Oracle v. Google: A Resounding Win for Software Developers? Not So Fast

            Many news outlets and publications are touting the Oracle v. Google jury verdict in favor of Google’s unlicensed use of Oracle’s APIs in its Android operating system as a resounding victory for all software developers that use APIs. However, a deeper look into the case and its potential effect on copyright law tells a much different story – one that ultimately cautions against adopting a carte blanche approach to using APIs without a license. Just because the fair use defense worked for Google does not mean it will work for you. As is often the case, when it comes to fair use – even after the Oracle v. Google verdict – the devil lies very much in the details.      

Oracle Wins Round 1: APIs Are Copyrightable.

            Oracle, after acquiring Sun Microsystems in 2010, filed suit against Google alleging copyright and patent infringement for Google’s use of Oracle’s Java APIs in its Android operating system. A jury found that Google infringed Oracle’s copyright in 37 Java API packages, but ultimately deadlocked on Google’s “fair use” defense that allows limited use of copyrighted material without the copyright owner’s permission under certain circumstances. Despite the jury verdict in favor of Oracle, the district court judge ruled that the Java APIs at issue were not copyrightable and found in favor of Google on Oracle’s copyright claims. Oracle subsequently appealed the lower court’s decision to the Federal Circuit. Upon review, the Federal Circuit agreed with Oracle – it held that APIs are legally entitled to copyright protection if they are:

a)     sufficiently creative, and

b)    capable of being expressed in multiple ways.

            Because (1) the Federal Circuit found that Oracle’s Java APIs were entitled to copyright protection and (2) Google admitted to using the relevant APIs without a license, the Federal Circuit sent the case back to the lower court for a trial on Google’s fair use defense.

Google Wins Round 2:  Fair Use Defense Prevails.

            In May 2016, after a two-week trial and testimony from the likes of Eric Schmidt (Ex-Google CEO), Andy Rubin (Android’s Chief Officer) and Safra Catz (Oracle CEO), a jury returned a verdict in favor of Google on its fair use defense. In the end, and if the verdict stands, Oracle will receive nothing for Google’s unlicensed use of its Java APIs in the Android operating system.

No Relief for Software Developers.

            Does this decision mean that software developers can now start using third-party APIs without permission? Not so fast. While the fair use defense worked for Google in this instance, a fair use defense is still very much a shot in the dark, and the verdict handed down in this case does nothing to change that reality. Because the fair use doctrine gives the jury tremendous discretion on what to consider when deciding what is or is not fair use (based on a four-factor balancing test involving the “purpose and character of the use,” “the nature of the copyrighted work,” the amount of the copyrighted work used, and the economic effect of the use on the copyright holder), it is very hard to predict what evidence a jury will consider the most important, especially when the evidence is set in the context of complex and abstract issues, like the ones involved in this case. The jury here could have just as easily found in favor of Oracle on the same evidence. Google and its team of lawyers just did a better job of presenting the evidence in a way the jury could easily digest and comprehend to come to the decision that it did: Google’s use of the Java APIs was “fair” under the circumstances.

So do I need a license to use a third-party API or not?

            So what does this all mean? Two things.  First, it means that APIs are subject to copyright protection.  Second, it means that software developers may under certain circumstances be able to use third-party APIs without permission under the fair use doctrine.  But this is a risky thing to do, since the way courts (and juries) interpret the fair use doctrine varies so widely.  And since you probably don’t want to end up in court (or paying a settlement), the wisest course of action is probably to get permission to use the APIs you need.

           If you would like more information on the fair use doctrine or want to discuss the particular issues facing your company, please give us a call at 617-841-2418 or email us at