{"id":8439,"date":"2021-04-23T14:35:00","date_gmt":"2021-04-23T14:35:00","guid":{"rendered":"https:\/\/cpip.gmu.edu\/?p=8439"},"modified":"2026-02-03T20:12:15","modified_gmt":"2026-02-03T20:12:15","slug":"recap-of-the-supreme-courts-google-v-oracle-opinion","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2021\/04\/23\/recap-of-the-supreme-courts-google-v-oracle-opinion\/","title":{"rendered":"[Archived Post] Recap of the Supreme Court\u2019s Google v. Oracle Opinion"},"content":{"rendered":"

\"aThe following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.<\/em><\/strong><\/p>\n

By Liz Velander<\/strong><\/p>\n

The Supreme Court finally reached a determination in the decade-long dispute between two of the biggest technology companies in the world, Google and Oracle. Many have long-awaited the Court\u2019s decision<\/a> in this case, as it had the potential to provide market certainty in the software industry through its copyrightability analysis. The Court ultimately declines to give that certainty by bypassing the copyrightability issue and choosing to base its holding on a fact-intensive fair use analysis. The Court does this so as to \u201cnot answer more than is necessary to resolve the parties\u2019 dispute,\u201d \u201cgiven the rapidly changing technological, economic, and business-related circumstances.\u201d It emphasizes that its holding is narrow, only applies to declaring code, and does not modify its prior cases on fair use. However, by framing its opinion this way, the Court provides new arguments for infringers to use in a fair use defense in the software sphere and beyond. For this reason, the Court\u2019s decision is not as narrow as it sets out to be. It may lead to lower court decisions that broaden the fair use doctrine and limit the copyright protection given to software.<\/p>\n

The Court\u2019s decision broadens fair use by using the doctrine to loosen copyright protection for certain types of code, allowing for a more expansive reading of a \u201ctransformative use,\u201d and giving great weight to the public benefit of the use. Before it engages in its fair use analysis, the Court states that \u201cfair use can play an important role in determining the lawful scope of a computer program copyright, such as the copyright at issue here.\u201d Fair use \u201ccan distinguish between expressive and functional features of computer code where those features are mixed.\u201d It can also \u201cfocus 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.\u201d The Court describes fair use as a \u201ccontext-based check that can help to keep a copyright monopoly within its lawful bounds.\u201d<\/p>\n

To highlight the ability of fair use to accomplish these goals, the Court begins its analysis with the second statutory factor<\/a>, \u201cthe nature of the copyrighted work.\u201d The Court uses this factor to discuss issues that would have come up if it analyzed the copyrightability of Oracle\u2019s material, such as the applicability of the merger doctrine. It then moves to \u201cthe purpose and character of the use,\u201d where it adopts an expansive reading of what constitutes a \u201ctransformative use.\u201d The biggest impact of the Court\u2019s fair use analysis, however, will likely come from the great weight it gives to the public benefit of the use under the market effect factor. By using fair use to determine \u201cthe lawful scope of a computer program copyright,\u201d the Court\u2019s holding may inadvertently broaden the fair use doctrine.<\/p>\n

The Nature of the Copyrighted Work<\/strong><\/p>\n

The Court begins its analysis with describing \u201cthe nature of the copyrighted work.\u201d The copyright at issue protects a portion of Oracle\u2019s Java SE platform, called declaring code<\/em>. Java SE has three essential parts: (1) implementing code, (2) method calls, and (3) declaring code. Implementing code<\/em> tells the computer how to execute the particular task the programmer asks it to perform. Method calls <\/em>are commands that help the computer carry out the task by choosing the correct programs written in implementing code. The declaring code <\/em>is how the method call actually locates and invokes the particular implementing code that it needs to instruct the computer how to carry out a particular task.<\/p>\n

For each task, the specific method call entered by the programmer matches up with a specific declaring code inside Java SE. That declaring code provides both the name for each task and organizes them within Java SE\u2019s library. In this sense, the declaring code and the method call form a link, allowing the programmer to draw upon the thousands of prewritten tasks, written in implementing code. Without that declaring code, the method calls entered by the programmer would not call up the implementing code.<\/p>\n

In this case, Google did not copy the implementing code from Oracle\u2019s Java SE platform; it copied the declaring code. The Court draws a \u201ccritical line\u201d between the uncopied implementing code and the copied declaring code under this factor. On one hand is the innovative implementing code and on the other, user-centered declaring code. The Court explains that the writing of implementing code requires balancing considerations as to how quickly a computer can execute a task or the likely size of a computer memory. The Court says that this balancing is \u201cthe very creativity that was needed to develop the Android software for use not in laptops or desktops but in the very different context of smartphones.\u201d<\/p>\n

Declaring code, the Court says, embodies a different kind of \u201ccreativity\u201d because it is user facing. It must be designed and organized in a way that is intuitive and understandable to developers so they can invoke it. As part of a user interface, declaring code differs from most computer code because \u201cits use is inherently bound together with uncopyrightable ideas (general task division and organization) and new creative expression (Android\u2019s implementing code).\u201d For these reasons, the Court concludes that \u201cthe declaring code is, if copyrightable at all, further than are most computer programs (such as the implementing code) from the core of copyright.\u201d Therefore, the Court finds that the second factor, \u201cnature of the copyrighted work,\u201d points in the direction of fair use.<\/p>\n

The Purpose and Character of the Use<\/strong><\/p>\n

The Court explains that the inquiry into \u201cthe purpose and character\u201d of the use turns in a large measure on whether the copying at issue was \u201ctransformative,\u201d that is, whether it \u201cadds something new, with a further purpose or different character.\u201d The Court finds that, even though Google copied Oracle\u2019s declaring code verbatim, its use was \u201ctransformative\u201d because it furthered the development of software programs.<\/p>\n

The Court explains that what Google did is known as \u201c\u2018reimplementation,\u2019 defined as the \u2018building of a system . . . that repurposes the same words and syntaxes\u2019 of an existing system.\u201d Google \u201creimplemented\u201d Oracle\u2019s declaring code to allow programmers expert in the Java programming language to use the \u201ctask calling\u201d system that they had already learned. By using the same declaring code, programmers using the Android platform can rely on the method calls that they are already familiar with to call up particular tasks. Then Google\u2019s own implementing code carries out those tasks.<\/p>\n

The Court concludes that Google\u2019s copying was a transformative use. \u201cGoogle\u2019s purpose was to create a different task-related system for a different computing environment (smartphones) and to create a platform\u2014the Android platform\u2014that would help achieve and popularize that objective.\u201d Such use is \u201cconsistent with the creative \u2018progress\u2019 that is the basic constitutional objective of copyright itself.\u201d Therefore, the purpose and character of Google\u2019s copying was transformative to the point at which this factor also weighs in favor of fair use.<\/p>\n

The Amount and Substantiality of the Portion Used<\/strong><\/p>\n

\u00a0<\/strong>The Court says that the question here is whether the over 11,000 lines of code Google copied should be viewed in isolation or as one part of a considerably greater whole. On one hand, those lines of code amount to virtually all the declaring code needed to call up hundreds of different tasks. On the other hand, if one considers the entire set of software material in the Java SE platform, the quantitative amount copied was small (only 0.4 percent).<\/p>\n

The Court decides to view Google\u2019s copying as one part of a greater whole because the amount of copying was \u201ctethered to a valid, and transformative, purpose.\u201d It explains that Google did not copy the lines because of their creativity but because programmers had already learned to work with the Java SE platform, and it would have been difficult to attract programmers to build its Android smartphone system without them. It describes the portion of the declaring code used at \u201cthe key that [Google] needed to unlock the programmers\u2019 creative energies. And it needed those energies to create and improve its own innovative Android systems.\u201d For these reasons, the Court holds that this factor weighs in favor of fair use.<\/p>\n

Market Effects <\/strong><\/p>\n

The fourth statutory factor focuses upon the \u201ceffect\u201d of the copying in the \u201cmarket for or value of the copyrighted work.\u201d The Court explains that this requires a court to consider the copyright owner\u2019s potential loss of revenue, the source of the loss, and the public benefits the copying will likely produce. As to the likely amount of loss, the Court states that Oracle was ill-positioned to enter the smartphone market, so the jury could have found that Android did not harm the actual or potential markets for Java SE. As to the source of the loss, the Court finds Android\u2019s profitability has much to do with third parties\u2019 (programmers\u2019) investment in the Java programs and less to do with Oracle\u2019s investment in creating the Java SE platform. It says that the Copyright Act does not protect third parties\u2019 investment in learning how to operate a created work.<\/p>\n

Finally, given programmers\u2019 investments in learning the Java SE platform, to allow enforcement of Oracle\u2019s copyright here would risk harm to the public by operating as a lock on innovation. \u201cThe result could well prove highly profitable to Oracle (or other firms holding a copyright in computer interfaces). But those profits could well flow from creative improvements, new applications, and new uses developed by users who have learned to work with that interface. To that extent, the lock would interfere with, not further, copyright\u2019s basic creativity objectives.\u201d The Court concludes that the uncertain nature of Oracle\u2019s \u201cability to compete in Android\u2019s 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\u2014market effects\u2014also weighs in favor of fair use.\u201d<\/p>\n

The Court ends its opinion by noting that \u201cthe fact that computer programs are primarily functional makes it difficult to apply traditional copyright concepts in that technical world.\u201d While that is certainly true, the Court made its work more difficult by basing its opinion in fair use instead of analyzing the copyrightability of Oracle\u2019s code in the first place.<\/p>\n","protected":false},"excerpt":{"rendered":"

The following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP. By Liz Velander The Supreme Court finally reached a determination in the decade-long dispute between two of the biggest technology companies in the world, Google and Oracle. Many have long-awaited the Court\u2019s decision in this case, […]<\/p>\n","protected":false},"author":3627,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10,17,51],"tags":[299,337,357,543,631,761,896,1364,1365,1417,1481],"class_list":["post-8439","post","type-post","status-publish","format-standard","hentry","category-copyright","category-fair-use","category-supreme-court","tag-code","tag-copyright-2","tag-copyrightability","tag-fair-use","tag-google-v-oracle","tag-java-se","tag-liz-velander","tag-software","tag-software-development","tag-supreme-court","tag-transformative-use"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/8439","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/users\/3627"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/comments?post=8439"}],"version-history":[{"count":1,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/8439\/revisions"}],"predecessor-version":[{"id":15623,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/8439\/revisions\/15623"}],"wp:attachment":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/media?parent=8439"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/categories?post=8439"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/tags?post=8439"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}