Copying from a copyrighted computer program may be fair dealing to the extent necessary to promote the adoption of the use of talents accumulated in the creation of a new software platform | Knobbe Martens



Before the United States Supreme Court (Opinion of Justice Breyer) on Writ of Certiorari to the United States Court of Appeals for the Federal Circuit.

Summary: When the use of copyrighted computer code is intrinsically linked to non-copyrighted ideas and new creative expression, it may be fair to copy what is necessary to Reimplement a user interface so that others can use their accumulated talents.

Google sought to use Oracle’s Java platform to create a software platform for smartphones, but could not accept a license. Google built its own Android platform and copied part of Oracle’s application programming interface (“API”) from the Java platform. Oracle sued Google for copyright infringement. The district court concluded that the copied code was not protected by copyright. On appeal, the Federal Circuit overturned the copyright determination and remanded for a trial on the issue of fair dealing. The district court held a jury trial solely on the issue of fair use. The jury found that Google had shown fair use. On appeal, the Federal Circuit again backed down, ruling that Google’s use of the Java API was not fair use and dismissed it for damages. Google appealed to the Supreme Court.

The Supreme Court granted certiorari. The Supreme Court did not address the copyright of the Java API, and instead assumed that it is protected by copyright. The Supreme Court then turned to the issue of fair dealing. The Supreme Court agreed with the Federal Circuit that fair dealing is a question of mixed fact and law, with deference to a jury’s findings on the underlying facts and the ultimate fair dealing issue decided by the judge de novo. The Supreme Court applied the four statutory factors for fair dealing: (1) the purpose and character of the dealing; (2) the nature of the copyrighted work; (3) the amount and the substantial nature of the portion withdrawn; and (4) effect of use on the potential market. The Supreme Court concluded that all the factors favored Google and overturned the federal circuit, ruling that Google’s use of the Java API was fair use because Google only took what was necessary to allow Java programmers to ” use their acquired skills in a new and transformative program.

First, the Supreme Court noted that the nature of the copied Java API differed from other types of copyrighted computer code. The copied Java API was inextricably linked to ideas not protected by copyright, such as the idea of ​​organizing tasks, as well as to non-copied parts of the Java API which actually tells the computer steps to complete a task. The Supreme Court ruled that the value of the copied code stemmed from the programmers’ investment of time and effort in adopting the new system. These considerations have made the copied parts further removed from the copyright kernel than most computer programs. Second, the Supreme Court ruled that Google’s goal of using the Java API, to reimplement a user interface that could easily be used by other programmers, was consistent with the constitutional goal of copyright in the promotion of “progress” and was transformative. Third, the Supreme Court ruled that Google did not copy the code for its creativity or purpose, but to allow others to adopt the new Android platform and write new programs using their experience. Java. Fourth, the Supreme Court ruled that there was evidence that Oracle was unable to financially benefit from the smartphone market, that Android was a separate and more advanced market from the Java platform, and that Oracle foresaw an advantage of wider use of the Java programming language through Android.

Justice Thomas dissented, saying the legal definition of a computer program in the Copyright Act covered the copied code. So while Oracle cannot protect the idea behind the copied code, it can protect the specific expression of the idea represented in the copied code. Dissent also disagreed with the four-factor fair dealing analysis, noting that at least three of the four factors favored Oracle. In support of the lack of fair use, Dissent noted that Google’s copy decimated Oracle’s market and interfered with Oracle’s licensing opportunities; The purpose of Google’s copy was primarily commercial; and the substantial copy is what attracted programmers to the Android platform.

Publisher: Paul Stewart


Gordon K. Morehouse