Hailed by Google and others as the “copyright case of the decade,” the U.S. Supreme Court issued its long awaited decision in Google LLC.v Oracle America, Inc. The Court sided with Google in deciding that it is “fair use” for Google to verbatim take 11,000 lines of Java code and incorporate that into their application programming interface (“API”) software.

Notably, the Supreme Court made no ruling on the fundamental issue of whether APIs are eligible for copyright protection. Google argued that they were not. Instead, the Court assumed for the sake of considering fair use that APIs were protectable, and then found that the fair use doctrine applied to Google’s use of the code. Fair use in the context of this particular case involved whether the use by Google of Oracle’s code was “transformative.” In ruling for Google, the Court determined that Google transformed Oracle’s API code into something different, even though the code was literally copied. For that reason, the decision will be viewed by copyright owners as a blow, but by application writers for Android as a plus.

Justice Breyer, writing for a 6-2 majority, clarified that the issue of fair use was not for the jury, but was a matter of law. While this was not what Google had argued, the “fact versus law” question was not determinative in this case, but in future cases, lawyers will pay close attention to which facts are nonetheless important to prove as a foundation upon which to build fair use law.

Justice Barrett, who joined the bench after oral arguments, did not participate in the decision. One wonders how the case may have turned out if Justice Ginsberg had been on the bench. Known as a strong supporter of copyright protection, she may have been able to persuade other colleagues to join a pro copyright Oracle position. In any event, Justice Breyer’s rather negative view of API software may render copyright protection difficult, even though the Court did not rule out protection.