Supreme Court Finds Copying Of Computer Code A Fair Use
On April 5, 2021, the Supreme Court of the United States issued an opinion reversing a decision by the Court of Appeals for the Federal Circuit (CAFC) that had found Google liable for copying elements of Oracle’s Java computer code. Google LLC v. Oracle Inc., No. 18-956, 593 U.S. ____ (2021). According to the Court, Google’s copying, which was limited to only those lines of code needed to enable Java programmers to create new and transformative programs, was a fair use as a matter of law.
The Court’s decision resolves a closely watched and long running dispute between the parties. In this dispute, Oracle has asserted that Google committed copyright infringement when it copied roughly 11,500 lines of Oracle’s Java computer code. The copied code is part of a tool called an Application Programming Interface (API) that allows programmers to call upon prewritten computing tasks for use in their own programs. Google has maintained that the copying was necessary to allow millions of programmers already familiar with the Java programming language—a language primarily used for creating desktop and laptop computer applications—to write code for Google’s new Android programming environment designed for smartphones. The CAFC sided with Oracle, held that the copied code is copyrightable, and further held that Google’s copying did not constitute fair use. Google petitioned for a writ of certiorari, seeking review of the CAFC decision, which the Court granted.
In its petition, Google first asked the Court to find the copied API code akin to a purely functional “method of operation” that is outside the scope of protection under the Copyright Act, 17 U. S. C. §102(b). In the alternative, Google argued that its copying was a permissible “fair use” of a copyrighted work per §107 of the act.
The Court decline to rule on the question of copyrightability, and instead assumed, for argument’s sake, that the copied Java API code was copyrightable. The Court then proceeded to analyze whether Google’s actions constituted “fair use.”
First, the Court confirmed that, when considering the question of fair use on appeal, a mixed question of fact and law, courts should appropriately defer as to questions of fact, but should review de novo the legal question of whether those facts amount to a fair use. The Court then proceeded with its de novo review by examining the four “fair use” factors set forth in the Copyright Act.
The Court found that the first factor—the nature of the copyrighted work at issue—favored a finding of fair use. The copied lines of API code comprise what the Court referred to as “declaring code” that labels the particular tasks, or “methods,” made available to programmers, and organizes them into “packages” and “classes.” This declaring code provides a way for programmers to access separate code that the Court referred to as the API “implementing code,” which actually instructs the computer on how to carry out each task or method. According to the Court, the declaring code is inherently bound together with uncopyrightable ideas (the overall organization of the API) and the creation of new creative expression (Google’s independently written “implementing code”). The Court further noted that the value of the copied declaring code is in significant part derived from the investment of computer programmers who have learned the API’s system, rather than in the code itself. Given these distinctions, the Court concluded that the nature of the copyrighted work favored a finding of fair use, and that such a finding would not undermine the general copyright protection afforded computer programs.
The Court found that the second factor—the purpose and character of the use—also weighed in Google’s favor. The Court noted that Google copied only what was needed to allow Java programmers to develop programs for new smartphone devices and to create a platform—the Android platform—that would help achieve and popularize that objective. So, concluded the Court, Google’s use was transformative and consistent with that creative “progress” that is the basic constitutional objective of copyright itself.
With respect to the third fair-use factor—the amount and substantiality of the portion used in relation to the copyrighted work as a whole—the Court noted that the 11,500 lines of copied declaring code constituted only 0.4% of the entire Java API code. The Court also noted that Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment. Taken together, the Court concluded that this factor too weighed in Google’s favor.
With respect to the fourth and final fair-use factor—the effect of the use upon the potential market for or value of the copyrighted work—the Court again sided with Google. In weighing this factor, the Court was swayed by the facts that, according to the record, Google’s Android platform was not a market substitute for Java and that Oracle was ill-prepared to enter the smartphone market on its own. The record also showed that Oracle would benefit from the reimplementation of its interface in the smartphone environment as it would further expand the network of Java-trained programmers. The Court also expressed concern that enforcing the copyright on these facts would risk causing creativity-related harms to the public.
In a dissenting opinion, Justice Thomas argued that the Copyright Act expressly recognized computer programs, including declaring code, as copyrightable. Justice Thomas further concluded that Google’s actions did not constitute fair use, because three of the four statutory fair-use factors—all but the nature of the work—favored Oracle.