by Dennis Crouch
Google v. Oracle (Fed. Cir. 2018)
Google has now filed an en banc rehearing petition in its dispute with Oracle over copyrightability of the naming system for an application programming interface — namely Oracle’s Java API that Google copied. [Oracle Am. v. Google LLC Rehearing Petition]
The basic issue here stems from Google’s program interface for Android App development. Rather than creating its own set of functions and methods, Google decided to mimic the method-calls of Java. At the time, Google’s third-party app marketplace was lagging far behind Apple’s, and the Java-API mimic was seen as a strategy to facilitate more rapid development of apps since the programming language was already so popular. I previously explained:
As an example, Google used the Java method header “java.lang.Math.max(a,b).” When called, the “max” function returns the greater of the two inputs. In Android’s API, Google copied a set of 37 different Java “packages” (such as Math) that each contain many classes and method calls (such as “max()”). Overall, Google copied the header structure for more than six-thousand methods.
Although Java was available for licensing, Google refused. Although Java’s originator Sun Microsystems was known for its lack of IP enforcement, that all changed when Oracle acquired the company.
In the most recent iteration of the case, the jury found that Google’s use was a “fair use” and thus not an infringement. On appeal, however, the Federal Circuit reversed — finding the API the proper subject of copyright protection and not subject to a fair use defense in this case. As Jason Rantanan wrote: “the court’s analysis all but says (expressly so!) that fair use can never apply.”
In its petition, Google raises both the underlying copyright challenge and the fair use question. Questions:
- Whether application programming interface (“API”) declarations—which are designed to invoke pre-written functions and methods of software—are systems or methods of operation and thus not entitled to copyright protection.
- Whether use of API declarations, but not implementing code, in a new and different context is protected by the fair-use doctrine.
The petition walks through a handful of copyright cases – explaining its position that the Federal Circuit’s position is “contrary to.”
- Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) (on fair use, the transformation question is whether the work as a whole has been transformed — not just a focus on the copied portions);
- Harper & Row Publishers v. Nation Enters., 471 U.S. 539 (1985) (fair use is a mixed question of fact and law – not simply a question of law);
- Sony Computer Entm’t v. Connectix Corp., 203 F.3d 596 (9th Cir. 2000) (functional requirements for comparability are not protected by copyright; protection is also limited by fair use);
- Lotus Dev. Corp. v. Borland Int’l, 49 F.3d 807 (1st Cir. 1995), aff’d by an equally divided court, 516 U.S. 233 (1996) (menu hierarchy not entitled to copyright protection);
- Sega Enters. v. Accolade, 977 F.2d 1510 (9th Cir. 1992) (See Sony).
The issues here are fundamental and I expect are likely to rise up to the Supreme Court.