In Brief:  After years and years of litigation, the Supreme Court decided that Google’s use of Oracle’s programming software code was fair use.

Here’s What Happened: Oracle America, Inc. owns the copyright to the Java computer language. In 2005, Google LLC acquired Android and wanted to build a new software platform for mobile devices. To allow the programmers familiar with Java to help build the platform, Google copied about 11,500 lines of code from the Java program. These lines of code are part of a programming tool called that’s called an “Application Programming Interface (API)”. 

Oracle sued for copyright infringement.

The lower court held that the lines of code were copyrightable. A jury found that Google was permitted to use the code on the basis of fair use. The Federal Circuit Court of Appeals reversed the finding of fair use and remanded the case for a trial on damages. The US Supreme Court took up the case before the damages trial.

The Supreme Court reversed the Federal Circuit Court and remanded the case back to the trial court.

The Supreme Court acknowledged a copyright owner’s monopoly on the use of the works. But, the Copyright Act’s fair use factors allow use of the work under certain conditions. So fair use plays an important role as a “context-based check” that curbs the copyright monopoly. The Supreme Court analyzed the four factors of fair use but in non-traditional order. Looking at the second factor, the nature of the work first, the Supreme Court held that a computer program intertwines creative expression with resulting non-copyrightable programming functions. So the second factor weighs in favor of fair use. Next, the Supreme Court held that the purpose and character of the use weighed in favor of fair use because it was “transformative”. Google used the API to create different task-related systems for the Android platform. The third factor weighed in favor of fair use because Google only used the lines of code that were needed to create the platform. The fourth factor that focuses on the market effect also weighed in favor of fair use because Google’s new platform was not a substitute for the Java code. The Supreme Court also appeared to add a “public harm” factor which isn’t an enumerated part of the four factor fair use test. The Supreme Court held the risk of causing relativity-related harms to the public weighed in favor of fair use.

WHY YOU SHOULD KNOW THIS: This decision gives a little more clarity to what transformative use means. If you repurpose and change the original, that’s transformative. But the courts seem to grapple with how much of a change has to happen. So building on a computer programming platform to create something new is transformative but painting over a photograph isn’t transformative (see last week’s post).  In any case, always tread carefully when using the copyrighted work of another. At the very least, get an opinion from an attorney.

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