By: Alex Butterman

On April 5, 2021, the United States Supreme Court decided the case of Google, LLC v. Oracle America, Inc. in favor of Google by a 6-2 majority, with Barrett not participating. Oracle owns a copyright in Java, a popular computer programming language that arguably has a lot of functional or “useful” features needed by programmers. In order to build a new software platform for Android mobile devices, Google copied roughly 11,500 lines of Java code. This code allowed Google developers to access other prewritten code using simple commands. The case turned on whether this was “fair use” of the Java code, thus shielding Google from copyright liability, because Google needed this code to develop its unique Android operating system.

In its analysis of the case, the Court first looked at the purpose of copyright. The opinion discussed the concept that copyright can be limited to ensure it does not harm the public interest and went on to opine that this case implicated two copyright limits; first, that copyright doesn’t apply to “any idea, procedure, process, system, method of operation, concept, principle or discovery…” and second, that “fair use” of copyrighted material is not protected. The Supreme Court first assumed without deciding that the code in question was copyrightable, as had been decided in lower courts. This was a point criticized by the dissent of Justices Thomas and Alito, and a disappointment to the interested public, who wanted the Court to decide whether Application Programming Interfaces, or API, are too functional to be protected by copyright. Instead, the Court analyzed only whether Google’s utilization of this code in their programming was “fair use, which is a defense to copyright infringement.

The “fair use” exception to copyright is an “equitable rule of reason that permits courts to avoid rigid application of the copyright statute when it would stifle the very creativity which, on occasion, that law is designed to foster.” The court specified that fair use is a flexible doctrine, in that it may change over time, particularly relative to technology. In this case, the platform Google envisioned was one arguably infused with creativity. The Court detailed:

Google envisioned an Android platform that was free and open, such that software developers could use the tools found there free of charge. Its idea was that more and more developers using its Android platform would develop ever more Android-based applications, all of which would make Google’s Android-based smartphones more attractive to ultimate consumers. Consumers would then buy and use ever more of those phones.

As the exception allows use of material for a functional purpose, computer programs are particularly amenable to trigger the fair use exception. Allowing the fair use of such material can keep a monopoly from burdening the public interest. In addition, the question of whether something constitutes a fair use under the Copyright Act is a mixed question of law and fact; as such, a higher court is free to examine facts found by a lower court to determine whether they meet the fair use exception standard.

The court then examined fair use using the four guiding factors in the Act itself; “1) the purpose and character of the use, 2) the nature of the copyrighted work, 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and 4) the effect of the use upon the potential market for or value of the copyrighted work.” The weight of each factor may change based on the context of the case. In other words, this is a highly fact-specific analysis that can be difficult to generalize from one case to another.

The Court found that the code in question was different from other types of code in that it wasn’t used to create tasks in computing. Instead, this code is part of a user interface called an Application Programming Interface. The interface lets programmers use basic commands to access other prewritten code. The value of this code is in its ability to be used as a tool by a developer well versed in the API’s structure and function. Because the copyrighted lines are inherently bound with uncopyrightable material, like the programmers’ knowledge, the nature of the code weighs in favor of fair use.

In examining the “purpose and character” factor, the court noted that the issue turned on whether the use was “transformative,” or whether it “adds something new, with a further purpose or different character.” The Court determined that this factor also weighed in favor of fair use as the purpose of using the code was to create an entirely new and different system and to create a new Android platform in another computing environment—namely, smartphones. Because the use “can further the development of computer programs,” the Court found it transformative, which also favors fair use.

The 11,500 lines in question allowed Google to use hundreds of different basic computing commands, yet they made up only 0.4% of the entire API. When the Court looked at the “amount and substantiality of the portion used” in the case, they noted that it was a small part of the “considerably greater whole.” The Court went on to discuss that these lines were not used for their “creativity or beauty” but to allow skilled developers to create a new computing environment. Balanced against the small amount of code used, this factor also weighed in favor of fair use.

Finally, the Court examined the effect of Google’s new platform on the “market for or value of the copyrighted work.” Here, the new platform was not a direct competitor of the Java code—it was an entirely new application. Because of this, the Court determined that the usage was a benefit for the copyright holder as its material was being reimplemented in a different market. In addition, as the public would suffer “creativity-related harms” without such use, the Court found that the “market effects” also supported fair use.

The Court noted that Google only used what Java code was necessary for their programmers to apply their learned abilities “to work in a new and transformative program” and that the functionality of the code in question made applying traditional copyright concepts difficult. Nevertheless, the Court applied previous cases and the factors in the Act itself and determined that Google’s copying of the Java code was a “fair use” of it as a matter of law. As such, the legal conclusion of this case was that Google did infringe Oracle’s copyright rights, but Google’s fair use of the code exonerated it from infringement liability.

Justices Thomas and Alito viewed Google’s actions a little more cynically in their joint dissenting opinion. They noted that “Oracle spent years developing a programming library that successfully attracted software developers,” and when Google and Oracle could not agree on the terms of a license agreement for Google’s use of some of the code, Google blatantly stole a portion of the code to develop its Android system. Moreover, this Android system became the biggest mobile operating system in the world.

So which party behaved reasonably and unreasonably? Or does the end justify the means?

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About the Author

Alex Butterman is Senior Counsel at Dunlap Bennett & Ludwig. His practice covers all facets of trademark prosecution and practice before the U.S. Patent and Trademark Office (USPTO) and virtually every trademark office around the world with the help of an extensive network of foreign associates. Mr. Butterman has been representing a diverse group of foreign and domestic businesses in a variety of industries and commercial sectors since 1995 while working in several intellectual property boutique law firms and consulting with the in-house trademark group of a multi-national hospitality industry company. Mr. Butterman counsels businesses at all stages of development, assessing and searching the availability of marks; establishing, enforcing and maintaining trademark and service mark rights; resolving intellectual property disputes; handling internet domain name IP issues, anti-counterfeiting matters, copyright prosecution, IP licensing and transactional matters, and intellectual property research and due diligence investigations. 

To learn how Mr. Butterman can assist you with your legal needs, click here.

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