On April 5^th, the US Supreme Court decided Google LLC v. Oracle America, Inc. 593 U.S. ___ (2021).  This widely watched case involved Application Programming Interface (API) software that is part of Sun Java SE. The software is owned by Oracle.  Google copied parts of the API for use in its Android operating platform and in doing so Oracle alleged violated Oracle’s copyright.  Two questions were before the Court: (i) could Oracle copyright the lines of API code that Google had copied; and (ii) was Google’s copying of the code permissible as “fair use.”

Google argued that the API could not be copyrighted as it was excluded from copyright under 17 U.S. Code § 102 (b) which provides: “In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.”  In the alternative, Google argued that even if the API were copyrightable its use was permissible under the “fair use” doctrine.  The Court declined to decide on the issue of copyright-ability of the API electing to “assume, for argument’s sake, that the material was copyrightable.”

17 U.S. Code § 107 sets forth a four-part test to determine fair use.  The factors to be considered shall include:

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.

The Court made it clear that fair use is a flexible concept the application of which may vary depending on the context.  The Court also clarified that fair use can present mixed questions of both law and fact and that “a reviewing Court should try to break such a question into its separate factual and legal parts, reviewing each according to the appropriate legal standard.”  The Court held that “[i]n this case, the ultimate “fair use” question primarily involves legal work.”

In applying the fair use test the Court held:

1. That even though the use was commercial in nature it was “transformative” and added something new with a further purpose or different character thereby altering the copyrighted work with a new expression, meaning or message.
2. In analyzing the nature of the copyrighted work, the Court found that the API had three (3) parts:  implementing code, method calls and declaring code.  The API at issue in the case involved only declaring code.  The Court found that declaring code is “further than are most computer programs (such as the implementing code) from the core of copyright” and called into question if declaring code is copyrightable at all.  In coming to its conclusion, the Court stated “[b]ut unlike many other programs, its [declaring code] use is inherently bound together with uncopyrightable ideas (general task division and organization) and new creative expression (Android’s implementing code).”
3. Although Google copied the entirety of the API declaring code this accounted for only a small portion of the total API code. The Court based its calculation of percent of use on the total number of lines of code in the software and not a subset thereof and found only approximately .4% of the total lines of API code were copied.
4. With respect to market effect, the Court held that “[t]he uncertain nature of Sun’s [Oracle’s predecessor] ability to compete in Android’s market place, the sources of its lost revenue, and the risk of creativity-related harms to the public, when taken together, convince that this fourth factor—market effects—also weighs in favor of fair use.”

A copy of the Court’s opinion can be found here: https://spelusolawoffice.com/wp-content/uploads/2021/04/18-956_new_o7jp.pdf.