On Monday, Supreme Court Justice Stephen Breyer delivered the opinion of the court in a 6-2 decision siding with Google that Google’s use of portions of Oracle’s Java code constitutes fair use, overturning the Federal Circuit’s ruling that Google had breached copyright law through its purported use of the code in Android.
In October, the Supreme Court heard the suit arising from Google’s alleged copyright infringement of Oracle’s code. Specifically, Oracle claimed that Google used approximately 11,500 lines of Oracle’s Java application programming interface (API) code without a license to make its Android operating system. Google claimed that this code constituted 0.1% of the Android code and that it later developed an alternative to the code; thus, according to Google, this was fair use, and incorporation of the code into something made it new.
The case concerned two questions: “(1) whether Java SE’s owner could copyright the copied lines from the API, and (2) if so, whether Google’s copying constituted a permissible ‘fair use’ of that material freeing Google from copyright liability.”
The majority opinion noted that “(t)his case implicates two of the limits in the current Copyright Act,” namely copyright protection and fair use. The opinion stated that “the Court assumes for argument’s sake that the copied lines can be copyrighted, and focuses on whether Google’s use of those lines was a ‘fair use.’ ” Accordingly, the Court examined the Copyright Act’s fair use provision factors: “the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work.”
First addressing the purpose and character of the use, the Supreme Court stated that this factor depends on whether the use was transformative. According to the court, “Google’s limited copying of the API is a transformative use” because “Google copied only what was needed to allow programmers to work in a different computing environment without discarding a portion of a familiar programming language. Google’s purpose was to create a different task-related system for a different computing environment (smartphones) and to create a platform – the Android platform – that would help achieve and popularize that objective.” This factor weighed in favor of fair sue.
The justices also found that “(t)he nature of the work at issue favors fair use” because the copied code lines “are part of a ‘user interface’ that provides a way for programmers to access prewritten computer code through the use of simple commands.” Thus, “(a)s part of an interface, the copied lines are inherently bound together with uncopyrightable ideas (the overall organization of the API) and the creation of new creative expression (the code independently written by Google).” The justices added that “application of fair use here is unlikely to undermine the general copyright protection that Congress provided for computer programs.”
The court reviewed the amount and substantiality of the copied lines, noting that the 11,500 lines “are only 0.4 percent of the entire API at issue, which consists of 2.86 million total lines,” thus the court viewed this “as one small part of the considerably greater whole.” Consequently, this factor additionally weighs in favor of fair use because “the amount of copying was tethered to a valid, and transformative, purpose.”
Lastly, looking to the effect of the copying in the “market for or value of the copyrighted work,” the court stated that “Google’s new smartphone platform is not a market substitute for Java SE,” among other things, so this also weighs in favor of fair use.
The Supreme Court held that “Google’s copying of the JAVA SE API, which included only those lines of code that were needed to allow programmers to put their accrued talents to work in a new and transformative program, was a fair use of that material as a matter of law.”
Justices Clarence Thomas and Samuel Alito dissented while Justice Amy Coney Barrett did not participate in the matter. In the dissent, Justice Clarence Thomas asserted that the nation’s highest court creates an unsound distinction between implementing code and declaring code, adding that the majority distorted its fair use analysis by disregarding the question of copyrightability. Justice Thomas argued that declaring code is protected by copyright, as did the Federal Circuit.
“By skipping copyrightability, the majority gets the methodology backward, causing the Court to sidestep a key conclusion that ineluctably affects the fair use analysis: Congress rejected categorical distinctions between declaring and implementing code,” the dissent stated. “But the majority creates just such a distinction. The result of this distorting analysis is an opinion that makes it difficult to imagine any circumstance in which declaring code will remain protected by copyright.” Justice Thomas added that “(c)omputer code occupies a unique space in intellectual property,” noting that Congress protects declaring code and computer programs with copyright protection as found in The Copyright Act.
Google is represented by Goldstein & Russell P.C., Williams & Connolly LLP, Keker Van Nest & Peters LLP, Kwun Bhansali Lazarus LLP, and King & Spalding LLP. Oracle is represented by Orrick, Herrington & Sutcliffe LLP and Kirkland & Ellis LLP.