April 05, 2021

Supreme Court Weighs in on Fair Use, Finding Google's Use of Java SE API Is Fair

3 min

After 10 years of litigation, the Supreme Court put an end to the "copyright case of the century," Google v. Oracle, ruling that Google's use of Oracle's Application Programming Interface Java code in the development of its Android operating system is a fair use as a matter of law. In the doctrine-expanding, 6-2 opinion, Justices Breyer, Roberts, Sotomayor, Kagan, Gorsuch, and Kavanaugh found all four fair use factors weighed in Google's favor.

This ruling follows a decade-long dispute between the tech giants over Google's Android operating system, which was developed using approximately 11,500 lines of Oracle-developed Java SE declaring code to allow programmers to create the Android operating system in a familiar coding language. Oracle argued that Google's unauthorized use constituted copyright infringement. At the district court level, the jury was deadlocked as to fair use, and the district court judge decided that the API declaring code is not protected by copyright. The Federal Circuit reversed, holding that the API's declaring code and organizational structure are copyrightable and remanded for a trial as to fair use. On remand, the jury found fair use. The Federal Circuit reversed again, finding no fair use as a matter of law and determining that Google infringed Oracle's copyright. Google petitioned the Supreme Court, seeking review of both copyrightability and fair use.

In today's opinion, the Supreme Court assumes that the code is copyrightable and focuses instead on only the fair use defense. The majority opinion finds that all four factors of the fair use analysis favor Google. First, the Court writes that the "nature of the work at issue" favors a finding of fair use, since the code at issue was part of a user interface, which is concerned with organization, and as such was "bound together with uncopyrightable ideas." In analyzing the second factor, the "purpose and character of the use," the Court also finds in favor of Google, stating that Google's use is transformative in that it took "only what was needed" from Oracle's code to "work in a new and transformative program" and is therefore consistent with the creative process at the heart of copyright law. The Court writes that the third factor, "the amount and substantiality of the use" weighs in favor of Google as well, since the 11,500 lines of code were part of a 2.86-million-line program, constituting only 0.4% of the API at issue. Finally, in analyzing the fourth factor, the "effect on the market for the copyrighted work," the court finds that Google's Android operating system is not a market replacement for Oracle's Java SE program, and that enforcing Oracle's copyright would cause creativity-related harms to the public.

Justices Thomas and Alito dissented, stating that the majority erred in not discussing the copyrightability of Oracle's code at all, and that it should have found that Oracle's declaring code is copyrightable as an original work in the same way as implementing code, and is not akin to an uncopyrightable "method of operation," as Google contended in its argument. The dissent also argues that the majority's failure to address the unqualified copyrightability of declaring code distorts the fair use analysis, and argues that all four factors actually favor Oracle, largely because of the qualitatively substantial use Google made of the API, and that Google essentially sidestepped Oracle's licensing scheme by reusing its code, resulting in substantial market harm.

This decision has the potential to broaden the doctrine of fair use significantly. In the software industry, it may result in expanded development and use of third-party code. In other industries, it similarly may broaden the doctrine of fair use and creates significant questions for content creators. If your organization has any questions about how this ruling impacts its own content creation or enforcement, please contact the authors of this alert or any other attorney in Venable's Advertising, Brands, and Content Group.