Google LLC v Oracle America, Inc. (No. 18-956)
A lengthy lawsuit over the ownership of the popular computer language Java has wrapped up in a highly anticipated ruling from the US Supreme Court. A series of contradictory decisions from lower courts left the tech and legal communities waiting for clarification on the copyrightability of software. Although somewhat less disruptive than expected, the ruling confirms that traditional copyright laws must be adapted to the context of software, which is primarily functional in nature.
Background
Oracle America, Inc. (“Oracle”) owns copyright in Java SE, a software platform that allows developers to write computer applications in Java that will run on any desktop or laptop computer, regardless of the underlying hardware. Since Java was used ubiquitously by computer programmers, Google LLC (“Google”) wanted Android developers to be able to code in Java too. When licensing talks with Oracle failed, Google wrote its own software platform that was tailored to smartphones. Included in Google’s code was about 11,500 lines of code copied directly from the Java SE application programming interface (API).
In 2010, Oracle sued Google in the United States for copyright infringement. Google argued that it was shielded from liability by the “fair use” doctrine. A jury sided with Google on this matter, but their decision was overturned by the Federal Circuit.
Fair Use Doctrine
In the United States, the Copyright Act is intended to encourage authors to develop original works by providing a time-limited monopoly over that work. However, the strict imposition of monopolies can have the opposite effect by allowing copyright holders to stifle creation. To counteract this effect, the Copyright Act permits the “fair use” of a work “for purposes such as criticism, comment, news reporting, teaching… scholarship, or research”. In determining whether to apply the fair use doctrine, courts consider the following four factors:
- the nature of the copyrighted work;
- the purpose and character of use;
- the amount and substantiality of the portion used in relation to the copyright work as a whole; and
- the effect of the use upon the potential market for or value of the copyrighted work.
The majority decision notes that the fair use doctrine is highly contextual and its application should be adapted in light of rapid technological change.
Was Google Protected by Fair Use?
The majority began its analysis with the nature of the copyright-protected work. The portion of the API that Google copied was the declaring code, which is primarily organizational (and therefore uncopyrightable) in nature. [pages 22-24] In contrast, the court found that implementing code is creative in nature, but Google did not copy those sections of the Java API. [page 23]
Commenting on the second factor, the majority first asks whether Google’s use of the copied code “adds something new, with a further purpose or different character”. [page 24] Although portions of the Java code were copied exactly, the purpose was to create new products. [page 25] Besides the copied code, Google’s new platform provided a new collection of tasks operating in a new operating environment: the Android smartphone. [page 26] The court also noted that Google’s purpose was commercial in nature (rather than journalistic or educational) but did not feel that this outweighed the transformative nature of the Android platform. [page 27] A basic constitutional objective of copyright is to encourage creative progress, and Google’s purpose was aligned with this objective.
The majority found that the amount of Java’s API that was copied was also in Google’s favour. This finding hinged on their decision to consider the 11,500 copied lines in the shadow of the entire software platform, rather than in isolation. Relative to the whole, the 11,500 copied lines constitute only 0.4 percent of Oracle’s API. [page 28] As discussed above, the copied lines captured little of the software’s creative expression, which is primarily located in the implementing code. Moreover, Google limited its copying to the minimum need to achieve a Java-based system. Without that copying, Android developers “would need to learn an entirely new system”. [page 8]
Turning to the final factor, the court determine that Google’s copying did not harm Oracle’s market outlook. On the evidence, Oracle (then Sun Microsystems) was struggling to enter the mobile phone market and sales were in the decline. [page 31] In fact, Oracle would ultimately benefit from having Java implemented on Android devices. [page 32]
On a balance of the factors, the court sided with Google, finding that its use of the copied code amounted to fair use. The intent behind the fair use doctrine is to encourage creative expression, and Google’s purpose was therefore consistent with that creative progress, which is the basic constitutional objective of copyright.
Commentary
It would be premature to say that this decision “eviscerates” copyright, as claimed in the dissenting opinion. In the wake of this decision, parties seeking to follow Google’s success will not find it substantially easier to circumvent copyright protections for software. It took approximately 100 Google engineers 3 years to build the Android platform. [page 3] Moreover, Google’s copying was justified in part because of the widespread popularity of Java and the non-expressive nature of declaring code. The same logic is unlikely to extend to many other instances of software copying.
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