Can an API Be Copyrighted?

Are application programming interfaces (APIs) subject to copyright protection? The question is at the center of the Oracle v. Google intellectual property infringement case, but last week’s jury decision did not provide an answer. 

That’s because the jury was told to avoid the issue altogether. From law firm Patton Boggs:

“The jury, upon an instruction from the Judge to assume the software was copyrighted, found that Android’s overall structure, sequence and organization infringed upon Oracle copyrights.” (California Jury Finds the Google Mobile Software Infringes Oracle Copyrights, but Fails to Decide if Google’s Use is Protected Under the “Fair Use” Doctrine) 

According to Pamela Jones, IP law reporter and founder of Groklaw, presiding Judge William Alsup gave that instruction because he is the only one who can determine the whether the APIs are copyrightable:

“’The jury didn’t decide API are copyrightable. They can’t. That’s a question of law, and the judge is the one that has to decide that issue.’ Jones stated that Alsup ‘decided that he’d let the jury decide the fair use issue first, and then if they found fair use, he wouldn’t have to reach that decision. But if they found infringement and no fair use, then he would decide if APIs are copyrightable and more specifically if their arrangement is protectible.’” (Copyrights, APIs, and Oracle vs Google on ZD Net) 

As it turns out, the jury took yet another path: they found that Google did infringe upon Oracle’s IP, but were not able to reach a verdict on fair use. From Field Law: 

“The failure to decide on the ‘fair use’ defence … leaves the issue open. The jury was deadlocked on that question, potentially leading to a mistrial. Indeed, Google filed for a new trial last week.” (Copyright Protection for APIs) 

That result might not spell the end for hopes of a definitive answer regarding copyright protection for APIs, however. On the contrary: recent developments in the trial indicate that Judge Alsup could be preparing to rule on the issue. Again, Patton Boggs:

“Judge Alsup has requested both sides comment on the May 2, 2012 European Court of Justice opinion, where the European Union held that the functionality of a computer program and the programming language is not copyright protected. The European Union ruled that the software functionality, programming language and data file format is not a ‘form of expression’ sufficient to enjoy copyright protection.”

Whether the judge’s interest in the EU ruling is any indication of his position on copyrighting APIs remains to be seen. For the time being, the jury is still out.

Read the updates:

• California Jury Finds the Google Mobile Software Infringes Oracle Copyrights, but Fails to Decide if Google’s Use is Protected Under the “Fair Use” Doctrine (Patton Boggs LLP) 

• Copyright Protection for APIs (Field Law) 

• European Union Court Rules that Software Functions Cannot Be Copyrighted (Patton Boggs LLP) 

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