On April 5, 2021, the Supreme Court rendered its decision in Google LLC v. Oracle America, Inc., the long-running software copyright case. The Court sided with Google in a 6-2 opinion, holding that Google’s copying of the Java API code constituted fair use. Justice Breyer wrote the majority opinion for the Court and was joined by Chief Justice Roberts, Justice Sotomayor, Justice Kagan, Justice Kavanaugh, and Justice Gorsuch. Justice Thomas wrote a dissenting opinion and was joined by Justice Alito. Justice Barrett did not participate in the case. Here is a summary of the majority and dissenting opinions.
The majority opinion, authored by Justice Breyer, began with a recap of the “complex and lengthy history” of the parties’ dispute and with an explanation of the technology. And while this decade-old battle ultimately boiled down to two central questions in Google’s petition– the copyrightability of Java’s API and whether Google’s copying constituted fair use–the majority only answered one. The majority decided that “[g]iven the rapidly changing technological, economic, and business-related circumstances, we believe we should not answer more than is necessary to resolve the parties’ dispute.” Accordingly, the majority assumed that the API was copyrightable and only addressed the issue of fair use.
Before beginning the fair use analysis, the majority first addressed Justice Thomas’s dissent. The majority argued that “[b]y defining computer programs in § 101, Congress chose to place this subject matter within the copyright regime” and thus, the exclusive rights in computer programs must be subject to the limiting doctrines, just like any other work. Moreover, according to the majority, “[j]ust as fair use distinguishes among books and films, which are indisputably subjects of copyright, so too must it draw lines among computer programs. And just as fair use takes account of the market in which scripts and paintings are bought and sold, so too must it consider the realities of how technological works are created and disseminated. We do not believe that an approach close to ‘all or nothing’ would be faithful to the Copyright Act’s overall design.”
The majority agreed with the Federal Circuit and clarified that fair use is a mixed question of law and fact. Accordingly, the Court deferred to the jury’s factual determinations and reviewed the ultimate legal question of fair use de novo. The majority also rejected Google’s argument that this approach violates the Seventh Amendment because “the ultimate question here is one of law, not fact” and “[i]t does not violate the Reexamination Clause for a court to determine the controlling law in resolving a challenge to a jury verdict, as happens any time a court resolves a motion for judgement as a matter of law.”
The majority analyzed the fair-use issue by walking through the four factors set forth in the fair use statute:
Starting with the second factor–“The Nature of the Copyrighted Work”–the majority concluded that
the declaring code differs to some degree from the mine run of computer programs. Like other computer programs, it is functional in nature. But unlike many other programs, its use is inherently bound together with uncopyrightable ideas (general task division and organization) and new creative expression (Android’s implementing code). . . . In our view, for the reasons just described, the declaring code is, if copyrightable at all, further than are most computer programs (such as the implementing code) from the core of copyright. That fact diminishes the fear, expressed by both the dissent and the Federal Circuit, that application of ‘fair use’ here would seriously undermine the general copyright protection that Congress provided for computer programs. And it means that this factor, ‘the nature of the copyrighted work,’ points in the direction of fair use.
Next, the majority analyzed the first factor–“The Purpose and Character of the Use”–and concluded that it too weighed in favor of fair use. Justice Breyer was convinced that the purpose and character of Google’s copying was indeed transformative. Moreover, while the Court conceded that Google’s use was a commercial endeavor, it determined that commerciality is “not dispositive of the first factor, particularly in light of the inherently transformative role that the reimplementation played in the new Android system.”
The majority then turned to the third factor–“The Amount and Substantiality of the Portion Used”–concluding that
[s]everal features of Google’s copying suggest that the better way to look at the numbers is to take into account the several million lines that Google did not copy. For one thing, the Sun Java API is inseparably bound to those task-implementing lines. Its purpose is to call them up. For another, Google copied those lines not because of their creativity, their beauty, or even (in a sense) because of their purpose. . . . We do not agree with the Federal Circuit’s conclusion that Google could have achieved its Java-compatibility objective by copying only the 170 lines of code that are ‘necessary to write in the Java language.’ [] In our view, that conclusion views Google’s legitimate objectives too narrowly. . . . In a sense, the declaring code was the key that it needed to unlock the programmers’ creative energies. And it needed those energies to create and to improve its own innovative Android systems. We consequently believe that this ‘substantiality’ factor weighs in favor of fair use.
Lastly, the majority analyzed the fourth factor–the market effects–and concluded that
the evidence showed that Sun’s mobile phone business was declining, while the market increasingly demanded a new form of smartphone technology that Sun was never able to offer. . . . The uncertain nature of Sun’s 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.
Summing up the majority’s opinion, Justice Breyer explained:
The fact that computer programs are primarily functional makes it difficult to apply traditional copyright concepts in that technological world. [] In doing so here, we have not changed the nature of those concepts. . . . We reach the conclusion that in this case, where Google reimplemented a user interface, taking only what was needed to allow users to put their accrued talents to work in a new and transformative program, Google’s copying of the Sun Java API was a fair use of that material as a matter of law. The Federal Circuit’s contrary judgment is reversed, and the case is remanded for further proceedings in conformity with this opinion.
The dissenting opinion, authored by Justice Thomas, began with the assertion that “[t]he Court reaches this unlikely result in large part because it bypasses the antecedent question clearly before us: Is the software code at issue here protected by the Copyright Act?” The dissent contends that, by skipping the copyrightability question, the majority’s fair-use analysis was distorted. It is the dissent’s opinion that the declaring code is copyrightable and that “Google’s use of that copyrighted code was anything but fair.”
While the majority opted out of answering the copyrightability question, the dissent analyzed it in full and concluded that the declaring code is indeed protected by copyright. The dissent argued that Congress’s definition of a “computer program” in § 101 of the Copyright Act covers declaring code. And even if it didn’t, according to the dissent, declaring code would still satisfy the general test for copyrightability since it is both a work of authorship and original. Moreover, the dissent rejected Google’s argument that declaring is a “method of operation” and thus excluded from copyright protection by contending that “[b]ecause declaring code incorporates implementing code, it has no function on its own.”
The dissent agreed with the majority that computer programs are not shielded from the ordinary application of fair use. However, the dissent argued that “the majority’s application of fair use is far from ordinary. By skipping copyrightability, the majority gets the methodology backward, causing the Court to sidestep a key conclusion that ineluctably affects the fair-use analysis: Congress rejected categorical distinctions between declaring and implementing code. But the majority creates just such a distinction. The result of this distorting analysis is an opinion that makes it difficult to imagine any circumstance in which declaring code will remain protected by copyright.”
Next, the dissent performed its own fair-use analysis and walked through the four statutory factors:
The dissent likewise started with the second factor–“The Nature of the Copyrighted Work”–and concluded “[b]ecause code is predominantly functional, this factor will often favor copying when the original work is computer code. But because Congress determined that declaring and implementing code are copyrightable, this factor alone cannot support a finding of fair use.” The dissent contended that Congress rejected the categorical distinction made by the majority between declaring and implementing code, which made declaring code less worthy of protection. The dissent also criticized the majority’s distinction as “untenable,” arguing that “[w]e have not discounted a work of authorship simply because it is associated with noncopyrightable ideas.”
Next, the dissent addressed what it considered to be the most important factor–the market effects. According to the dissent, Google’s copying “ruined Oracle’s potential market in at least two ways.” First, the dissent argued that “Google eliminated the reason manufacturers were willing to pay to install the Java platform.” And second, the dissent argued that “Google interfered with opportunities for Oracle to license the Java platform to developers of smartphone operating systems.” The dissent continued on to argue that the majority’s concern about a lock-in effect “makes little sense” since the versions of Android at issue are “close to obsolete.” The dissent also criticized this concern as being “speculation belied in history” since Oracle “never had lock-in power” and “always made its declaring code freely available to programmers.”
To wrap up its arguments on the market effects factor, the dissent asserted that
[i]f the majority is worried about monopolization, it ought to consider whether Google is the greater threat. By copying Oracle’s work, Google decimated Oracle’s market and created a mobile operating system now in over 2.5 billion actively used devices, earning tens of billions of dollars every year. If these effects on Oracle’s potential market favor Google, something is very wrong with our fair-use analysis.
The dissent then turned to what it determined to be the second-most important factor–“The Purpose and Character of the Use.” In the dissent’s view, the “overwhelming commercial nature” of Google’s copying “weighs heavily–if not decisively–against fair use.” The dissent also contended that Google’s use was not transformative since it copied and used the code for the same exact purpose as Oracle. And although the majority acknowledged this fact, the dissent argued that the majority “transform[ed] the definition of ‘transformative’” to mean “a use that will help others ‘create new products.’” The dissent perceived this new definition as “eviscerat[ing] copyright” and alleged that “the majority wrongly conflates transformative use with derivative use.”
Lastly, the dissent analyzed the final factor–“The Amount and Substantiality of the Portion Used”–and concluded
Google does not dispute the Federal Circuit’s conclusion that it copied the heart or focal points of Oracle’s work. [] The declaring code is what attracted programmers to the Java platform and why Google was so interested in that code. And Google copied that code ‘verbatim,’ which weighs against fair use. . . . The declaring code is what attracted programmers. And it is what made Android a ‘market substitute’ for ‘potentially licensed derivatives’ of Oracle’s Java platform. Google’s copying was both qualitatively and quantitatively substantial.
To conclude the dissent’s opinion, Justice Thomas wrote:
In sum, three of the four statutory fair-use factors weigh decidedly against Google. The nature of the copyrighted work—the sole factor possibly favoring Google—cannot by itself support a determination of fair use because holding otherwise would improperly override Congress’ determination that declaring code is copyrightable. The majority purports to save for another day the question whether declaring code is copyrightable. The only apparent reason for doing so is because the majority cannot square its fundamentally flawed fair-use analysis with a finding that declaring code is copyrightable. The majority has used fair use to eviscerate Congress’ considered policy judgment. I respectfully dissent.