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19 April 2021
After 10 years of litigation, the Supreme Court has put an end to the copyright case of the century, Google v Oracle, ruling that Google's use of Oracle's application programming interface (API) Java code in the development of its Android operating system is a fair use as a matter of law. In the doctrine-expanding six-to-two opinion, Justices Breyer, Roberts, Sotomayor, Kagan, Gorsuch and Kavanaugh found that all four fair use factors weighed in Google's favour.
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 Standard Edition (SE) declaring code to allow programmers to create the Android operating system in a familiar coding language. Oracle argued that Google's unauthorised use constituted copyright infringement.
At the district court level, the jury was deadlocked as to fair use and the judge decided that the API declaring code was not protected by copyright.
The Federal Circuit reversed, holding that the API's declaring code and organisational structure were 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 had infringed Oracle's copyright.
Google petitioned the Supreme Court, seeking a review of both copyrightability and fair use.
In its 5 April 2021 opinion, the Supreme Court assumed that the code was copyrightable and instead focused only on the fair use defence. The majority opinion found that all four factors of the fair use analysis favoured Google.
First, the court wrote that the "nature of the work at issue" favoured a finding of fair use since the code at issue was part of a user interface, which was concerned with organisation and as such was "bound together with uncopyrightable ideas".
In analysing the second factor, the "purpose and character of the use", the court also found in Google's favour, stating that Google's use was transformative in that it took "only what was needed" from Oracle's code to "work in a new and transformative program" and was therefore consistent with the creative process at the heart of copyright law.
The court wrote that the third factor, "the amount and substantiality of the use", also weighed in Google's favour 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 analysing the fourth factor, the "effect on the market for the copyrighted work", the court found that Google's Android operating system was 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 had erred in not discussing the copyrightability of Oracle's code. They stated that the majority should have found that Oracle's declaring code was copyrightable as an original work in the same way as implementing code and that it was not akin to an uncopyrightable "method of operation", as Google had contended. The dissent also argued that:
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.
For further information on this topic please contact Meaghan Kent or Celyra Workman at Venable LLP by telephone (+1 410 244 7400) or email (firstname.lastname@example.org or email@example.com). The Venable LLP website can be accessed at www.venable.com.
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