At long last – after more than ten years, two trials and three appeals – the copyright lawsuit in Google v. Oracle has come to a close. In a surprise ending (given the emphasis on copyrightability for much of the case) on April 5, 2021 the Supreme Court held that Google’s copying of 11,500 lines of code from Oracle’s Java SE Application Programming Interface (the “Java API”) and its use in Google’s Android mobile operating system was copyright fair use.
A deeply disappointing ending for Oracle, which was hoping for a third trial, where it intended to seek ten billion dollars in damages.
I’ve written about Oracle v. Google more than any other case over the last ten years – I count 12 posts (enter “java” in the search bar above to find them or click here and scroll to bottom), and I have a few observations. But first, here is my highly compressed summary of the court’s fair use decision:
(1) The Oracle Java API is a functional “user interface,” analogous to a gas pedal in a car or the QWERTY keyboard. It is entitled to only “thin” copyright protection. (2) Google used the Java API to develop the Android platform software for a smartphone, a “transformative” use. (3) The 11,500 lines of code copied by Google represent less than one-half of one percent of the Java platform. (4) Since many programmers are familiar with the Java API, Google’s copying benefited the public by allowing programmers to use their knowledge and experience to program Android, rather than having to learn a new API. (5) Android did not harm Oracle’s actual or potential markets for the Java API (or so the jury could have found).
What Does Oracle v. Google Mean for the Copyrightability of APIs? For most of the ten years this case was in the courts the central issue was whether Oracle’s Java API was protected by copyright. However, the Supreme Court bypassed that difficult issue – it decided the case on fair use alone. The Federal Circuit’s holding that the Java API is copyrightable remains as precedent in the Federal Circuit, and the Federal Circuit decision can be cited for this holding, with the caveat “reversed on other grounds.” It’s not, however, binding on any other circuit, not even the Ninth Circuit, the circuit from which the case was appealed.
This means that anyone using an API and facing a claim of infringement could still have to relitigate copyrightability and enter the murky waters of fair use – murky because the litigation outcome of fair use is notoriously unpredictable, with a high reversal rate on appeal in the federal circuit courts.
Many companies in the software industry supporting Google had hoped for a ruling that APIs are not protectable, reversing the Federal Circuit. Instead of black and white they have continued uncertainty. This means that it remains risky to use an API without consent, since the user may still be subject to a copyright challenge.
What Does Oracle v. Google Mean for Fair Use When it Comes to APIs? To read the computer press you might mistakenly conclude that copying of APIs is fair use. While Google certainly made it easier to establish fair use in this context, the case doesn’t hold that APIs are subject to fair use in every instance, as a matter of law. For example, not every API will share the popularity of the Java API, and not every case will reflect the same economic non-impact that was present here. In other words, in a different context Google could be distinguishable.
What Does Oracle v. Google Mean for Jury Trials in Fair Use Cases? The second trial in this case was a jury trial on Google’s fair use defense. Oracle argued that fair use should be determined by the judge as a question of law de novo, while Google argued that the jury’s verdict should control, and be reversed only if it lacked substantial evidence to justify it.
The Supreme Court held that fair use is an equitable defense, and therefore should be decided by the judge. The Court didn’t rule out fact finding by a jury, but the judge delivers the last word.
As a practical matter, this means the end of jury trials in copyright fair use cases in the U.S. It’s not inconceivable that a litigant would ask for a jury on fair use, but this would now require a detailed special verdict, and it would make little sense for a plaintiff or defendant to bifurcate responsibility for the case in that manner. It’s far easier to let the judge determine the facts, since the judge will be weighing the four copyright fair use factors. So, juries are likely a thing of the past in fair use litigation.
Copyright fair use cases have often been decided on summary judgment, and given the responsibility now added to the role of the judge, summary judgment resolutions will be even more common in the future.
What Does Oracle v. Google Mean for Fair Use Beyond Software? Many copyright observers will be tempted to provide opinions on what this case means for copyright fair use, and in particular fair use outside computer software. However, it’s too early for this. This was the Supreme Court’s first major opinion on the fair use doctrine in over 25 years and it will be parsed and applied by the federal district and appellate courts for years to come in ways that are difficult to predict today. Google may broaden fair use law generally, or it may end up being a fact-bound case about functional computer code with little long-term impact for copyright fair use – it’s too early to say.
Nevertheless, it didn’t take long for lawyers to argue the implications of the case beyond software. In the visual art case Warhol v. Goldsmith, decided in March 2021 (just a few days before Google), the Second Circuit held that Andy Warhol’s use of Lynn Goldsmith’s photograph of Prince to create unauthorized silkscreen and pencil artworks was not fair use. Google was decided soon afterwards, and the Warhol Foundation filed a petition for panel rehearing and rehearing en banc, arguing that Google broadens the law of transformative use and public benefit, and established a new balancing analysis for copyright fair use which favors Warhol. As of this post, the Second Circuit has not acted on this petition.
The Supreme Court Decision Owes a Large Debt to the First Circuit’s Decision in Lotus v. Borland. I can’t read Justice Breyer’s majority decision without seeing it’s debt to the First Circuit’s 1995 decision in Lotus v. Borland, and in particular Judge Boudin’s concurring opinion in that case. To my eyes, in some respects Oracle is an endorsement of Lotus’s “method of operation” holding in the guise of fair use.
I suspect that Judge Breyer argued that the Court should hold that the Java API was a “method of operation,” and therefore uncopyrightable, as suggested by Lotus, which involved a menu-command user interface. He couldn’t persuade enough justices to back this theory, but when he wrote the opinion he had Lotus in mind, and the decision reflects it.