Monday, April 5, 2021

U.S. Supreme Court, Google LLC v. Oracle America, Inc., Docket No.18-956

 

Copyright

 

Computer Programs

 

Software Platform

 

Fair Use

 

Market Substitute

 

Unrealized Licensing Opportunities

 

 

 

Google’s limited copying of the Java SE Application Programming Interface allowed programmers to put their accrued talents to work in a transformative program and constituted a fair use of that material under copyright law.

 

 

Appendix A: Computer System Diagram:  Some readers might find it helpful to start with an explanation of what a “software platform” is. Put simply, a software platform collects all of the software tools that a programmer may need to build computer programs. The Android platform, for instance, includes an “operating system,” “core libraries,” and a “virtual machine,” among other tools. App. 197–198.

 

 

Oracle America, Inc., owns a copyright in Java SE, a computer platform that uses the popular Java computer programming language. In 2005, Google acquired Android and sought to build a new software platform for mobile devices. To allow the millions of programmers familiar with the Java programming language to work with its new Android platform, Google copied roughly 11,500 lines of code from the Java SE program. The copied lines are part of a tool called an Application Programming Interface (API). An API allows programmers to call upon prewritten computing tasks for use in their own programs. Over the course of protracted litigation, the lower courts have considered (1) whether Java SE’s owner could copyright the copied lines from the API, and (2) if so, whether Google’s copying constituted a permissible“fair use” of that material freeing Google from copyright liability. In the proceedings below, the Federal Circuit held that the copied lines are copyrightable. After a jury then found for Google on fair use, the Federal Circuit reversed, concluding that Google’s copying was not a fair use as a matter of law. Prior to remand for a trial on damages, the Court agreed to review the Federal Circuit’s determinations as to both copyrightability and fair use.

 

 

Held: Google’s copying of the Java SE API, which included only those lines of code that were needed to allow programmers to put their accrued talents to work in a new and transformative program, was a fair use of that material as a matter of law.

 

 

To decide no more than is necessary to resolve this case, the Court assumes for argument’s sake that the copied lines can be copyrighted, and focuses on whether Google’s use of those lines was a “fair use.”

 

 

To determine whether Google’s limited copying of the API here constitutes fair use, the Court examines the four guiding factors set forth in the Copyright Act’s fair use provision: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and the effect of the use upon the potential market for or value of the copyrighted work. The Court has recognized that some factors may prove more important in some contexts than in others.

 

 

The nature of the work at issue favors fair use. The copied lines of code are part of a “user interface” that provides a way for programmers to access prewritten computer code through the use of simple commands. As a result, this code is different from many other types of code, such as the code that actually instructs the computer to execute a task. As part of an interface, the copied lines are inherently bound together with uncopyrightable ideas (the overall organization of the API) and the creation of new creative expression (the code independently written by Google). Unlike many other computer programs, the value of the copied lines is in significant part derived from the investment of users (here computer programmers) who have learned the API’s system. Given these differences, application of fair use here is unlikely to undermine the general copyright protection that Congress provided for computer programs.

 

 

The inquiry into the “the purpose and character” of the use turns in large measure on whether the copying at issue was “transformative,” i.e., whether it “adds something new, with a further purpose or different character.” Campbell, 510 U. S., at 579. Google’s limited copying of the API is a transformative use. Google copied only what was needed to allow programmers to work in a different computing environment without discarding a portion of a familiar programming language. Google’s purpose was to create a different task-related system for a different computing environment (smartphones) and to create a platform—the Android platform—that would help achieve and popularize that objective. The record demonstrates numerous ways in which reimplementing an interface can further the development of computer programs. Google’s purpose was therefore consistent with that creative progress that is the basic constitutional objective of copyright itself.

 

 

Google copied approximately 11,500 lines of declaring code from the API, which amounts to virtually all the declaring code needed to call up hundreds of different tasks. Those 11,500 lines, however, are only 0.4 percent of the entire API at issue, which consists of 2.86 million total lines. In considering “the amount and substantiality of the portion used” in this case, the 11,500 lines of code should be viewed as one small part of the considerably greater whole. As part of an interface, the copied lines of code are inextricably bound to other lines of code that are accessed by programmers. Google copied these lines not because of their creativity or beauty but because they would allow programmers to bring their skills to a new smartphone computing environment. The “substantiality” factor will generally weigh in favor of fair use where, as here, the amount of copying was tethered to a valid, and transformative, purpose.

 

 

The fourth statutory factor focuses upon the “effect” of the copying in the “market for or value of the copyrighted work.” §107(4). Here the record showed that Google’s new smartphone platform is not a market substitute for Java SE. The record also showed that Java SE’s copyright holder would benefit from the reimplementation of its interface into a different market.

 

 

(…) The Court does not overturn or modify its earlier cases involving fair use.

 

 

(…) Sega Enterprises Ltd. v. Accolade, Inc., 977 F. 2d 1510, 1521–1527 (CA9 1992) (holding that wholesale copying of copyrighted code as a preliminary step to develop a competing product was a fair use).

 

 

(…) See also Brief for American Antitrust Institute as Amicus Curiae (“Copyright on largely functional elements of software that have become an industry standard gives a copyright holder anticompetitive power”).

 

 

(…) Several features of Google’s copying suggest that the better way to look at the numbers is to take into account the several million lines that Google did not copy. For one thing, the Sun Java API is inseparably bound to those task-implementing lines. Its purpose is to call them up. For another, Google copied those lines not because of their creativity, their beauty, or even (in a sense) because of their purpose. It copied them because programmers had already learned to work with the Sun Java API’s system, and it would have been difficult, perhaps prohibitively so, to attract programmers to build its Android smartphone system without them. Further, Google’s basic purpose was to create a different task-related system for a different computing environment (smartphones) and to create a platform—the Android platform—that would help achieve and popularize that objective. The “substantiality” factor will generally weigh in favor of fair use where, as here, the amount of copying was tethered to a valid, and transformative, purpose.

 

 

(…) Google’s economic expert told the jury that Android was not a market substitute for Java’s software. As he explained, “the two products are on very different devices,” and the Android platform, which offers “an entire mobile operating stack,” is a “very different type of product” than Java SE, which is “just an applications programming framework.” App. 256. Taken together, the evidence showed that Sun’s mobile phone business was declining, while the market increasingly demanded a new form of smartphone technology that Sun was never able to offer. Finally, the jury also heard evidence that Sun foresaw a benefit from the broader use of the Java programming language in a new platform like Android, as it would further expand the network of Java-trained programmers. Id., at 131–133; see also id., at 153 (“Once an API starts getting reimplemented, you know it has succeeded”). In other words, the jury could have understood Android and Java SE as operating in two distinct markets. And because there are two markets at issue, programmers learning the Java language to work in one market (smartphones) are then able to bring those talents to the other market (laptops). See 4 Nimmer on Copyright §13.05[A][4] (explaining that factor four asks what the impact of “widespread conduct of the sort engaged in by the defendant” would be on the market for the present work). Sun presented evidence to the contrary. Indeed, the Federal Circuit held that the “market effects” factor militated against fair use in part because Sun had tried to enter the Android market. 886 F. 3d, at 1209 (Sun sought licensing agreement with Google). But those licensing negotiations concerned much more than 37 packages of declaring code, covering topics like “the implementation of Java’s code” and “branding and cooperation” between the firms. App. 245; see also 4 Nimmer on Copyright §13.05[A][4] (cautioning against the “danger of circularity posed” by considering unrealized licensing opportunities because “it is a given in every fair use case that plaintiff suffers a loss of a potential market if that potential is defined as the theoretical market for licensing the very use at bar”). In any event, the jury’s fair use determination means that neither Sun’s effort to obtain a license nor Oracle’s conflicting evidence can overcome evidence indicating that, at a minimum, it would have been difficult for Sun to enter the smartphone market, even had Google not used portions of the Sun Java API.

 

 

 

(U.S. Supreme Court, April 5, 2021, Google LLC v. Oracle America, Inc., Docket No.18-956, Justice Breyer, revised April 6, 2021)

 

(BREYER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SOTOMAYOR, KAGAN, GORSUCH, and KAVANAUGH, JJ., joined. THOMAS, J., filed a dissenting opinion, in which ALITO, J., joined. BARRETT, J., took no part in the consideration or decision of the case)

 

 

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