The U.S. Supreme Court has resolved a major copyright dispute fought for over a decade. It said Google’s copying of about 11,500 lines of Java code for its mobile Android platform was a fair use as a matter of law and not copyright infringement.
Background
The fight between Google and Oracle came from Google’s choices in creating the mobile Android platform. Google used parts of the Java application programming interface technology to maximize accessibility and interoperability. Though Google wrote original code for practically all of the platform, it copied about 11,500 lines of code from Java. Java was developed by Sun Microsystems, which Oracle bought in 2010. The copied Java code allowed programmers fluent in Java to use pre written tasks for their own programs. Without Java, it would have been much more difficult for developers to write software for Android. Most of the software industry relies heavily on APIs.
Oracle sued Google for infringing its copyright over the copied code. A jury found limited copyright infringement, and deadlocked on whether Google’s copying was fair use, a defense to copyright infringement under US law.
The trial court ruled that the type of code was not protected by copyright because it was too functional and was thus a system or method of operation not protectable by US copyright law.
The Federal Circuit reversed on appeal, holding the code was copyrightable, in large part because Google could have created its own functional alternatives.
On remand, the jury determined Google had successfully shown fair use. Oracle again appealed to the Federal Circuit. This time, the Federal Circuit held that whether the facts in evidence constituted fair use was a question of law for the court and decided in Oracle’s favor. The Supreme Court granted review.
The Supreme Court’s Opinion
Notably, the Supreme Court assumed purely for argument’s sake that the entire Java API is subject to copyright. So, the fundamental issue of whether the code is copyrightable remains undecided.
The Supreme Court examined the four statutory fair use factors and found that all four weighed in favor of fair use. The Supreme Court found that the copied code was inextricably bound to the idea of organizing task, the division of computing tasks, and “the use of specific commands known to programmers. Because the copied code was so closely tied to uncopyrightable ideas and functionality, the copied code was far from the creative core of copyright.
At the same time, the uncopied code written by Google for use in smartphones showed substantial creativity. Thus, the factor weighed in favor of finding fair use.
Next, the Supreme Court examined the purpose and character of the use. The Supreme Court noted that while Google copied the code exactly and for the same reason as it existed in Java, Google created a new product. The Supreme Court noted the substantial support of the technology industry for a finding that this type of innovation is a reasonable fair use. The Supreme Court found the purpose and character of Google’s use was transformative, and that factor also weighed in favor of finding fair use.
The Supreme Court then examined the amount and substantiality of the portion used. The Supreme Court determined that the 11,500 copied lines should be viewed as a part of the entire Java API computer codebase, over 2.8 million lines of code. The copied portion of the protected work was approximately 0.4 percent.
The Supreme Court also rejected the Federal Circuit’s conclusion that Google could have achieved Java compatibility by copying only 170 lines of code necessary to write in Java. The Supreme Court reasoned that Google’s legitimate objectives were broader and the other copied lines were necessary for Android programmers to unlock their creative energies and fully take advantage of the Java functionality. Thus, the Supreme Court found this factor also weighed in favor of finding fair use.
Finally, the Supreme Court addressed the market effects. The Supreme Court noted the danger of circularity posed by considering unrealized licensing opportunities in fair use cases because a copyright plaintiff could theoretically have licensed the original material for whatever was the purported infringing use in nearly every case.
Google and Oracle previously discussed a license to use the code, but were unable to agree on terms. The Supreme Court determined that neither Sun’s effort to obtain a license nor Oracle’s conflicting evidence could overcome evidence that it would have been difficult for Sun to enter the smartphone market, even had Google not used portions of the Sun Java API.
The Supreme Court also considered the public interest, finding the copying of the declaring code facilitated programmers’ development and creativity in developing new applications and uses. The Supreme Court determined that the fourth factor also weighed in favor of a finding of fair use.
Ultimately, the Supreme Court found Google’s reimplementation and minimal copying of the Java user interface, taking only what was needed to allow users 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.
What This Means The Supreme Court’s decision continues its efforts to balance the need for technological and creative innovators to make use of existing works, with enabling creators to be compensated for the reuse of their works by others. This decision is consistent with prior decisions on copying for time-shifting purposes and that a commercial use could be a fair use. The decision also affirms the principle that seeking to negotiate a license before claiming fair use should not undermine the argument for fair use.
In the software industry, the decision gives developers flexibility to work with limited amounts of existing, highly functional code when developing new products and services. Outside that industry, the decision shows the importance of the considerations that enter into the fair use balancing test as distinct from generally applicable legal principles. Whether any specific use is a fair use remains a judgment call.