By: Emily R. Parker and Jacob C. Jones

On Monday, the U.S. Supreme Court sided with Google in a long-running, multibillion-dollar copyright lawsuit filed by Oracle over certain portions of software code used in Google’s Android operating system (Android OS). After more than a decade of litigation, the Court ruled that Google made fair use of Oracle’s software code in developing Android OS, freeing Google of copyright liability.

In 2007, Google created Android OS for its mobile devices. To allow programmers familiar with Java programming language to create apps for Android OS devices, Google copied roughly 11,500 lines of code from Java, which is owned by Oracle. The copied lines are part of a tool called an Application Programming Interface (API), which sits between a phone app and the web server, acting as an intermediary layer that processes data and transfers it between systems. Oracle sued Google for copyright infringement. After a jury had sided with Google in 2016, the Federal Circuit reversed, holding that the Java API was copyrightable and Google’s copying was not a fair use. In late 2019, the Supreme Court took the case.

In determining whether Google’s copying was a fair use, the Court examined the four factors set forth in the Copyright Act’s fair use provision: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount of the copyrighted work used, and (4) the effect of the use on the copyrighted work’s potential market.  17 U.S.C. § 107. The Court sided with Google on each of the four factors.

The Court determined that the first factor favored Google because Google took “only what was needed to allow users to put their accrued talents to work in a new and transformative program.” The second factor favored Google because Oracle’s code “is inextricably bound together with a general system, the division of computing tasks, that no one claims is a proper subject of copyright.” The third factor favored Google because Google only copied 0.4 percent of the entire Java API. The fourth factor favored Google because Google’s smartphone platform is not a market substitute for Java. In fact, according to the majority opinion, Java’s copyright holder would benefit from the reimplementation of its interface into a different market. Thus, the Court held that Google’s copying constituted fair use, reversing the decision by the Federal Circuit.

In his dissent, Justice Clarence Thomas accused the majority of having misapplied factor 4 of the fair use provision. He wrote: “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.”

While the tech industry has been eager to hear whether API code is copyrightable, the Court assumed “for argument’s sake” that the code was copyrightable, but declined to decide that question. This ruling appears to allow developers and programmers more room to build upon each other’s products in some scenarios, but at the risk of weakening software copyright protections.