The question of fair use has been the subject of many notable court decisions, including one recent one from the Second Circuit Court of Appeals holding that Warhol’s use in the artwork of Lynn Goldsmith’s photographs wasn’t transformative and hence didn’t qualify for the fair use defense (see our alert on that decision here). In an eagerly awaited fair use decision in the computer software context, published April 5, 2021, the Supreme Court followed another path, holding for Google in its ten-year battle with Oracle, the owner of the popular Java software program.
Java’s purpose is to allow programmers to write programs that are interoperable, namely, able to run on any computer. Oracle owns a copyright registration for Java Standard Edition (SE), the current platform. In 2005, Google acquired Android, and it began to build its own software platform for smartphones. When Google’s license negotiations with Sun Microsystems broke down, its programmers copied about 11,500 lines of programming code from Java SE, using it in the Android Application Programming Interface (API). An API is a useful tool and time-saving measure: programmers use this pre-written code to build functions into their own programs rather than writing their own code.
Google had copied the “declaring code” portion of Java SE; in plain terms, the declaring code provides a straightforward way for programmers to call up programs that accomplish particular tasks. In evaluating the four fair use factors, the Supreme Court looked at Factor 1, the nature of the copyrighted work, and in no uncertain terms stated that it would not opine on whether this type of code was copyrightable. Rather, the Court said that since this type of code was inextricably bound to non-copyrightable functions, the declaring code was “further away from the core of copyright than most computer programs” and accordingly this first factor favored Google. 593 U.S. at ___, 22-24.
The Court found that the other three factors favored Google as well: Google’s purpose of the use was to reimplement the 11,500 lines to use for the smartphone API, and such reimplementation is consistent with the constitutional purpose of copyright: “to promote the progress of science and useful arts.” Factor 3 favored Google since the amount of code used was .4 percent of the entire Java code. Oracle’s argument that Google’s use of the declaring code was indisputably commercial did not sway the Court as the jury had decided “it would have been difficult for Sun to enter the smartphone market even had Google not used portions of the Sun Java API.” 593 U.S. at ___, 33.
So what does this decision mean for developers of software? How will they be compensated for their work? Will musicians who sample other’s works or artists who use other's works to create other artwork now argue that they, too, are entitled to the fair use defense since they are promoting the progress of science and useful arts by using a small percentage of other’s works? Only time will tell.