U.S. Supreme Court Set to Rule on Landmark Copyright Fair Use Case in Google v. Oracle

On November 25, 2019, the U.S. Supreme Court granted a writ of certiorari in the landmark copyright infringement case of Google, LLC v. Oracle America, Inc.^[1]  In a nine-year legal battle that Google has called “the copyright case of the decade,”^[2] the Supreme Court will have to decide whether Google should have to pay Oracle for Google’s use of 11,000 lines of Oracle’s Java software code in Android, Google’s mobile phone operating system.^[3]

In June 2016, a jury for the Northern District of California found that although Google had infringed on Oracle’s copyright, Oracle could not recover against Google because its use of Oracle’s open-source Java code in Android constituted fair use under 17 U.S.C. §107.^[4] Fair use is a complete defense to copyright infringement under 17 U.S.C. §107.^[5] The statute lists four factors for courts and jurors to use when ruling on the issue of fair use:

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.^[6]

Although Google used its Android operating system for commercial purposes, the jury found that “Google’s decision to make Android available open source and free for all to use had non-commercial purposes as well (such as the general interest in sharing software innovation).”^[7] The jury’s decision was applauded by many in the tech community who are concerned that affording copyright protection to APIs, such as Oracle’s Java, would “have a profound impact on interoperability, and, therefore, innovation.”^[8] APIs (application programming interfaces) allow programs to communicate with each other, and are vital functions of program development.^[9]. Those in favor of the jury’s decision reason that if APIs are copyrightable, it will significantly limit a program’s compatibility with various operating systems, which stymies invention, and strengthens the monopoly power of the biggest players in tech.^[10]

The warm reception of the jury’s decision in 2016 was short-lived as the Federal Circuit granted Oracle’s appeal to vacate the jury’s judgment on the grounds that Google was not entitled to a fair use defense as a matter of law.^[11] The Federal Circuit’s decision rested primarily on the first factor of 17 U.S.C. §107, concerning Google’s commercial nature of its Android operating system.^[12] “We conclude that allowing Google to commercially exploit Oracle’s work will not advance the purposes of copyright in this case…There is nothing fair about taking a copyrighted work verbatim and using it for the same purpose and function as the original in a competing platform.”^[13]

The Supreme Court will now have to consider these issues under heightened scrutiny as the Trump administration had submitted a brief for the United States as amicus curiae, urging the Court to side with Oracle in upholding copyright protection for its Java API and deny review.^[14]