Google’s Copyright Victory Under Fair Use: What’s Next For Software Programmers?

By Shelby McCloskey

On April 5, 2021, the Supreme Court changed the future of Copyright Law for collaborative software programming by expanding the fair use doctrine.  Whether this change is more beneficial than not depends on who you ask. For big, monopolized technology companies, such as Google, it is a major victory in expanding creative development in the software industry. However, prior to this decision, smaller software programming companies or individual software programmers have had to obtain a copyright license in the development of their work.  As such, the Supreme Court’s decision in Google LLC v. Oracle America, Inc. has left uncertainty for the future of the fair use doctrine in the software industry.

In 2005, Google entered the mobile market space by acquiring the Android operating system from Android, Inc. To prompt programmers to develop their own programs for the operating system, Google copied roughly 11,500 lines of code from Oracle America, Inc.’s copyrighted JAVA SE Program without permission. JAVA SE is a popular programming platform that uses JAVA programming language in its applications. The lines Google copied into its Android operating system are part of JAVA’s Application Programming Interface (API), which provides an intermediary layer for different pieces of software to communicate with each other through simple commands. This is analogous to an automated robot retrieving a recipe from a filing cabinet and handing the recipe to a cook. Similarly, programmers use an API’s task-related organizational system to create programs through simple commands. Given the popularity of JAVA’s programming language, more programmers were able to seamlessly develop new programs for Android. The Supreme Court’s decision ended this decade long litigation battle over Google’s use of Oracle America, Inc.’s APIs.   

Google argued that using other software application interfaces was standard practice in the software industry and therefore its use of JAVA’s APIs was fair use. Oracle America, Inc., on the other hand, argued that Google stole its copyrighted software and demanded billions of dollars for their infringement. Throughout the decade-long litigation “lower courts have considered (1) whether Java SE’s owner could legally copyright the portion of the software that Google copied, and (2) if so, whether Google’s copying nonetheless constituted a ‘fair use’ of that material, thereby freeing Google from copyright liability.” Although the United States Court of Appeals for the Federal Circuit ruled in favor of Oracle America, Inc. when holding that Oracle’s JAVA APIs is copyrightable and Google’s use of said APIs did not constitute a “fair use”, the Supreme Court ruled in favor of the opposition, holding that Google’s use of the JAVA APIs constituted fair use and therefore did not violate copyright law.

Fair use is an affirmative defense to a copyright owner’s exclusive right to reproduce, display, and distribute copies of a copyrighted work.  This legal doctrine permits the unlicensed use of copyrighted materials in circumstances involving “criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research.” Given that the Supreme Court “assume[d], for argument’s sake, that the [APIs were] copyrightable”, the question turned to whether Google LLC’s use of Oracle America, Inc.’s code fell under this affirmative defense. In determining whether the fair use defense applied in this case, the Supreme Court examined the four statutory factors including: (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or value of the copyrighted work.

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes

The first inquiry poses an important consideration into the extent to which the use is transformative - whether the use “adds something new, with a further purpose or different character.” Google’s purpose in utilizing the APIs was to develop a new product and competitor in the mobile market: the Android operating system. To attract programmers for the development of the product and allow future programmers to easily develop a program for the operating system, it copied lines from JAVA’s APIs. However, it did so “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.” Given that Google’s purpose in copying the lines from the APIs was “consistent with that creative ‘progress’ that is the basic constitutional objective of copyright itself”, the Court supported Google’s fair use defense.

(2)  the nature of the copyrighted work

The primary function of the APIs that Google copied into its operating system is to provide programmers access to prewritten programming language to develop their own programs. This language database, by contrast, differs from ordinary computer programs that provide different functions, such as implementing a code or executing a task. This distinction in program capabilities pointed the Court in the direction of fair use.

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole

When an infringer takes the centerpiece of the copyrighted work, otherwise known as the “heart” of the work, a defense of fair use is likely to fail. This was not the case in Google LLC v. Oracle America, Inc. Although Google copied roughly 11,500 lines of code that allows programmers to access hundreds of different programming tasks, the copied lines only made-up 0.4 percent of the 2.86 million total lined JAVA API at issue in this case. Given that programmers already knew the JAVA language in the copied APIs, and it would be difficult to interest programmers to build the Android operating system without the use of the JAVA APIs, the Court examined the copied material in its entirety to the 2.86 million lines and held that Google’s purpose supported a finding of fair use.

(4) the effect of the use upon the potential market for or value of the copyrighted work

Here, Google’s Android operating system is not a market substitute for JAVA SE. Instead, Google’s use of Oracle America, Inc.’s APIs broadens the implementation of JAVA’s interface into different markets through the Android Operating system, thereby expanding the network of Java-trained programmers rather than attempting to be a market substitute.

After considering these fair use factors, the Supreme Court ruled that Google’s use of the JAVA code constitutes fair use. The 6-2 Supreme Court ruling favors the long-standing process of software reusing, a process of implementing existing code, software, or application interfaces into the update and development of new software programs. Although the Supreme Court’s do not reinvent the wheel approach may benefit technology companies who wish to quickly develop software programs using collaborative software reusing strategies, it may also harm copyright holders, like Oracle America, Inc., who wish to protect their product, profit, and place in the software industry even if the use is incidental.

Although Google copied roughly 11,500 lines of code, its Android operating system comprises of 12 to 15 million lines of code, the remaining of which were written by Google software engineers. As the majority noted, “Google, through Android, provided a new collection of tasks operating in a distinct and different computing environment.” Like Google’s approach, the Supreme Court ruling promotes the collaboration between programmers, developers, and other users through the sharing of existing software interfaces for the update and development of different platforms.

Justice Thomas notes in his dissent, Google’s use of Oracle’s popular JAVA programming language had a “disastrous effect on Oracle’s potential market” in the mobile industry. Prior to Google’s acquisition of Android, Oracle had numerous relations with companies like Amazon and Samsung Electronics. However, after Google released its Android operating system with the unauthorized, implemented JAVA APIs, Oracle America, Inc. quickly lost profits and market share ability. Amazon used Google’s free-use of the APIs to demand a 97.5% discount on its license fee while Samsung Electronics Co. used the free-availability of the APIs to demand a $39 million dollar decrease in their contracts with Oracle. The Supreme Court’s ruling that Google’s use of roughly 11,500 lines of JAVA’s APIs constitutes fair use may disproportionately benefit technology companies with commanding market power, who, like Google, may make billions of dollars while establishing themselves as top competitors in their given industry.

Because the purpose of Copyright law is to incentive social progress through innovation and creativity, the Supreme Court’s ruling in Google LLC v. Oracle America, Inc. upheld this Constitutional notion. This case is a major victory for the fair use defense, but even the greatest victories come at a price. As such, the Supreme Court’s broad application of the fair use doctrine is likely to guide an influx in software reusing, resulting in an increase in software disputes and claims of fair use.