On April 5, 2021, the U.S. Supreme Court handed down a long-awaited decision in the contentious copyright battle between tech giants Google and Oracle that has has wound its way through the courts for more than a decade. But, in so doing, the Court baffled copyright pundits and intellectual property attorneys alike, most of whom expressed concern that the decision improperly expands the 'fair use' doctrine and may actually encourage illicit software copying.
In a 6-2 decision written by Justice Breyer, SCOTUS held that Google's copying of approximately 11,500 lines of Java code for use on Google's mobile Android platform constituted a fair use as a matter of law and therefore was not copyright infringement.
Oracle had argued in its 2010 lawsuit against Google filed in the Northern District of California that Google's decision to blatantly copy a substantial amount of its Java API code (Oracle owned it after purchasing Sun Microsystems in 2010) rather than spend the time and money to create its own "declaring" code.
The shortcut allowed Google programmers to use prewritten computing tasks in their own program and thereby streamline the deployment of programs compatible with Google's Android phones and other mobile platforms. Court documents claim that Google has benefitted from the copying (or shortcut) to the tune of tens of billions of dollars in additional revenue, all without a licensing or revenue sharing agreement with Oracle.
Oddly, SCOTUS avoided deciding the one key issue it had identified as the reason it had accepted the case from the Federal Circuit, the question of whether or not declaring code is even copyrightable. Instead, it focused on whether Google's use of the applicable code constituted fair use under the Copyright Act.
Ostensibly, the Court's decision found all four fair use factors "weighed heavily" in Google's favor ("the nature of the copyrighted work," "the purpose and character of the use," "the amount and substantiality of the portion used," and market effects). However, it seems more likely that in balancing the need for creative innovators to make use of existing works with that of enabling creators to be compensated for the reuse of their works by others, the Court considered this the most practical outcome.
Nevertheless, IP commentators like attorney Gene Quinn were quick to call the decision "capricious and arbitrary" and continuing "the trend of making software less protectable in the United States" because "[t]he copying was not a matter of necessity, it was a matter of convenience." Indeed, he and many others have bemoaned the impact the decision may have not only on the fair use doctrine but so too on the well-established concept of transformative use.
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