entitled to copyright protection remains. Continuing uncertainty is unfortunate, as it may dissuade some companies from using the APIs of large technology companies. However, as the battle wages on, we can hope for more guidance from the US courts on the issue.

The content of this article is provided for information purposes only and does not constitute legal or other advice.