Imagine That IP Law Blog

After more than a decade of litigation, the Supreme Court of the United States concluded that Google’s use of Oracle’s software code was fair use.

The dispute centered on use of Oracle’s Java programming language’s application programming interfaces (APIs) and source code, which was used in early versions of Google’s Android operating system. Oracle sued Google, arguing that the APIs were copyrightable. In response, Google asserted a defense of fair use.

Below we share the highlights from the Court’s long-awaited opinion.

A Victory for Fair Use

The Court found in Google’s favor on all of the following factors that a court considers when deciding fair use: (1) the nature of the copyrighted work; (2) the purpose and character of the use; (3) the amount and sustainability of the portion used; and (4) market effects.

The Court found that the declaring code is “inherently bound together with uncopyrightable ideas (general task division and organization) and new creative expression (Android’s implementing code).” As such, the Court found that the nature of the use favors fair use.

The justices found that Google made a transformative use of Oracle’s code, using it to create a new product in a way that was “consistent with that creative ‘progress’ that is the basic constitutional objective of copyright itself.”

Further, the Court found that Google had used only a relatively small portion of Oracle’s code.

Finally, given the costs and difficulties of producing alternative APIs with similar appeal to programmers, the Court concluded that allowing enforcement here would limit the creativity of new programs, thereby risking harm to the public.

Although the justices warned that they were only ruling on the specific code in the case, and not on software generally, the ruling is still a major victory for fair use. The opinion contains language that will likely be helpful for future defendants asserting fair use.

The Issue of Copyrightability Was Left Undecided

Arguably the biggest question before the Court was whether Oracle’s software code was entitled to copyright protection in the first place. To the disappointment of many, the justice’s opted not to rule on the copyright issue at all.

In his analysis of Fair Use, Justice Breyer did state that “the declaring code is, if copyrightable at all, further than are most computer programs (such as the implementing code) from the core of copyright.” These and other statements made in the Opinion seem to suggest that copyright in such code is very limited, if any.

Fair Use is Primarily a Question of Law

Like many patent law doctrines, fair use is a mixed question of fact and law. Google argued that fair use is a question for a jury to decide and that the Court should limit it’s review to determining whether “substantial evidence” justified the jury’s decision.

However, the Court ruled that although reviewing courts should appropriately defer to the jury’s findings of underlying facts, “the ultimate question whether those facts amount to a fair use is a legal question for judges to decide de novo.”