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Publications | April 5, 2021
3 minute read

Will Google’s Fair Use Victory Be Computer Programmers’ Loss?

On April 5, 2021, the U.S. Supreme Court finally brought closure to a decade-long copyright battle between software giants Google and Oracle. In a 6-2 decision, the Court held that Google’s use of certain declaring code from Oracle’s Java programming language in the Android mobile operating system was a fair use, and not an infringement of Oracle’s copyright. In so holding, the Court drew tighter boundaries around the scope of copyright protection available in computer programs.

This outcome may be troubling for computer programmers who rely on copyright law to help prevent the unauthorized copying of their original software. To be sure, the Oracle decision will not make it easier for authors of software to protect their works. But copyright protection remains available for computer programs, and this case does suggest some strategies programmers might use to protect their works—or their ability to leverage portions of existing code.
Copyright law has always been a strange fit for computer software. The Copyright Act protects “original expression” in “creative works” such as books, visual art, films, and the like. It does not extend to the functional or utilitarian aspects of a work. Computer programs are eligible for copyright protection, but they also exist for the purpose of performing functions. Therefore, programs can only be protected by copyright to the extent their choice of terminology and organization can be deemed expressive and original. Because any such expression is inextricably bound up with functionality, the Court refers to this as a “thin” layer of copyright protection.
The fair use doctrine exists as a way to exempt uses of another person’s copyrighted works when that use is technically an infringement, but nevertheless serves to promote the purposes of copyright. “In determining whether the use made of a work in any particular case is a 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.”17 U.S.C. §107.
In its Oracle v. Google decision, the Court emphasized that “fair use can play an important role in determining the lawful scope of a computer program copyright, such as the copyright at issue here. It can help to distinguish among technologies. It can distinguish between expressive and functional features of computer code where those features are mixed. It can focus on the legitimate need to provide incentives to produce copyrighted material while examining the extent to which yet further protection creates unrelated or illegitimate harms in other markets or to the development of other products. In a word, it can carry out its basic purpose of providing a context-based check that can help to keep a copyright monopoly within its lawful bounds.”
Applying the fair use analysis here, the Court noted that the nature of the declaring code at issue is so functional that its use cannot implicate any significant amount of copyrightable expression. It permitted engineers already familiar with Java code to more easily create interoperable programs, to the benefit of the entire software industry. The copied code was a tiny fraction of the overall program. And there was little reason to believe that this copying caused Oracle any measurable economic loss. For these reasons, all of the fair use factors weighed in Google’s favor.
Warner’s Technology and Intellectual Property team is always ready to help you navigate the tricky waters of software copyright law.