The Supreme Court says that Google’s use of Oracle’s copyrighted software was fair use, reversing Federal Circuit

On Monday, April 5, 2021, the Supreme Court ruled in favor of Google in a dispute over Google’s use of Oracle’s copyrighted software in its Android platform, because the use was protected under the “fair use” doctrine.

The case arose out of Google’s use of portions of Oracle’s Java SE software, which Google integrated into its Android app development platform. The software at issue – so-called “declaring code” – “enables a set of shortcuts for programmers,” forming a link with so-called “method calls,” and allowing a programmer “to draw upon [] thousands of pre-written tasks,” written in so-called “implementing code.”¹ Google wrote its own “implementing code” for task-performance, but made use of Oracle’s declaring code – which was well known to programmers experienced with Oracle’s system – so that programmers would not have to learn a new programming language to build on Google’s Android platform.² After a long and complex history involving two trials and two appeals, the Supreme Court agreed to consider the questions of whether Oracle’s software – including the declaring code – qualifies as copyrightable material under U.S. copyright law, and whether Google’s use of the software is protected under the fair use doctrine. The Federal Circuit held below that the software at issue was copyrightable and that Google’s use of the software was not a fair use as a matter of law.³

Justice Breyer, writing for a 6-2 majority, only addressed the fair use issue, specifically declining to take a position on the copyrightability issue.⁴ The Court noted that “[g]iven the rapidly changing technological, economic, and business-related circumstances,” underlying the copyrightability question, it “should not answer more than is necessary to resolve the parties’ dispute.”⁵ Accordingly, the Court “assume[d], but purely for argument’s sake” that the software at issue was copyrightable, thus leaving intact the Federal Circuit’s opinion below on that issue.

Before turning to the merits of the fair use claim, the Court first rejected Google’s argument that the Court’s analysis should be limited to whether the jury’s decision on fair use was supported by substantial evidence. The Court acknowledged that fair use involved “subsidiary factual questions,” but held that ultimately it is a legal question which should be reviewed de novo.⁶

In view of the four statutory factors which must be weighed in a fair use analysis, the Court then held that Google’s use of Oracle’s copyrighted material fit the criteria for fair use. The Court first evaluated the nature of the copyrighted material, concluding that the declaring code that Google used was “functional in nature” and its “use is inherently bound together with uncopyrightable ideas . . . and new creative expression,” and therefore, “further than [] most computer programs . . . from the core of copyright.”⁷ Next, the Court evaluated the purpose and character of Google’s use, describing it as “seek[ing] to create new products” by “offer[ing] programmers a highly creative and innovative tool for a smartphone environment.”⁸ In other words, “Google’s copying was transformative,” and in the Court’s view, “consistent with that creative ‘progress’ that is the basic constitutional objective of copyright itself.”⁹ The amount of the copyrighted material used also weighed in favor of fair use; of the 2.86 million lines of code in Oracle’s Java SE program, Google used only 11,500. Finally, the market effect of Google’s use suggested fair use because, while Google has profited from its Android app development platform, Oracle’s software only made up a small portion of that platform. Moreover, Oracle was never in a position to compete with Google in the smartphone industry.

Justice Thomas, joined by Justice Alito, dissented, characterizing Oracle’s software as a valuable asset that it worked hard to develop and which Google brazenly copied after licensing negotiations dissolved.¹⁰ The dissent also attacked the majority’s distinction between declaring code and implementing code, as Congress explicitly included declaring code in its definition of ‘computer program’ under the Copyright Act.¹¹