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Copyright Blog

Supreme Court to Hear First Fair Use Case in 25 Years

The saga of Oracle v. Google may finally get resolved

For the first time since the Acuff-Rose decision in 1994, the Supreme Court of the United States has agreed to hear a copyright infringement case addressing fair use. The questions presented to the Court are: (1) whether copyright protection extends to a software interface; and (2) whether Google's use of a software interface in the context of creating a new computer program constitutes fair use.

The case of Oracle v. Google has a long and confusing procedural history. Oracle first sued Google for both patent and copyright infringement based on Google’s use of 11,330 lines of Oracle’s Java API (a software interface) in its Android software. In May 2012, the district court initially held APIs are not subject to copyright, finding the APIs to constitute “methods of operation” under 17 U.S.C. 102(b). The district court further held the APIs were not copyrightable under the merger doctrine, which provides that, “when there is only one (or only a few) ways to express something, then no one can claim ownership of such expression by copyright.” Two years later, the Federal Circuit reversed, holding that the Java APIs in question were protected under copyright. The Federal Circuit reasoned that § 102(b) “does not extinguish the protection accorded a particular expression of an idea merely because that expression is embodied in a method of operation.” The Federal circuit remanded the case to try Google’s fair use defense. Google filed a petition with the Supreme Court, asking the Court to review the Federal Circuit’s decision. This first petition was denied.

In May 2016, a jury at the district court found that Google’s use of Oracle’s Java API was fair use. This verdict and decision by the district court was reversed again by the Federal Circuit in 2018 and remanded for a trial to determine damages. The Federal Circuit relied primarily on the first and fourth factors of fair use, which are (1) the purpose and character of the use; and (4) the effect on the potential market for or value of the copyrighted work. For the first factor, the Federal Circuit determined the commercial nature of Google’s use weighed against fair use, and that Google’s use was not transformative because the APIs served the same function in the Android software as in the Java platform. For the fourth factor, the Federal Circuit found Android competed directly with Java “in the market for mobile devices” because Java had been used in early mobile phones, and Google’s copying affected potential markets Oracle might enter.

Following the Federal Circuit’s 2018 decision, Google filed a petition for cert with the Supreme Court early in 2019, asking the Court to review both decisions from the Federal Circuit. The Supreme Court granted Google’s petition in November 2019, and oral arguments are expected in March 2020. Opening briefs have been filed both by Oracle and by Google. Numerous amicus briefs have also been filed at all stages of the litigation. Before the Supreme Court, Google is in essence arguing that APIs are not copyrightable, and even if they are, Google can raise a successful fair use defense. Oracle alternatively argues that the APIs are subject to copyright, and Google cannot rely on fair use.