The US Supreme Court has recently brought a final resolution to the long-running battle between Google and Oracle, siding with the massive search engine and reversing a ruling by the Court of Appeals for the Federal Circuit in doing so. Read on to learn more below about what led the Court to find that Google’s copying of Oracle’s code constituted fair use.

The Court’s decision rested on whether Google’s use of Oracle-owned code constituted fair use. As a refresher, the fair use doctrine states that the use of a copyrighted work by third parties will not constitute infringement under certain circumstances. When deciding whether a use of someone else’s copyrighted material should be considered fair use, courts will examine:

  1. The purpose and character of the use (and whether that use was transformative of the original work),
  2. The nature of the original work,
  3. The amount and substantiality of what was copied, and
  4. The commercial effect from the use on the potential market (market harm) for the original work.

The dispute between Google and Oracle America began a decade ago, with the most recent prior court decision in this case being handed down by the Federal Circuit in 2018. The dispute centered on Google’s copying of over 11,000 lines of code written by Oracle and including this code among the 15 million lines of code constituting Google’s Android mobile operating system. Specifically, Google had copied application programming interfaces (APIs) owned by Oracle to facilitate the use of the Java programming language used by app developers. Oracle sued for copyright infringement, among other claims, and sought billions of dollars in damages. After multiple jury trials and repeat visits to the Federal Circuit, Oracle had been declared the victor. The Federal Circuit ruled that APIs could indeed be copyrighted and that Google’s use was not fair, as “[t]here is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.” Namely, the Federal Circuit found that Google had substantially damaged Oracle’s ability to profit from the code it owned.

Supreme Court avoids copyrightability question and focuses on fair use

After the 2018 Federal Circuit decision, Google petitioned the US Supreme Court to reconsider the Federal Circuit’s decision, specifically asking for a ruling on two questions: 1) Can APIs be copyrighted; and, 2) If so, was Google’s use of Oracle’s APIs fair? The Court granted certiorari (i.e., agreed to hear the case) and reversed the Federal Circuit’s decision. Justice Stephen Breyer, writing for the 6-2 majority (Justice Amy Coney Barrett did not participate in the decision, having not been on the Court for oral arguments in the matter), explained that the Court did not need to rule on whether APIs were copyrightable, as, even assuming they were, Google’s use would be considered fair.

The Court’s opinion began by reasoning through how the doctrine of fair use applies to computer programming, explaining that copyright protection is not as robust where the copyrighted material is “bound up with” uncopyrightable material, such as ideas or systems, as well as the difficulty of applying copyright concepts to something as functional as computer programs. Justice Breyer wrote that copyright protections “‘should not grant anyone more economic power than is necessary to achieve the incentive to create’” and, thus, that “fair use can play an important role in determining the lawful scope of a computer program.”

The opinion went on to conduct a fair use analysis, finding that all four factors favored Google. The court reasoned that Google had made “transformative” use of Oracle’s code by using it in a new mobile software platform, whereas Oracle’s code had primarily been geared toward desktop or laptop computing prior to Google’s use. Google had also made transformative use of the code by writing its own implementing code that interacted with Oracle’s declaring code, thus dispatching with fair use factor one.

As to the second factor, the nature of the copyrighted work, the Court ruled that the declaring code that Google had copied from Oracle was “further than are most computer programs. . . from the core of copyright,” due to the functional nature of that code and the extent to which it was bound up with uncopyrightable ideas.

In examining the third factor, the Court’s opinion focused not on what share of Oracle’s code Google had used, nor at what percentage of the Android platform consisted of Oracle’s code, but instead at whether the sections of code that Google borrowed “consist[ed] of the ‘heart’ of the original work’s creative expression.” The opinion concluded that it did not.

Finally, in looking at the effect on the market for the copyrighted work, the opinion reasoned that, since Oracle had made an unsuccessful attempt at entering the smartphone market (which failed for reasons having nothing to do with Google), Google’s use of Oracle’s code should not be seen as harming Oracle’s market value.