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Google’s Copyright Win Emphasizes ‘Greater Good’ in Fair Use

April 6, 2021, 9:00 AM

The Supreme Court’s decision that Alphabet Inc.'s Google made fair use of Oracle Corp.’s programming code promises to have a broader impact on how courts decide many fair use cases.

The justices ruled that Google’s copying of a software application programming interface to tailor its Android operating system to smartphones was fair use.

The court’s ruling was focused on Google’s use of the code. But the opinion provides widely applicable guidance on the factors that courts consider in a fair use analysis, attorneys and legal scholars said.

“This is going to be really interesting for fair use cases going forward,” said Charles Duan, a senior fellow at the R Street Institute, a Washington, D.C. think tank. “There are a lot of statements out of this opinion that have application beyond just the software context.”

The ruling also could lead to more litigation and more claims of fair use in software cases. Companies entering a licensing negotiation will have the ruling in mind, and potential licensees may be willing to pay less for a license, knowing they have a stronger fair use defense.

“You’re certainly going to see more and more of this type of litigation,” Noah Robbins, a Ballard Spahr LLP intellectual property attorney, said. “For the licensee, the stakes now are much lower given a helpful Supreme Court opinion on fair use in this context.”

Markets and Values

Attorneys said the opinion could affect how courts decide fair use in various types of copyright cases.

Courts weighing fair use consider how the use affects the market for or value of the copyrighted material. The focus often is on the amount of money the copyright owner might lose.

But the Supreme Court said courts must also take into account “the public benefits the copying will likely produce.” It said Google’s use of Oracle’s Java API could lead to new products, creative improvements, and new applications.

“The court is inviting future courts to compare the plaintiff’s economic harm against the public benefits of the copyright, almost suggesting that has to be a part of thinking about harm,” said Christine Haight Farley, a professor at the American University Washington College of Law.

“Future parties that are arguing for fair use,” Farley added, “are going to come back to this part of the case and say, ‘Don’t just look at me. Don’t just look at them. Think about the greater good, think about the public benefits the copying will likely produce.’”

The Supreme Court also found the “purpose and character” of Google’s copying was transformative. Its use of Oracle’s API sought to create new products and expand the usefulness of Android-based smartphones, among other things, the court said.

That reasoning could be applicable to other works—including parodies and commentaries—that are new works and create new markets, according to Duan.

“This is going to be something that they’re going to be able to point to, saying that fair use ought to account for the additional creativity that people put in,” Duan said.

‘New and Transformative’

Writing for the court, Justice Stephen Breyer said Google “reimplemented a user interface,” and took “only what was needed to allow users to put their accrued talents to work in a new and transformative program.”

The decision provides a degree of cover for software developers who re-implement APIs, legal scholars said. “Reimplementation” was defined as building a system that repurposes an existing system’s words and syntax.

Other uses of APIs will be evaluated on a case-by-case basis, as fair use involves a fact-specific analysis. But the ruling provides developers with a road map for defending against copyright infringement claims, Robbins said.

“This isn’t giving carte blanche to take API,” Robbins said. “It certainly, though, does strengthen your ability to ultimately prevail on a fair use defense.”

Dodged Question

The justices dodged the broader question of whether APIs are copyrightable, saying it assumed that they were for the sake of the case. The U.S. Court of Appeals for the Federal Circuit had rejected Google’s argument that the APIs weren’t copyrightable.

Had the court ruled APIs weren’t entitled to copyright protection, it could have given companies a potential quick out from a lawsuit. Fair use defenses are often mired in factual disputes that can take a time—and money —to resolve.

“Any ruling that would say, ‘no copyright here,’ would help those defendants who may have meritorious fair use claims but don’t have the wherewithal to litigate them,” Farley said.

In a dissent, Justice Clarence Thomas said he would hold that the code is protected by copyright. Haynes and Boone LLP attorney Jason Bloom said had the court thought there was a good argument that it wasn’t copyrightable, that would’ve been a natural way to decide the case.

“By assuming without deciding, I think that weighs pretty strongly in favor of copyrightability even though they didn’t say it,” Bloom said.

The case is Google LLC v. Oracle America, Inc., U.S., No. 18-956, 4/5/21.

To contact the reporter on this story: Matthew Bultman in New York at mbultman@correspondent.bloomberglaw.com

To contact the editors responsible for this story: Keith Perine at kperine@bloomberglaw.com; Kibkabe Araya at karaya@bloombergindustry.com

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