Did the Supreme Court TRIP on its Latest Copyright Decision?

Written by: Alyssa Christian, Associate Editor

If Google’s search engine could judge its users’ searches, before Monday, it definitely would have cringed at the question of whether application programming interface (API) codes are protected by copyright.  That is because Google copied 11,500 lines of Oracle’s Java Program code to create its Android platform.  Oracle, claiming that the lines of its API codes were protected by copyright, sued Google in the hopes of an $8 billion reward.  On April 5, 2021, the Supreme Court of the United States finally decided the long-anticipated case between the two companies, and Oracle will not be getting the billions.[1]

The Copyright Act limits the monopoly given to copyright holders to mitigate harms to innovation and the public.  One of these limits is in Section 102 (b) which precludes protection for “any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”[2]  The other significant limitation is fair use as explained in Section 107.[3]

Does Oracle’s API code fall into one of the Section 102 (b) prohibitions?  The world, if it was just relying on the Supreme Court’s recent decision, would never know because the Court sidestepped the issue.  The copied API codes allow developers to create program functions without writing their own code which seems like it could be a method of operation.  However, the Court did not address this.  To find for Google without answering the question, the Court assumed for the sake of the argument that the code was copyrightable, and focused on a second copyright limitation, fair use.  In the 6-2 decision, the Court held that the copying was fair use as a matter of law.[4]

By dodging the question, the Supreme Court purposely avoided an issue of international law.  The TRIPS Agreement provides the copyright standards for trade.  It uses the Berne Convention of 1971 as a base, but it specifically adds protection for computer programs and databases.  Article 10 of the Agreement states “computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).”[5]  Therefore, the Court’s deliberate decision to abstain from declaring APIs protectable or not also eludes and international issue.

The tech world applauded the Supreme Court’s decision in favor of Google, but they hoped that the Court would declare the codes unprotectable by copyright.  Many still view this as a win for artists and software developers, thinking this may expand fair use.[6]  Others see this as a welcoming of infringement to the detriment of innovation.  Although this was a huge decision, there is still a lot more to come on this issue domestically and internationally.

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[1] Google v. Oracle Am., No. 18-956, slip op. (U.S. Apr. 5, 2021).

[2] 17 U.S.C. § 102(b).

[3] 17 U.S.C. § 107.

[4] Shira Ovide, Google Won. So Did Tech., N.Y. Times, (Apr. 6, 2021) available at https://www.nytimes.com/2021/04/06/technology/google-oracle-supreme-court.html?searchResultPosition=2.

[5] TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C.

[6] Ovide, supra note 4.