Six months after oral arguments were heard in the matter of Google LLC v. Oracle America, Inc., the Supreme Court of the United States (SCOTUS) has issued a decision.[1] However, despite the nearly unprecedented level of speculation that surrounded what the impact of the Court’s decision would have; the SCOTUS’ holding does not appear to be as groundbreaking or revolutionary as some may have anticipated.

The two major issues in the Google LLC v. Oracle America, Inc[2] case was whether Oracle’s Java programming language's application programming interfaces (APIs) are subject to copyright protection and whether Google’s use of Oracle’s API in connection with the development of the Android operating system was fair use. Although legal scholars and technology industry professionals were convinced that a decision for either party in either issue would have tremendous effects across the global tech industry, the SCOTUS handed down its decision in a narrowly tailored manner which very specifically addresses only the precise set of facts in the Google v. Oracle case. Additionally, rather than rendering a decision on both the copyrightability and fair use issues, the SCOTUS only focused its holding on whether Google’s copying of the Java APIs was fair use.

API’s Copyright Protection

Much to the surprise of many legal analysts, the SCOTUS nearly completely avoided addressing what would have been a landmark precedent in whether or not APIs are subject to copyright protection. Instead, the SCOTUS elected to decide “no more than is necessary to resolve the case” and as such, merely assumed for argument’s sake that the APIs could be copyrighted. In turn, the question over the copyrightability of APIs and other programming code remains as uncertain as it was before the decision in this instant case.

Fair Use

The heart of the decision that was handed down by the SCOTUS focuses on whether Google’s copying of Oracle’s Java APIs was fair use. Although this issue had been decided both for and against a finding of fair use in the lower courts, the SCOTUS issued a decision based upon the application of the facts of the case to the applicable legal precedent.

The Purpose and Character of the Use

At the heart of the fair use factor which analyzes the purpose and character of the use is the question of whether the copier’s use “adds something new, with a further purpose or different character, altering” the copyrighted work “with new expression, meaning or message.”[3]

In this case, the Court explained that Google had copied portions of Oracle’s Java API in order to enable programmers to be able to call up implementing programs which would accomplish particular tasks. Consequently, Google’s purpose was to create a different task-related system that was to be used in a different type of computing platform, namely a smart phone. The Court therefore decided that Google’s purpose was consistent with a sense of creative progress which is the basic constitutional objective surrounding copyright law itself.[4]

In its holding, the Court found that Google had sought to create a new product and to expand the use and usefulness of Android-based smart phones. Additionally, that Court adopted the position that was held by multiple amicus curiae that “allowing reasonable fair use of functional code enables innovation that creates new opportunities for the whole market to grow.”[5] In line with this position, the Court held that the “purpose and character” of Google’s limited copying of the API was a transformative use and that this factor would favor a finding of fair use.

The Nature of the Copyrighted Work

In evaluating the nature of the copyrighted work in the context of determining fair use, the Court noted that “some works are closer to the core of [copyright] than others.”[6] In particular, the Court explained that the type of copyright protection that is afforded to computer programs differs greatly from the copyright protection that other creative works such as music and artwork may be eligible to receive.

The copied lines of Oracle’s Java API code are part of a “user interface” which provides a way for programmers to control task-performing computer programs through the use of simple commands.[7] The Court discussed that as a part of an interface, the copied lines are inherently bound together with uncopyrightable ideas (the overall organization of the API) and the creation of new creative expression (the code independently written by Google). Additionally, the Court noted that the intrinsic value that Oracle derives from its APIs do not arise from the actual APIs themselves, but rather from computer programmers who invest their own time and effort into developing programs from the APIs.

In light of such findings; the Court held that because the very nature of Oracle’s Java API, as declaring code, is intuitively more functional than most other types of computer programs. Therefore, the APIs were much further away from the core of copyright protection, which weighed this factor in favor of a finding of fair use.

The Amount and Substantiality of the Portion Used

When determining the amount and substantiality of the portion of the copyrighted work that was used, the Court has held in previous cases that both “a small amount of copying may fall outside of the scope of fair use where the excerpt copied consists of the ‘heart’ of the original work’s creative expression”[8] and that “copying a larger amount of material can fall within the scope of fair use where the material copied captures little of the material’s creative expression or is central to a copier’s valid purpose.”[9]

In this case, the record reflects that Google had copied approximately 11,500 lines of declaring code from Oracle’s API.[10] However, those 11,500 lines are only 0.4 percent of the entire API at issue, which consists of 2.86 million total lines. In considering “the amount and substantiality of the portion used” in this case, the Court held that the 11,500 lines of code should be viewed as one small part of the considerably greater whole.

The Court also cited to the Campbell decision which provides that “the ‘substantiality’ factor will generally weigh in favor of fair use where, as here, the amount of copying was tethered to a valid, and transformative, purpose.”[11] Here, the Court found that Google’s purpose in copying the Java API was to permit programmers to make use of their knowledge and experience using Oracle’s Java API when they wrote new programs for smart phones with the Android platform. In turn, due to Google having used a relatively minor percentage of Oracle’s Java API lines of declaring code and Google’s purpose being tied to a legitimate transformative use, the Court found this factor in favor of fair use.

The Effect of the Use Upon the Potential Market

The fourth factor in a fair use analysis focuses upon the “effect” of the copying in the “market for or value of the copyrighted work.”[12] Additionally, the Court stated that it is important to not only look at the potential loss of revenue of the owner but also the public benefits that the copying will likely produce.[13]

In evaluating the “potential loss” aspect of this factor, the Court looked at whether Google’s implementation of the Java API into the Android operating system had a negative impact on Oracle. In its discussions, the Court noted that through the evidence that was introduced at trial, it was apparent that Sun (now Oracle) was poorly positioned to succeed in the mobile phone market. Additionally, the evidence also indicated that Java SE’s primary market was laptops and desktops. In light of the evidence indicating that Google’s use of the Java API was in a different sector of the technology industry in which Oracle was not likely to succeed in, the Court found this part of the factor in favor of fair use.

Lastly, in evaluating the public benefit that would likely result from the copying, the Court cited to the decision in Sega Enterprises Ltd. v. Accolade, Inc. which held that “an attempt to monopolize the market by making it impossible for others to compete runs counter to the statutory purpose of promoting creative expression.”[14] Here, the Court found that given the extensive amount of time and resources that programmers had invested in learning the Java API, that to allow Oracle to be able to enforce its copyright here would risk causing harm to the public. Therefore, with Google’s use unlikely to impact Oracle’s potential market and the potential public harm that would follow from a finding against fair use, the Court weighed this factor in favor of a finding of fair use.

Conclusion

Paramount to the Court’s decision in this case is the constitutional principle that copyright and patents are to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”[15] In the Court’s application of the facts in this case to the law, it found that the “progress of science and useful arts” was in fact furthered from Google’s use of Oracle’s API and, with the exception of the potential loss arising from the failed licensing negotiations between the parties, that Google’s creation of the Android operating system posed little if any detriment to the market in which Oracle’s products were focused. 

[1] See Google LLC v. Oracle America, Inc., 593 U. S. _ (20). [2] Id. [3] See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 at 579 (1994). [4] See Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 at 349-350 (1991). [5] Brief for 83 Computer Scientists as Amici Curiae 20. [6] See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 at 586 (1994). [7] See Lotus Development Corp. v. Borland International, Inc., 49 F.3d 807 at 809 (1st Cir. 1995). [8] See Harper & Row v. Nation Enterprises, 471 U.S. 539 at 564-565 (1985). [9] See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 at 588 (1994). [10] See Oracle Am., Inc. v. Google Inc., 886 F.3d 1179 at 1187 (Fed. Cir. 2018). [11] See Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 at 586 (1994). [12] 17 U. S. C. §107(4). [13] See MCA, Inc. v. Wilson, 677 F. 2d 180 at 183 (CA2 1981). [14] See Sega Enterprises Ltd. v. Accolade, Inc., 977 F.2d 1510 at 1523–1524 (9th Cir. 1992). [15] Constitution Art. I, §8, cl. 8.