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Google v. Oracle and Its Implication on Fair Use

Jul 1, 2021 | Firm News

Authors: Kyle Doerrler and Adam Szymanski

What was Google v. Oracle about?

Oracle America, Inc., owns a copyright in Java SE, a computer platform that uses the popular Java programming language for development and deployment of portable code. Back in 2005, Google acquired Android and wanted to build a new software platform for mobile devices that would be familiar to programmers. To accomplish this goal, Google copied about 11,500 lines of code directly from the Java SE Application Programming Interface (API). APIs are common programming tools that allow programmers to call upon computing tasks prewritten by others for use in their own programs, greatly simplifying the software development process and allowing for more standardized communication and coordination across different software programs.

The U.S. Supreme Court addressed two issues in Google v. Oracle. The first issue was whether Oracle could in fact copyright the lines from the Java SE API; and, if so, the second issue was whether Google’s copying parts of the Java SE API constituted a permissible “fair use” of that material thereby negating copyright liability.

Previously, the Federal Circuit held that the lines copied by Google were copyrightable, and a jury then found that Google’s copying was fair use. The Federal Circuit reversed, concluding that Google’s copying was not a fair use as a matter of law. Before damages could be determined by a lower court, the Supreme Court agreed to review the Federal Circuit’s determinations as to both copyrightability and fair use.

What did the Supreme Court decide?

Regarding copyrightability, the first issue, the Supreme Court chose “to decide no more than is necessary to resolve this case” and assumed for argument’s sake that the copied lines can be copyrighted. This choice punted on the larger issue of whether computer code can be copyrightable and if so, what limits, if any, exist. The decision to “not to decide” the copyrightability issue highlights the widening gap between the law and the state of technology when it comes to computer software.

In addressing the second issue of whether the copying was fair use, the Supreme Court applied the well-known 4-factor test which includes: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount or sustainability of the portion used; and (4) the effect of the use on the potential market for or value of the work. Ultimately, the Supreme Court found in favor of Google on each of these factors.

How does this affect Tech?

The Court’s fair use interpretation does raise some questions. In their decision, the Court determined Google’s purpose was to create a different task-related system and platform for a different computing environment (smartphones). The Court found that this purpose, and reimplementation of the API, was consistent with the basic constitutional objective of copyright itself—promoting the progress of the creative arts. The Court appears to suggest that taking code primarily used in development for one computing environment and applying it to another is a large step towards a transformative use.

The Supreme Court’s decision is seen by many as lowering the bar for when fair use can be relied upon as a defense to copying, and is generally seen as a win for both start-ups and open-source software developers, where the industry-wide practice of reusing APIs created by others has long been in place. But the decision was particularly dependent on the facts of the case, as the Court’s decision repeatedly calls out, so it is not clear where the line is drawn between what is fair use and what is “unfair” use.

While the ruling has increased the legitimacy of the fair use defense, those in the industry should continue to be vigilant of license agreements and how APIs are incorporated into their own work. With that caveat in mind, the net effect of the Google v. Oracle decision should allow for more integration of copyrighted materials into software development so long as the use of copied code is transformative. One area where this will be particularly relevant is interoperability between devices and programs. As technology becomes more intertwined, the ability for developers to integrate their own products and platforms into larger systems by incorporating APIs can help spur innovation. Ultimately, claiming fair use is likely to become more common and the widespread use of APIs is unlikely to wane.

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