April 05, 2021

Supreme Court Decides Google LLC v. Oracle America, Inc.

On April 5, 2021, the U.S. Supreme Court decided Google LLC v. Oracle America, Inc., holding that Google’s copying of a portion of an Application Programming Interface (API) for Java SE, in which Oracle was presumed to have a copyright for purposes of the Court’s decision, to enable programmers familiar with Java programming language to work with Google’s Android platform constituted “fair use” of Oracle’s software as a matter of law because it copied only those portions of computer code that were needed to allow programmers to work in Google’s new and “transformative” Android platform.

In 2005, Google acquired Android, Inc., and began developing a software platform for use on smartphones. Its developers wrote millions of lines of new code to build that platform. Google hoped to attract software developers to create applications for use on its new Android platform. Many software developers were already proficient with the Java programming language, and were specifically familiar with Oracle’s Java SE platform, which was primarily directed to programs for use in desktop and laptop computers. To allow those programmers to be able to easily work with the new Android platform, Google copied approximately 11,500 lines of code from the Java SE program — specifically from a tool called an “Application Programming Interface,” which allows programmers to use prewritten code to enable their software to perform certain functions.

Oracle sued Google, arguing that Google infringed on Oracle’s copyright when Google copied the 11,500 lines of API code. Google argued that the API is not entitled to copyright protection and that its use of a portion of the API code was “fair use” under the Copyright Act. A jury agreed with Google on the fair-use question and decided that Google’s copying of the code was fair use. On appeal, the Federal Circuit reversed, holding that the fair-use defense was a “mixed question” of law and fact, and that taking the jury’s factual findings in Google’s favor, its use of the API code was not “fair use” as a matter of law.

The Supreme Court reversed and held that Google’s use of the API code was “fair use” as a matter of law. The Court began by assuming for sake of argument that the code was copyrightable, and therefore did not rule on that question. The Court agreed with the Federal Circuit that the question of “fair use” is a “mixed question of law and fact.” The Court held that a reviewing court must break the question into separate factual and legal parts, and review the factual findings for clear error and the legal parts de novo. The Court concluded that the “fair use” question in this case “primarily involve[d] legal work” and that the Federal Circuit correctly left factual determinations for the jury and reviewed the ultimate legal question of fair use de novo.

The Court concluded that the Federal Circuit’s legal ruling was incorrect. The Court considered the four “fair use” factors in the Copyright Act, and concluded that all of them weighed in favor of Google’s fair-use defense.

The Court first determined that the copied API code was “functional in nature” such that it was “further than most computer programs from the core of copyright,” which is to protect the expression of an idea rather than the idea itself. The Court observed that the use of the copied API code “is inherently bound together with uncopyrightable ideas … and new creative expression.” And the value of the copied code, the Court concluded, is “its efforts to encourage programmers to learn and to use [the Java] system so that they will use (and continue to use) [Java] implementing programs that Google did not copy.”

Second, the Court considered the “purpose and character of the use” of the copied code and concluded that it was used to add something new and important — i.e., it was “transformative” — because Google used the code to create new products and new uses for the copied code. And Google, the Court concluded, copied only as much of the Java code as was needed to include tasks that would be useful in smartphone programs.

Third, the Court considered the “amount and substantiality of the portion used,” observing that the 11,500 lines of code constituted only 0.4% of the total Java SE code. And Google copied the lines “not because of their creativity [or] their beauty” of expression, but “because programmers had already learned to work with the [Java] system, and it would have been difficult, perhaps prohibitively so, to attract programmers to build its Android smartphone system without them.”

Fourth, the Court considered the effect of the copying in the “market for or value of the copyrighted work.” The Court stated that this factor can require a court to consider the amount of money that the copyright owner might lose, but it also must consider the source of the loss and the public benefits that will result from the copying. The Court concluded that “the jury could have found that Android did not harm the actual or potential markets for Java SE” and that Oracle would not have been able to enter into those markets regardless of whether Google copied part of the Java code. In fact, Google’s copying may have benefited Oracle, according to the Court, by reinforcing the dominance of Java’s position as a ubiquitous programming language amongst software developers.

The Court therefore concluded that Google’s copying of the Java code was fair use as a matter of law.

Justice Breyer delivered the opinion of the Court, in which Chief Justice Roberts and Justices Sotomayor, Kagan, Gorsuch, and Kavanaugh joined. Justice Thomas filed a dissenting opinion, in which Justice Alito joined. Justice Barrett took no part in the consideration or decision of the case.

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