Supreme Court Overturns Oracle Copyright Win Regarding Programming Code, Holds Fair Use
Written April 5, 2021
On April 5, 2021, the U.S. Supreme Court overturned Oracle’s copyright win over Google, holding that Google’s use of Oracle’s programming code from the Java SE Application Programming Interface (API) in their Android platform was a fair use and did not violate copyright laws. The Court determined that Google’s use of only those lines of code that were needed to allow programmers to put their accrued talents to work in a new and transformative program was a fair use of that material as a matter of law. To read the opinion, please click here.
AIPLA filed an amicus brief in this case on January 13, 2020. To read the brief, please click here.
Google LLC wrote its own programming language based on Java when it implemented its Android Operating System (Android OS). In order to allow developers to write their own programs for Android OS, the same names, organization, and functionality as Java’s Application Programming Interfaces (APIs) were used in Google’s version. Oracle America, Inc., the owners of Java, sued Google for copyright infringement, but the federal district court held that APIs are not subject to copyright because permitting a private entity to own the copyright to a programming language would stifle innovation and collaboration.
The U.S. Court of Appeals for the Federal Circuit reversed the district court’s decision and held that a software interface is copyrightable but left open the possibility of a fair use defense. Google’s first petition for certiorari was denied by the U.S. Supreme Court.
On remand, the district court sent the question of fair use to a jury, who decided that Google’s copying of 37 Sun Java API packages constituted a fair use. Oracle again appealed to the Federal Circuit, which reversed the district court, finding that Google’s use of the Sun Java API was not a fair use as a matter of law. The questions Google presented to the Supreme Court included whether copyright protection extends to a software interface, and if so, whether, as the jury found, the petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use.
OPINION OF THE COURT
Writing for a 6-2 majority, Justice Breyer declined to address the first question on copyrightability and instead resolved the case focusing on the question of fair use. He outlined the doctrine of “fair use” and explained that it is a mixed question of fact and law, but the ultimate question is one for the court to decide as a matter of law. To determine whether Google’s copying of the API constituted fair use, the Court examined the four guiding factors in the Copyright Act’s fair use provision: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.
The Court found the nature of the work at issue favors fair use, since the code in question is different from many other types of code, such as the code that instructs the computer to execute a task. As part of an interface, the copied lines are inherently bound together with uncopyrightable ideas (the overall organization of the API) and the creation of new creative expression (the code independently written by Google). The Court found that given these differences, application of fair use here is unlikely to undermine the general copyright protection that Congress provided for computer programs.
The Court found the purpose and nature of Google’s limited copying of the API was a transformative use. Google’s purpose was consistent with that creative progress that is the basic constitutional objective of copyright itself. In addressing the third statutory factor, the Court noted that the 11,500 lines Google copied make up only 0.4 percent of the entire API at issue, which consists of 2.86 million total lines. In considering “the amount and substantiality of the portion used” in this case, the 11,500 lines of code should be viewed as one small part of the considerably greater whole. The “substantiality” factor will generally weigh in favor of fair use where, as here, the amount of copying was tethered to a valid, and transformative, purpose.
Finally, the Court found that Google’s new smartphone platform was not a market substitute for Java SE. The record also showed that Java SE’s copyright holder would benefit from the reimplementation of its interface into a different market. Finally, enforcing the copyright on these facts risks causing creativity-related harms to the public. When taken together, these considerations demonstrate that the fourth factor—market effects—also weighs in favor of fair use.
In its conclusion, the Court noted that “[t]he fact that computer programs are primarily functional makes it difficult to apply traditional copyright concepts in that technological world.” Nevertheless, the Court applied the principles set forth in Section 107 to “this different kind of copyrighted work.”